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P L D 1952 Lahore 345
P L D 1952 Lahore 345
Before Muhammad Munir, C. J. and Kayani, J
NAWAB DIN‑Convict‑Appellant,
versus
CROWN‑Respondent
Criminal Appeal No. 34 of 1952, decided on 20th May, 1952 from the order of Muhammad Rafiq, Additional Sessions Judge, Lahore, dated the 27th December, 1951.
(a) Expert evidence‑----
----Identity of handwriting‑Declared unsatisfactory in. circumstances of case.
(b) Confession‑---
---Judicial or extra‑judicial, retracted or un-retracted‑Provided voluntary and true, conviction may be based on sole basis of such confession‑As a matter of law no corroboration of confession needed‑When relevancy established evidentiary value of confession matter of prudence rather than of law‑Necessity of caution.
(Per Muhammad Munir, C. J.)‑It is an unquestionable proposition of law that if a ‑Court believes a confession, judicial or extra‑judicial, retracted or not retracted, to be voluntary and true, it can convict the accused on its sole basis. At the same time Courts have always treated extra‑judicial confessions as suspicious evidence and have emphasised the necessity of great care and caution in acting upon them in the absence of corroborative evidence. But during the‑last 100 years or so that the statutes of evidence have been in force in this sub‑continent it has never been ruled that a conviction based on an extra‑judicial confession is an illegality or that the rule requiring corroboration of such a confession has the force of law.
When the relevancy of a confession has been established, the use to be made of it is not a matter of law but of prudence.
Where a confession is not vitiated by any of the circum stances mentioned in sections 24 to 26 and is thus a relevant fact, a conviction may be based on it provided the Court that is called upon to consider the confession believes it to be true.
So far as English Law and the provisions of the Indian Evidence Act are concerned, there is no legal impediment to convicting a man on his own confession, the making of which he denies at the trial but is proved by satisfactory evidence. The use to be made of a properly proved confession even if denied or not adhered to at the trial is not a matter of law but prudence.
The decision in Abdul Latif's case P L D 1952 F. C. 113) should not be taken as laying down the rule that where there is no evidence in corroboration of a confession, the Court is not competent to convict.
The language used by the majority in Abdul Latif's case has never been used either here or in England with reference to the extra‑judicial confession of a prisoner. On the con trary it has been expressly recognized in a large number of decisions that a conviction based on an uncorroborated con fession is perfectly legal. I do not think the learned judges of the Federal Court intended to take a different view and to lay down the rule that a conviction which merely proceeds on the uncorroborated confession of a prisoner is illegal or that no Court should convict anyone on a confession unless it is corroborated in material particulars.
Abdul Latif v. Crown P L D 1952 F. C: 113, explained.
Representative case law ref.
(Per Kayani, J.)‑When an extra‑judicial confession is sought to be admitted in evidence, the first question is whether it was actually made by the accused person, and the second question is whether it was made voluntarily and truly. Both these are questions of fact, and being once satisfied as to these two matters, the Court may not find it necessary to apply the rule of caution relating to corroboration.
S. Nasim Hassan Shah, for Appellant.
S. A. Mahmud, Assistant to the Advocate‑General, for Respondent.
JUDGMENT
MUHAMMAD MUNIR, C J. This is an appeal from, and a reference for confirmation of, a death sentence. The appellant is Nawab Din who stated himself to be 80 but appeared to the committing Magistrate to be 65 and to the trial judge 60 years old. He has been found guilty by the Additional Sessions Judge, Lahore, of having murdered Abdul Rahim.
Abdur Rahim deceased was the son of the brother of the appellant's wife. The alleged murderer and the victim of his crime both originally belonged to Bhowan Wadala, a village in the district of Amritsar. On partition they migrated to Lahore where they were residing together in a house and working as cobblers in Katra Devidas in Mohalla Misri Shah. On the night of 5th‑6th June 1951, which was a moonless night, they were sleeping on the roof of their house on two different charpoys. The deceased's wife Mst, Aimna Bibi was sleeping on another charphoy near her husband. On the same roof was also sleeping a guest while on the adjoining roofs slept some other persons including Abdullah, a brother of the deceased and some members of Abdullah's family. At 1‑30 in the morning the deceased awoke with a shriek saying that he had been stabbed. Mst. Aimna Bibi also woke up and found that her husband had been wounded in the abdomen with a knife. The appellant who was awake or had woken up at that time said that some one had knocked against his charpoy and jumped from the roof into the street.
Several months before the incident the deceased had beaten a gambler boy and some days afterwards had found a threatening letter affixed to the chain of his door. This letter had been preserved by Mst. Amina Bibi. As Abdul Rahim's assailant had not been seen by any one, the appellant said that Abdul Rahim might have been stabbed by the person who had written that letter. The deceased was taken to Police Station Misri Shah where a report of the incident was lodged by the appellant himself at 2‑15 a.m. In that report the appellant mentioned the incident of the slaping of the gambler boy by Abdul Rahim and stated that Abdul Rahim had otherwise no enmity with anyone. A blood‑stained knife which was found lying under Abdul Rahim's charpoy and the aforesaid letter which the appellant took from Mst. Amina Bibi were produced by the appellant at the time of the making of the first informa tion report. The letter ran as under:‑
"Brother Abdul Rahim Mochi. This is to inform you that you beat our boy. What harm had he done to you? This boy is ill since the time you beat him you have not expressed any sympathy. We tell you that you beat the boy at the instance of your wife. You will also lie on the charpoy one day. Brother, this is Lahore."
On the morning following the incident another letter was found lying on the roof on which Abdul Rahim had been stabbed. This was in the following terms:‑
"I am the same man whose son was beaten by Abdul Rahim. The boy died of the beating two months ago. As a result of the complaint made by the deceased's wife I have become grief‑stricken and fakir. But this is like the echo from a well. As you sow, so shall you reap. Mian Abdullah and Bare Mian, only he feels whose son ' goes to the grave. That woman will get many other men .
Abdul Rahim was admitted into the hospital but could not recover from the injury and died the same day.
It is the prosecution case that this more than sixty years old appellant had become enamoured of the deceased's wife and used to indulge in pleasantries with her. About a month before the incident Abdul Rahim had gone to Lyallpur where 'he had complained of the appellant's misconduct to his brother Jamal Din and only three days before the incident the deceased had seen the appellant embracing Mst. Amina Bibi. The news of the attack on Abdul Rahim was communicated to Jamal Din by telegram but as he was ill, he could not immediately leave Lyallpur and came to Lahore a week afterwards. After receiving the details of the incident he mentioned to ‑Abdullah what the deceased had told him .at Lyallpur and suspected the appellant to be the murderer of Abdul Rahim: This suspicion was ‑conveyed to one Chaudhri Siraj Din who sent for the appellant and it is alleged that the appellant made a confession to the Chaudhri. Thus the evidence against the appellant is:‑
(1) the extra judicial confession made by him to Chaudhi Siraj Din ;
(2) the evidence of motive and opportunity ;
(3) that the knife which was found lying under the charpoy and which was subsequently discovered to be stained with human blood was the appellant's property ; and
(4) that the two cryptic letters mentioned above were written by the appellant.
The knife is identified to be that of the appellant by Mst. Amina Bibi and Abdullah but they both admit that though they had seen this knife when it was produced at the police station at the time the first information report was‑made, they did not suspect it to be the appellant's knife which they had previously seen on several occasions. Their evidence regarding identifica tion of the knife is, therefore, valueless. The writing of `the two letters is identified by Abdullab and Muhammad ‑Sharif but neither of them identified it before the committing Magistrate. If Abdullah was acquainted with the appellant's handwriting, he should have identified both the letters when he saw them with the police. No reliance can, therefore, be placed on the evidence of these two witnesses regarding the identity of the writer of these letters. The expert evidence about these letters being in the handwriting of the appellant is equally unsatis factory. In the course of investigation a specimen was taken of the handwriting of the appellant and compared by the expert with the letters. The expert has given four reasons for his view, that the letters were written by the person who also wrote the specimen writing. We have checked these reasons by reference to the four documents and their enlarged photo graph and consider them to be too meagre and inconclusive to form the conclusion that they were all written by the appellant. This piece of circumstantial evidence also must, therefore, be ignored.
We are then left with the evidence of the confession and that of motive and opportunity. But no man can be convicted merely because he had a motive and the opportunity to com mit the offence charged inasmuch as both these circumstances may be common to several other persons and not be confined to the accused alone. The main factor, therefore, which must determine the fate of this case is the confession which is alleged to have been made by the appellant to Chowdhri Siraj Din and repeated before Jamal Din and Abdullah on 14th June.
As to this part of the case the main contention of Mr. Nasim Hasan Shah, who has argued this case with great zeal and comendable ability, is that we need not go into the evidence in proof of the confession because even if the confes sion be held to have been made by the appellant, the conviction, in the absence of corroboration of the confession in material particulars form independent sources, would still be unsus tainable in law. This argument is sought to be supported by a recent judgment of the Federal Court in Criminal Appeal No. 8 of 1951, Abdul Latif v. Crown (P L D 1952 F C 113), delivered on 2nd April 1952. In that case the only evidence against the appellant was an extra‑judicial confession made by him to a Lambardar. In the absence of corroboration all the three judges agreed in allowing the appeal. Dealing with the necessity of corroborative evidence in such cases, Akram J., who delivered a separate judgment remarked:‑
"There should have been some corroborative evidence to the effect that the alleged confession was not only made but was also voluntary and true. No doubt an extra-judicial confession can be made the sole basis of a conviction but it cannot be denied that in doing so utmost care and caution should be used,:"
Cornelius J., on the other hand, put the need for corroboration on a much higher plane, and observed:‑
"In these circumstances, I am unable to accept the argu ment, advanced for the Crown, that the treatment of the confession by the High Court as admissible evidence, sufficient in itself to sustain the conviction, is final and binding on this Court. The question is not as to the evidentiary value of the confession but as to whether in the proved circumstances and conformably to the principles consistently enunciated by the Courts over a long period of years it can be properly received in evidence and acted upon without the need of corroboration from independent sources, and in material particulars, as against the alleged maker. I am clearly of the view that the circumstances of this case required application of this rule of prudence which through long and consistent application has been crystallised into a rule of practice having the force of law".
Abdul Rashid, C. J., after reading the judgments of both the" Judges appended a short note saying:‑
"I am so completely in agreement with the reasoning embodied in the judgment of my brother Cornelius, J. that I consider it unnecessary to add any remarks of my own."
Since the learned Chief Justice agreed only with the reasoning of Cornelius, J. and said nothing about the view taken by Akram, J., Mr. Nasim Hasan Shah has contended that the effect of the Federal Court judgment is the enunciation of a rule, which has the force of law, that where the only evidence against a person is an extra‑judicial confession, conviction becomes an impossibility in law, and that a Court can receive in evidence and act upon such confession only if independent evidence in corroboration of it in material particulars is forthcoming. Before it is recognized that this is the effect of the Federal Court judgment, it is necessary to approach the question as if the matter were res integra and then consider whether the learned Chief Justice and Cornelius, J. intended to lay down the rule which Mr. Nasim Hasan Shah contends they did.
In a criminal case, the Prosecutor must prove and the Court must find all those facts which constitute the ingre dients of the offence charged. These facts, which may be called facts in issue, may either be proved by direct evidence, namely, by evidence that directly relates to them or by proof of relevant facts from which the existence of those facts may be inferred. A fact is said to be proved when after consi dering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man, under the circumstances of the particular case, ought to act upon the supposition that it exists. Thus, whether the fact to which the evidence relates be a fact in issue or a relevant fact, the Court can treat it as proved if on the data before it the Court believes it to exist or applying the standard of a prudent man considers its existence so probable that under the circumstances of the particular case it ought to act upon the assumption that it exists.
Relevant facts are defined in sections 6 to 55 of the Evi dence Act. Section 17 defines an admission as a statement, oral or documentary, which suggests an inference as to any fact in issue or relevant fact and which is made by any of the persons and under the circumstances mentioned in sections 18 to 20. Section 21 then declares that admissions are relevant and may be proved as against the person who makes them. Sections 24 to 30 are concerned with confessions and define the circumstances in which they may or may not be proved against an accused person. The word "confession" is not defined anywhere in the Evidence Act but it is clear from the arrangement of this set of sections of the Act that confessions were included under the generic term "admissions" which figures as the heading of these sections. None of these sections defines the weight that may be attached to an admission or a confession by the Court before which it is proved. All that the Evidence Act states on the subject is that admissions are relevant but are not conclusive proof of the matters admitted, unless they operate as estoppels. It has, however, been repeatedly held, and for good reasons, that admissions are to be presumed to be true unless they ate proved to be wrong. In criminal cases, however, this rule is not so freely applied as in civil cases, the reason being that in view of the consequences to society of a wrong conviction and on grounds of public policy the prudent man of section 3 requires a higher degree of proof in the former class of cases.
A confession is not at all relevant against an accused per son if it is made in the circumstances mentioned in sections 24 to 26. But if none of these sections being applicable a confes sion becomes relevant, the use to be made of it would depend upon the circumstances of each case and no absolute rule has ever been or can be laid down governing its evidentiary value in the case in which it is proved. A confession may be a judicial confession or an extra‑judicial confession. The former is made before a Magistrate or in Court and has to be recorded by the Magistrate before whom it is made, if the Magistrate be competent to record it, in accordance with certain formalities prescribed by sections 164 and 364 of the Code of Criminal Procedure, the former section expressly providing that the recording Magistrate is to warn the confessing prisoner that he is under no obligation to make a confession and that if he does make one, it may be used as evidence against him. An extra ‑judicial confession is. one which is not made before a Magistrate or in Court but is made to some other person. It may be oral or it may be reduced to writing either by the person to whom it is made or by the person making it. The Evidence Act does not draw any distinction between a judicial and an extra‑judicial confession so far as their evidentiary value is concerned. The only rule that is deducible from the Act is that a confession is merely a relevant fact and one of the matters to be considered by the Court under section 3 in coming to a finding whether the facts in issue which are the ingredients of the offence charged are or are not proved by it. It follows, therefore, that if a confession contains an admission of all the facts in issue, which are the ingredients of the offence charged, and there is no other evidence in the case, there is nothing in law to prevent a Court from holding the offence charged to be proved provided that the confession produces the state of belief which is con templated by section 3 in defining tire word "proved" Accord ingly it has consistently been held by almost all the High Courts to be the rule that where a confession is not vitiated by any of the circumstances mentioned in sections 24 to 26 and is thus a relevant fact, a conviction may be based on it provided the Court that is called upon to consider the confession believes it to be true. (For representative cases from each Court see (Allahabad) Manohar Singh v. E., A I R 1946 All. 15 ; Khuban v. E., A I R 1930 All. 29 ; E. v. Kehri I L R 29 All. 434 ; Q. E. v. Maiku Lal I L R 20 All. 133 ; (Bombay) Bhimappa v. E., A I R 1945 Bom. 484 ; Housabai Bala Shinde v. E., I L R 56 Bom. 542 ; Q. E. v. Gangia I L R 23 Bom. 316 ; Q. E. v. Gharya I L R 19 Bom. 728 ; (Calcutta) E. v. Kutub Bux I L R 57 Cal. 428 ; E. v. Balai Ghosh A I R 1930 Cal 141; (Lahore) Partap Singh v. E., I L R 6 Lah. 415 ; Sharif v. E. A I R 1944 Lah. 472 ; Nanhun v. E., A I R 1934 Lah. 715 ; Martin v. E., A I R 1934 Lah. 89 ; Rahman v. E., A I R 1930 Lah. 88 ; Majhe v. E., A I R 1927 Lah. 682 ; (Madras) In re: Rajgopal A I R 1944 Mad. 117; In re. Syama Maha Patro I L R 55 Mad. 903 ; Q. E. v. Raman I L R 21 Mad. 83; Kesava Pillai v. E., A I R 1929 Mad. 837 ; (Patna) Dikson Mali v. E., A I R 1942 Pat 90 ; Suker Dasudh v. E., A I R 1941 Pat. 303 ; Bhagwan Das Bhagat v. E,, A I R 1930 Pat. 289 ; Bihari Adraki v. E., A I R 1922 Pat. 492 ; (Oudh) Ram Singh v. E., A I R 1943 Oudh 269 ; Mahipat Singh v. E., A I R 1927 Oudh 597 ; E. v. Rajkali, I I, R 1 Luck. 577 ; Nankey v. E ; A I R 1931 Oudh 412 ; (Rangoon) Nga Po Kauk v. E., I L R 4 Rang. 45 ; (Sind) Sanwaldas Kundandas v. E., A I R 1929 Sind 253. When the relevancy of a confession has, been established, the use to be made of it is not a matter of law but of prudence Raggha v. E., A I R 1925 All. 627 ; Mahmud v. E., 81 I C 62 ; Bhaddu v. E., 46 I C 1005 ; E. v. Lalit Mohan Chuckerbutty I L R 38 Cal. 559; Q. E. v. Gharya I L R 19 Born. 728 ; E. v. Bhagwandas Bisesar A I R 1941 Born. 50 and depends on the circumstances of each case Nanhey v. E., A I R 1931 Oudh 412 ; Sheikh Shafi v. E., A I R 1930 Nag. 259 ; Mohar Singh v. E., 96 I C 647 ; Partap Singh v. E., I L R 6 Lah. 415 ; Moti Ram v. E., 75 I C 152 ; Q. E. v. Maiku Lal I L R 20 All. 133. Thus it is an unquestionable proposition of law that if a' Court believes a confession, judicial or extra‑judicial, retracted or not retracted, to be voluntary and true, it can convict the accused on its sole basis. At the same time for reasons pre sently to be explained Courts have always treated extra‑judicial confessions as suspicious evidence and have emphasized the necessity of great care and caution in acting upon them in the absence of corroborative evidence. But during the last 100 years or so that the statutes of evidence have been in force in this sub‑continent it has never been ruled that a conviction based on an extra‑judicial confession is an illegality or that the rule requiring corroboration of such a confession has the force of law.
Varying and apparently conflicting opinions on the value of confessions have been expressed in England as well as in the United States but the matter has never been treated 'as one of law. Thus, Blackstone (Commentaries, IV 357) condemns con fessions as the weakest and most suspicious of testimonies and in this he has the support of the great judge Sir Michael Foster. (Foster, High Treason, C. III section 8). At the same time judges and writers of great authority have in equally positive and unqualified language extolled confessions as the highest kind of evidence. Thus Gross, J., in Lambe's Case, 2 Leach, 3rd edition 629, considers confessions to be the highest and most satisfactory proof of guilt and Sir William Scott in 2 Hagg. Cons. 315 put this species of evidence as "highest in the scale of evi dence". To a similar effect is the opinion of Starkie who thinks confessions to be "the surest proof of guilt" (Evidence 1, 52) and of Swift (Evidence, 133) who considers them as "the most con clusive evidence." Of course, these words of condemnation or approval have been used from time to tune with reference to the facts of the case which provoked such remarks; but by constant use and repetition they have acquired a generality which has often been misunderstood, The true reason for this appa rent conflict of opinion is that when Judges condemn or disap prove confessions, they generally refer to the evidence by which they are sought to be proved. But once the making of a confes sion is proved beyond question and all hypotheses of improper inducement, threat and promise negatived, judges have generally considered it to be the most effectual proof known to the law. Therefore, Courts which are required to deal with a confession must always bear in mind the position that so far as the proof of the making of a confession is concerned, they must look at the evidence with extreme suspicion and exercise great care and caution in accepting it because such evidence often comes from ,‑interested sources. As Wigmore says: "Paid informers, treache rous associates, angry victims and over‑zealous officers of the law ‑these are the persons through whom an alleged confession is often presented. Taylor refers to the same subject when he says that oral confessions of guilt ought to be received with great caution because not only does considerable danger of mistake arise from the misapprehension or malice of witnesses, the misuse of words, the failure of the party to express his own meaning and the infirmity of memory but the zeal which generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition which is often displayed by persons engaged in pursuit of evidence to magnify slight grounds of suspicion into sufficient proof, together with the character of the witnesses who are sometimes necessarily called in cases of secret and atrocious crime, tend to impair this kind of evidence. (Taylor, section 862). But where the making of the confessions is proved as a fact beyond all doubt and it is clear that it was not made under any improper inducement or fear and was the voluntary outpouring of a penitent prisoner, it is considered to carry a pursuasion which no other species of evidence does because it is opposed to a fundamental instinct of human nature to make a false admission of crime and thus to risk life, liberty and property. Wigmore, in his great work on Evidence, touches the kernal of the subject when he says : "It is precisely because the confession, if a fact, is so weighty and produces such a close approach to complete pursuasion, that we are inclined to hesitate and…
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