Law: Criminal Procedure Code (V of 1898)

Section: 164,342,544A

Law: Pakistan Penal Code, 1860

Section: 302(b)

Criminal Procedure Code (V of 1898)--- ----S.164---Penal Code (XLV of 1860), S.302(b)---Appreciation of .evidence---Confession of accused before the Magistrate and the Trial Court had been made an integral and substantial part of the prosecution case---Confessional statement made by accused before Magistrate, however, was contradictory to the statement made by him before the Trial Court---Accused, in the statement made before .the Magistrate, had. admitted that the co-accused had committed sodomy with the deceased, but in his statement recorded under Section 342, Cr.P.C. before the Trial Court he had stated that "we also committed sodomy upon the deceased" while in the same statement recorded under S. 342 Cr.P.C., accused had stated that "no act of sodomy was committed by . me with deceased"---Failure on the part of the Trial Court to frame the question seeking explanation of accused about material contradiction pertaining to sodomy, had destroyed entire prosecution story; and the confession in the given circumstances ought to have been discarded by the Trial Court---Where a confession or admission was the sole basis of the convicting accused, failure to question him about its voluntariness, would be presumed to have prejudiced the case of accused---Trial Court, in the face of that material, was duty bound to disbelieve the confessional statement and statement under S.342 Cr.P.C. by which accused had admitted his guilt for two reasons; firstly that as per medical evidence no sodomy was committed upon deceased, and secondly accused under S.342 Cr.P.C. had exonerated the co-accused---Legality of the confessional statement became doubtful when accused was neither given warning or notice before such statement was recorded by the Magistrate---Story narrated by accused in the confessional statement, did not correspond to the medical evidence---Further material contradiction existed in the deposition of prosecution witnesses regarding post-mortem report---Such material contradictions belied prosecution story that -the dead body was recovered in presence of the Mashirs---Material brought on record by the prosecution, was neither confidence inspiring nor sufficient to…

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