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Criminal Appeal No. 38 of 1956, decided on 5th April

(On appeal from the judgment and order of the High Court of West Pakistan at Lahore, dated the 17th November 1955, in Criminal Appeal No. 467 of 1955).

‑Granted for consideration of question admissibility or otherwise of statement with reference to 162, Criminal Procedure Code (V of 1898).

S. 162‑‑Only statements connected with steps in furtherance of the pending investigation barred‑‑Counter‑report made by accused held admissible.

One of the accused named in a First. Information Report in regard to an offence of murder lodged a report at the same police station a few hours after, laying information to effect that the murdered man had met his death as the result of a certain sequence of events different from the one set out in the First Information Report in which he had been cited as an accused. There was no definite evidence that investigation under the earlier report had already commenced when the accused made his report

Held, that in the context of section 162, Cr. P. C. the word investigation, must refer to the investigation of the specific allegation of crime already reported and therefore the section cast apply only to those statements which are steps in furtherance of the pending investigation. The mere fact that a statement was made during an investigation is not by itself sufficient to bring it under section 162. The question whether a statement was recorded 'in the course of an investigation or not is therefore a question. of fact to be decided on the circumstances of each case.

The expression in the course of an investigation occur ring in section 162 does not necessarily refer only to the duration of investigation and the only fact that a statement is made during this interval does not necessarily bring it under the section, irrespective of the circumstances in which it was made. So to interpret those words is to put the widest possible construction on a provision which has to be questioned in the narrowest possible sense as it is a special rule which excludes what under the general law is evidence available to the prosecution.

In the circumstances of the case, the deport made by the accused was held admissible against him in leis trial under the earlier report.

Pakala Narayana Swami v. Emperor A I R 1939 P C 47 ref.

Emperor v. Khawaja Nazir Ahead 711 A 203 ref.

Muhammad Iqbal Hussain, Advocate, Supreme Court, instructed by M. B. Khizar Tamimi, Attorney for Appel lant.

A. R. Changez, Advocate‑General, West Pakistan (Abdul Qayyum Advocate, Supreme Court with him) instructed by 1jaz Ali, Attorney for Respondent.

Date of hearing : 5th April 1956.

‑‑This is an appeal by special leave from the judgment of the West Pakistan High Court, Lahore, by which the convictions imposed on the appellant Shahamad and three of his co‑accused Fazil, Sajwara and Sajjada under sec tions 148, 302/149 and 449, P. P. C., in respect of the murder of one Muhammad Ali were maintained, but the sentence for the offence of murder was reduced from death to transporta tion for life. As regards the conviction of the appellant, Courts below relied on the report he had made to the police on the day of the murder in which he admitted his presence at the occurrence. In support of the application for special leave to appeal it was contended that statement was not admissible in evidence as prior to its being made to the police the first information in the case had been lodged and investigation had commenced. Special Leave was granted to the appellant for a consideration of this question. The application for special leave' was dismissed as far as the other convicted accused were concerned.

The material facts are these. At 1.35 p.m. on 16th August 1954, appellant Shahamad appeared before P. W. 18 A, S. I., Dipalpur Police Station and made a report making the following allegations. At about 7 a.m. that day while the appellant Shahamad and Mirza (one of the accused convicted by the trial Court but acquitted by the High Court) were sitting in their dera in the village of Salowal, Muhammad Alit deceased, armed with a spear and three others (names men tioned) armed with a spear and dangs accompanied by four others (names mentioned) who were armed with guns and on horseback went towards the chowk of the village. The appellant and Mirza also went there and when they reached the chowk, one Gomi arrived there. Muhammad All challenged Gomi who abused Muhammad Ali, and the latter then thrust hip spear into the abdomen of Gomi who fell down, and one of the companions of Muhammad Ali hit Gomi with a dang. Gomi was then taken to the hospital where he died; Muhammad Ali and his companions left the scene without tiding a shot, and Muhammad Ali hid himself in his house from where he was brought out by the crowd that gathered there. Subsequently he was found lying dead.

The report contains also particulars of enmity between the parties and ends with the statement that the appellant was a complainant and the a matter might be investigated. It was registered as an F.I.R. under section 302/149, P. P. C., but an earlier report had been lodged at the same Police Station by P. W. 9, one of the eye‑witnesses, at 10 a m. the same day, when P. W. 18 was away from the station. P. W. 2 a Foot Constable who was then in charge of the police station recorded the statement of P. W. 9, P. W. 18 on his return to the station was perusing this report when the appellant Shahamad appeared before him and reported as stated above. After P. W. 9's statement was recorded a Head Constable left for the spot of occurrence and that was also before the appellant made his report.

P. W. 9's report was to the following effect. On the 6th August 1954, at about 7 or 8 a.m. P. W. 8, while at his a heard a noise and on going in its direction, saw the appellant and his eight co‑accused (names mentioned) and Gomi deceased armed with guns and spears surrounding the kotha of Ashiq Hussain where Muhammad Ali had shut himself in. These persons challenged Muhammad Ali shying that they would not leave him alive, and in spite of the entreaties of several persons (names mentioned) to desist, the‑y broke open the door stating that Muhammad Ali had frilled two of their men a year ago. Muhammad Ali tried to escape when Gomi pierced him with a spear, whereupon Muhammad Ali thrust his spear into Gomi. Accused Sajjada then speared Muhammad Ali in the abdomen and accused Sa jwara and Fazil who were armed with guns fired at him. Muhammad Ali fell down when accused Muhammad and Noora struck him with hatchets. Muhammad Ali died and his body was dragged to the chowk and left there.

Investigation was made in respect of both these versions and. ultimately persons accused m P. W. 9's report were challaned while the other report in the words of the A. S. I. "was cancelled". Four eye‑witnesses were examined for the prosecution. There was also the evidence of recovery of a rifle, a licensed gun and a spear. All the accused except the present appellant merely denied that they were guilty while the appellant's version in the Committing Magistrate's Court was that he was not in the village at the time of occurrence, but later he learnt from a young boy that Gomi had been injured, and that on going to Gomi he gathered from him that there was a fight between Gomi and Muhammad Ali and that Muhammad Ali injured Gomi with a spear when he (Gomi) killed Muhammad Ali. At the trial, after stating the particulars of the enmity between himself and the P. Ws. the appellant added that he, went to the Police Station at 9 a.m. and told the A. S. I. that Gomi had been killed by Muhammad Ali but he was asked to sit outside and was called in only at peshiwela, when he made the report. No witnesses were examined for the defence.

The Sessions Judge found that the case for the prosecution was substantially true and that the version of the defence could not be believed. As regards the participation of indivi dual accused he accepted the prosecution version against Fazil. Sajwara and Sajjada as there was evidence that the first two fired at and the third thrust his spear into Muhammad Ali. He acquitted two of the other accused as no specific acts were attributed to them. Noora and Muhammad to whom specific acts were attributed were also acquitted because the Sessions Judge considered that their participation was improbable having regard to their youth. Though no specific acts were attributed to the appellant and his co‑accused Mirza, the Sessions Judge convicted them on the ground that the report made by the appellant established their presence at the occurrence and to that extent the evidence of the eye‑witnesses became strengthened against them. The learned Judges of the High Court found that only one of the eye witnesses could be considered to be a member of the opposite faction and that the evidence of the other eye‑witnesses could not be discarded merely because the village was divided into faction and it was possible that they were under the influence of the Lambardar. They therefore took the view that there was no reason to disbelieve those eye‑witnesses, and yet by way of abundant caution they adopted the same criterion as the Sessions Judge namely that the case should be accepted only against those to whom specific acts had been attributed or whose presence at the scene was established apart from the ocular evidence. In this connection it was argued before the High Court that the appellant's report to the police was inadmissible under section 25 of the Evidence Act. The learned Judges repelled this contention relying on the decision of the Privy Council in Pakala Narayana Swanu v. Emperor (A I R 1939 P C 47) and as the statement was made by the appellant and not Mirza, the latter was acquitted.

In the above‑mentioned case the police had on suspicion visited the house of the appellant in the course of investi gation and obtained from him a statement which was excul patory but in which he had admitted that the murdered man had come to his house at the relevant time. This statement was admitted into evidence by the Courts in India ,and it was argued before the Privy Council that that statement was inadmissible under .section 162, Criminal P. C. and section 25, Evidence Act. Their Lordships held that the statement could not be used by the prosecution as section 162 applied also to statements made by persons ultimately accused of the crime. As regards section 25 of the Evidence Act it was held that "a confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence"; that "an admission of a gravely incriminating fact even a conclusively incriminating tact is not of itself a confession" and that "there was no definition of confession in the Evidence Act" and that "in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused suggesting the inference that he committed the crime". In the present case the admission of the appellant cannot be said to be a con fession in any sense of the term, and consequently section 25 of the Evidence Act was rightly held to be inapplicable to it. This provision of law was not pressed before, us. What was strenuously argued before us was that the report of the appellant was a statement made in the course of an investiga tion as .by the time it was made investigation of the crime had been started. This contention implies that the expression in the course of an investigation occurring in section 162 refers only to the duration of investigation and the very fact that a statement is made during this interval brings it under the section, whatever the circumstances in which it was made. So to interpret the words is to put the widest possible construction on a provision which has to be construed in the narrowest possible sense as it is a special rule which excludes what under the general law is evidence available to the prosecution. In the context in which the words occur investigation' must refer to the investigation of the specific allegation of crime already reported and therefore the section can apply only to those statements which are steps in furtherance of the pending investigation. The mere fact that a statement was made during an investigation is not by itself sufficient to bring it under section 162. The question whether a statement was recorded 'in the course of an investi gation' or not is therefore a question of fact to be decided on the circumstances of each case.

In Emperor v. Khawaja Nazir Ahmad ( 71 I A 203 ) their Lordships held that a second complaint made to the police in the investi gation of the first was a first information report under section 154 as it contained allegations of other criminal activities against a person already accused of a crime. That was an appeal from the judgment of the Lahore High Court quashing under section 561‑A, Criminal P. C. the proceedings pending before the police in the investigation of two com plaints against the respondent. In allowing the appeal on the ground that the High Court had no pourer under section 561‑A to interfere with what the police were empowered to do under the Code viz. investigate a case. of cognizable offence, their Lordships had to deal with the contention that the first of the two complaints disclosed only a non‑cognizable offence for investigating which permission of a Magistrate was necessary while the second complaint which disclosed a cogni zable offence was a statement in investigation coming under section 162 and therefore there was no reported cognizable offence into which the police were entitled to enquire. The following observation of their Lordships made in connection with this argument clearly indicates that in their opinion the words 'in the course of an investigation' did not refer only to duration of time. "Their Lordships cannot accede to this argument. They would point out that the respondent in his case treats each document as a separate information report and, indeed, on the argument presented on his behalf, rightly so, since each discloses a separate offence, the second not being a mere amplification of the first, but the disclosure of further alleged criminal activities".

We have not been shown definite evidence that investiga tion of P. W. 9's report had already commenced by the time the appellant made his report. Even if it is assumed it was so the report made by the appellant cannot be said to be a step in the investigation of the specific allegation made by P. W. 9 in the first F. I. R. While according to P. W. 9's report Muhammad Ali was first injured by Gomi and on his retaliating by causing an injury to Gomi was murdered by Gomi's companions the appellant's report alleged that Muhammad Ali murdered Gomi and was subsequently killed suggestion being that the crowd attacked him after he left the scene. Then again according to the report of P. W. 9 the occurrence took place in a kotha and after the murder the body of Muhammad Ali was dragged to and left at the chowk, but the appellant located the occurrence in the chowk itself. The evidence of A. S. I, is to the effect that investigation was made in respect of both these reports and the report of the appellant as stated already was registered separately. It is thus clear that the statement in question was not intended or treated as a step in the furtherance of a pending investigation.

We, therefore, consider that the learned Judges were justified in treating the statement in question as evidence of admission that the appellant was present at the occurrence.

The appeal is dismissed.

A.H. Appeal dismissed.

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