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Petitioner: TAHIR BAIG VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Abdul Waheed Siddiqui, Ch. Ejaz Yousaf, Dr. Allama Fida Muhammad Khan Title: TAHIR BAIG vs THE STATE Case No.:Criminal Appeal No,168-1, 36-I and Criminal Murder Reference No, 3-I of
JUDGMENT
Reported As: 1998 MLD 769 Result: Appeal dismissed Judgment JUDGMENT ABDUL WAHEED SIDDIQUI, J.---Appellant has assailed judgment delivered by the court of Sessions Judge, Jhelum on 28-8-1995 whereby he has been convicted under section 302, P.P.C. and sentenced to death and fine of Rs,1,00,000 and in default of payment of fine to suffer R.I. for 2 years. The amount of fine, if recovered, shall be paid to the legal heirs of the deceased as compensation as envisaged under section 544, Cr.P.C. It shall be recoverable as arrears of land revenue and shall be paid to the legal heirs of the deceased. He is also convicted under section 404, P.P.C. and is sentenced to R.I. for 2 years and a fine of Rs,2,000 and in default of payment of fine to suffer R.I. for 6 months. This sentence under section 404, P.P.C. is kept operative in case death sentence is not confirmed. By the same judgment the appellant is acquitted from the charges under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377, P.P.C. The same judgment has also been impugned through Criminal Revision Petition whereby it has been prayed that amount of fine should be imposed separately and compensation should be awarded separately under section 544-A, Cr.P.C. and the amount of compensation awarded to the heirs of the deceased may be increased in accordance with the gravity of the offence. A criminal murder reference for confirmation of death sentence has also been submitted by the trial Court. We propose to dispose of the Criminal Appeal, Criminal Revision Petition and the Criminal Murder Reference by this consolidated judgment. 2. Stroy of prosecution in brief is that complainant Zahid Hussain Shah (P.W.19) reported at police station Dina District Jhelum on 25-8-1988 at 7-50 p.m. that he is a traffic officer at COD and out- backs everyday for his duties from his home. On the reporting date when he returned from his duty
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around 5-15 p.m, he gave Rs,2 to his son Imran Ali Shah, aged 12/13 years to purchase potatoes from a shop in a Chak nearby. The boy did not turn up for about 1-1/2 hours, so he came out in his search. Then he came to know that in a millet field nearby a dead body of some boy is lying. When he reached there, he found the dead body of his own son lying in a pool of blood and the neck of the dead body was cut with some sharp-edged weapon. The Azarband of the Shalwar of the dead body was also opened. The complainant stated further that he has no enmity with anybody not has he any suspicion about any person. A formal F.I.R., was lodged and after necessary investigation, the appellant was arrested, challaned and charged firstly under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, secondly under section 377, P.P.C, thirdly under section 302 P.P.C. and fourthly under section 404 P.P.C. Appellant did not plead guilty. Prosecution examined 21 witnesses, appellant gave statement under section 342 Cr.P.C. declined to be examined on oath and did not produce any defence. 3. We have heard the counsel for appellant, petitioner and State. The learned counsel for appellant has contended that it is a case of blind murder in which the appellant has been substituted for some other unknown culprit; that the appellant was arrested on 7-9-1988 whereas his judicial confession under section 164, Cr.P.0 was recorded 6 days later on 13-9-1988 and naturally all this period he was tortured to confess as per the dictation of the police; that the Magistrate recording the judicial confession has admitted that he did not record the question put to the accused/appellant and his answers in the proceedings before recording the statement Exh.PD and therefore, judicial confession is not a reliable document reliance being placed on 1983 PCr.LJ 892, 1988 PCr.LJ 116, 1992 SCMR 196, 1993 SCMR 1822, 1995 PCr.LJ 159; that extra-judicial confession is not corroborated strongly by other evidence and even otherwise it is the week type of evidence reliance placed on 1987 PCr.LJ 1817; that there is violation of the mandates created by section 103, Cr.P.0 reliance placed on 1995 MLD 927; that there is conflict between judicial confession and medical evidence and therefore in view of principles laid in 1988 P.Cr.LJ 655. The judicial confession is a piece of evidence which must be discarded; that the acquittal from charge under section 377, P.P.C. evaporates alleged motive for the murder; that there is no witness of the locality and all the independent witnesses are Gakhars who are the Murids of the father of the deceased and have deposed under his influence and they are also residents of 25 to 26 miles away from the locality of occurrence, reliance is placed on 1984 SCMR 930; 1995 PCr.LJ 1816; that there are material contradictions among P.W.18, P.W.20 and P.W.16; that P.W.16 is a person in authority, and therefore, extra-judicial confession before him is not admissible as envisaged in 1973 PCr.LJ 156, 1975 PCr.LJ 1124, 1968 PCr.LJ 347 and then this P.W.16 is not reliable as he is indulging in perjury; that hairs of the appellant in the hands of the deceased are falsified by medical science; that the appellant has suffered double jeopardy as he was once placed in the death cell and then he came out of it and then once again he has been lodged in the death cell once again and this is in violation of the Fundamental Rights as explained in PLD 1972 SC 363 and 1993 SCMR 23; that at any rate this is not a case of capital punishment. The learned counsel for petitioner has contended that the absconcion of the appellant/accused from his normal residence after having come to know that he was suspected for the offence is in the nature of such a res gestae which cannot be brushed aside; that the guilt of the appellant stands proved beyond all reasonable doubts by way of Wajtakar evidence, connecting recoveries from the spot, recoveries of wrist watch etc. on the pointation of the appellant, hairs from the scalp of the appellant found in the hand of the deceased and reported to be human-hairs originating from the head of the appellant, extra-judicial as well as judicial confessions; that extra-judicial evidence is fully supported and corroborated by other evidence; that the medical evidence and green staining on the clothes of the deceased and grass found on the back and healthy condition of the deceased suggests struggle on. the part of the deceased to save himself and these circumstances coupled with open string of Shalwar is
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indicative that at least an attempt of sodomy was made; that there does not exist double jeopardy for the appellant as the records prove that the appellant has never been brought out from the death cell as he was never acquitted and consequently question of expectancy of life does not arise reliance being placed in this context on 1985 SCMR 2070, 1987 SCMR 1059, PLD 1971 SC 541. On the admissibility of the confessional statement reliance has been placed on, inter alia, 1980 SCMR 654, 1977 SCMR 547, PLD 1950 Lah. 212, 1989 SCMR 446, PLD 1952 FC I and 1985 SCMR 1455. The learned counsel for the State has adopted the arguments of the counsel for petitioner to the extent of the proof of the guilt of the appellant beyond all reasonable doubts and has supported the impugned judgment. 4. So far as the contention of appellant's counsel that there is no ocular evidence and it is a blind murder is concerned we agree with him to that extent. But it does not mean that when strong evidence is produced by the prosecution in a manner that each and every piece of evidence is corroborative inter se to the extent that all reasonable doubts are removed, yet the accused is to be acquitted for none had seen him committing the offence. The appellant's counsel has contended that judicial confession was extracted after torturing the appellant for 6 days is misconceived and his reliance on the citations quoted by him is of no avail to the appellant for being distinguishable in every respect. First of all Atta Muhammad (P.W.5) Magistrate Class I has replied to certain suggestions that although he had not recorded the questions put to the appellant and his answers in the proceedings before recording the confessional statement Exh.PD, but he mentioned this fact in the certificate appended under the statement. The relevant portion of the said certificate (Exh.PD/1) reads: ' So far as reliance on the principle laid down by a D.B. of the High Court of Sindh at Karachi, cited as 1983 PCr.LJ 892 is concerned, in which judicial confession recorded three days after the arrest of accused was ruled out of consideration, the circumstances of the case were such that not only that the judicial confession was not corroborated at all but no other evidence was available on the record to prove the guilt of the accused/appellants. So much so, that at placentium the honourable Judges noted that even the learned counsel for the State Mr. Rashid Akhtar Qureshi had not supported the convictions and sentences. In the present case the learned counsel for the State Mr. Saliheen Mughal has vehemently argued in favour of the convictions and sentences as awarded by the learned trial Court. So far as reliance on the principle laid down by the Shariat Appellate Bench of the Supreme Court of Pakistan at placentium B of 1993 SCMR 1822 is concerned, again it is in the distinct circumstances of the case. The principle enunciated reads: "the only evidence directly connecting the respondent with the offence of Zina, in this case, is his confessional statement which he allegedly recorded before the Magistrate on 15-2-1987, after his arrest by the police. The respondent, however, retracted from his confession at the trial and denied even having made any such confessional statement. It is true that the conviction of an accused could be based on his retracted confession if the Court finds that it was made voluntarily and was true. However, the superior Courts have consistently held, and it has now become almost a well- settled rule of prudence in criminal cases, that the Courts before convicting an accused for a criminal offence on the basis of his retracted confession must look for its corroboration in material particulars from other independent pieces of evidence in the case." As shall be shown later in this judgment, it is not only the judicial confession, although retracted, which is connecting the appellant with the offence, but there are many other strong and confidence inspiring pieces of evidence which are proving the guilt of the appellant beyond any reasonable doubts. So far as reliance on placentium I of 1992 SCMR 196 of the judgment delivered by Mr. Justice Abdul Karim Khan Kundi is concerned, the tests kept for admissibility of a judicial confession have been followed by the recording Magistrate although the sequence has been altered. But this alteration of
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sequence is of no avail to the appellant as there exist other strong evidence against him to an extent that even if the judicial confession is discarded, yet he cannot escape the fate he has chosen for himself by virtue of his evil deed. The tests as laid in the abovementioned citation are quoted verbatim: The test whether the confession was admissible in evidence as having been recorded according to law and is being true and voluntary was considered in a case reported PLD 1958 (W.P.) Lah. 559 as follows:--- The language of subsection (3), does not admit of any ambiguity. It is mandatory provision of law, which requires that the warning should be given before the recording of the confession. It obviously means that the warning is to be given before commencing recording of the confession. It will be a meaningless warning, if it is given half an hour, or an hour or a few hours earlier. The very object will be frustrated if the warning is not given at the commencement of the recording of the confession. It must be a real endeavour on the part of the Magistrate to find out if the confession is being made voluntarily. Besides putting the set questions the Magistrate is required to make a real endeavour to find out the voluntary nature of the confession, it is a solemn duty which should be performed with great care and caution, and not mechanically. Magistrate will be well advised to adopt the following procedure for recording a confession:--- As soon as a person is produced before a Magistrate for getting his confession recorded, his handcuffs should be removed and all the police officers shall be turned out of the Court-room, and he should be informed that he was before a Magistrate and that whether he made any statement or not he will not be handed back to the police, but will be sent to the judicial lock-up. He should then be given sufficient time to ponder over the matter. Then he should be warned that he was not bound to make any statement and if he did so, it may be used as evidence against him and then, the following questions should be put to him:-- (1)For how long have you been with the police? (2)Has any pressure been brought to bear upon you to make confession? (3)Have you been threatened to make confession? (4)Has any inducement been given to you? (5)Has you been told that you will be made an approver? (6)Why are you making this confession? Then, if the Magistrate is satisfied that the prisoner is making the confession voluntarily, he should put the set questions as given in the printed form and record the confession. The job is, no doubt, thankless and somewhat tedious, but it must be remembered that on it depends the fate of the prisoner. The record of the confession must be so prepared that the Court dealing with such a confession should have no difficulty in finding for itself whether the confession was made voluntarily or not." If the above warning and questions are not put to the accused then, the so-called confession is inadmissable in evidence and is not voluntary in nature. In the present case, these questions were not put to appellant Saifullah before recording of the confession and no warning was given to him, therefore, the confession is not admissible in evidence. In a case reported in PLD 1964 SC 813 it has been laid down as follows:--- "Unless a retracted confession is corroborated in material particulars, it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true." It appears from the deposition of Atta Muhammad (P.W.5) and Exh.PD/1 that these six questions were put to the appellant expressly as well as impliedly, and therefore, we do not find it in the
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fitness of things to reject this piece of evidence. So far as reliance on the principles enunciated in placentium A of 1995 PCr.LJ 159 by a Single Bench of this Court is concerned, the same are reproduced as under: "I have minutely perused the entire record of the case. Section 164, Cr.P.C. enjoins upon a Magistrate, competent to record a confession of an accused, to observe certain legal formalities before recording the confession. In accordance with the provisions of section 164, Cr.P.C. and numerous judgments of the superior Courts the said formalities can be the following:--- (a)when any accused disclose his intention to record a confessional statement, the first act of the Magistrate is to remove the handcuffs of the accused if he is in handcuffs; (b)the police officials present inside the Court-room are to be immediately turnout from the Court-room; (c)the Magistrate has to explain to the accused that he is appearing before a Magistrate; (d)that the accused is not bound to make any confession and if he makes any confession it may be used against him and he may be convicted on its strength. (e)the Magistrate has to ask the accused if police had used any coercive method to obtain a confession from him; (f)the Magistrate is required to give sufficient time to such accused to ponder over the matter; (g)thereafter the Magistrate has to again ask the accused whether he was still willing to make a confession and on his reply in the affirmative he may record the confession; (h)thereafter the Magistrate has to remand the accused to judicial custody if he is in handcuffs; (i)even after recording the confessional statement of the accused the Magistrate is required to record some prosecution evidence in corroboration of the confession; (j)it is also mandatory that the Court should record a statement of the accused under section 342, Cr.P.C. wherein he may be asked the question whether he had made confession voluntarily or whether he had made the same under coercion or duress; (k)when the accused had refused to plead guilty at the time of framing the charge and he wants to make a confession thereafter, conviction should not be based on the sole confessional statement of the accused but some corroborative prosecution evidence must be recorded." In the present case, as described above, the mandates have been complied with by the Magistrate recording the confessional statement and that the conviction of the appellant is not based on his sole confessional statement. Reliance on a Single Bench judgment of Bahawalpur jurisdiction of the High Court of Lahore cited as 1988 PCr.LJ 116 makes a reference to the six set questions as given in printed form in Chapter 13, Vol. III, High Court Rules and Orders has already been dealt with in the abovementioned citations and principles. It is a set rule of prudence and justice that where a procedure laid down by the rules of the High Court's has not been followed in all its details, the same is cureable in case it meets the requirements of the substantial justice. On the other hand we find, in the circumstances of this case, principles laid by the apex Court cited as 1989 SCMR 446 by the learned counsel by the petitioner are applicable on the present case. Heading (a) of the said citation reads:-- "S. 302---Case of no evidence---Retracted confession, whether sufficient in law to maintain conviction---Appeal against conviction---No eye-witness of occurrence---Prosecution based on retracted confession of accused---Plea that retracted confession was not sufficient in law to maintain conviction, not entertained---No legal bar exists for recording a conviction on a confession which is subsequently retracted if it is voluntary and true--No infirmity having been found in confessional statement of accused to render it unacceptable and accused having told truth, he was rightly found guilty." Petitioner's reliance on PLD 1950 Lah. 212 is also pertinent to the present case. The principles laid by a D.B. are quoted verbatim:--
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"A confession under section 164 does not require to be recorded in the form of questions and answers. A confession recorded in the form of a narrative and not in the form of questions and answers is properly recorded and is admissible in evidence. It would in most cases be impossible to record the confession in the form of questions and answers because the Magistrate to whom a person charged with an offence is taken so that his confession may be recorded does not generally know what the case is. Per Munir C.J.,---I am of the view that portion of section 364, which requires the examination of an accused person to be taken down in the form of questions and answers, is not applicable to confessions made under section 164, and cannot accept as correct the contention that even where the confession of an accused person is recorded during the course of police investigation, it cannot be taken down in a narrative form and must be recorded in the form of questions and answers. In fact, such questions have generally to be avoided so as not to provide ground for the objection that the confessions was the result of cross-examination by the Magistrate and, therefore, involuntary." The counsel for appellant also contended that the appellant was not confronted with his confessional statement, piece by peice, during his statement under section 342, Cr.P.C. and in this context he has relied upon the principle enunciated per Abdul Rashid, C.J. cited as PLD 1952 FC 1. The said principle reads:-- "It would be most unfair to the accused, and it would amount to a violation of a fundamental principle of natural justice if he is convicted solely on the basis of an admission alleged to have been made by him without calling his attention to the admission and asking for his explanation when he was examined in Court." We are afraid that this contention is misconceived as Question No,13 in statement under section 342, Cr.P.C. is clearly calling the attention of the appellant to his confessional statement Exh.PD. On the other hand, the counsel for petitioner have relied on the same judgment, but per Muhammad Munir, J. The principle laid is:-- "It is true that the appellant when examined under section 342 of the Code of Criminal Procedure was not specifically questioned about the confession. But for that reason alone the confession does not cease to be admissible. It may be that where an accused person has not at all been questioned on the salient aspects of the prosecution case, the conviction becomes indefensible but the omission to put a particular incriminating circumstance to him stands on a different footing. In such a case the appellate Court will have to consider whether the omission occasioned any prejudice to the accused." Consequently, we hold that the confessional statement is a substantial piece of evidence which cannot be brushed aside. 5. The contention that extra-judicial confession of the appellant before Raja Sultan Mehmood (P.W.16) cannot be relied upon for being uncorroborated by other evidence is again misconceived. It has been assailed on two grounds: (1) That this witness has admitted that he was a member of Zila Counil from Tehsil Sohawa during the days of this occurrence hence he was a man of authority and extra-judicial confession made before him could not be considered. In this respect reliance is placed on Single Bench judgments cited as 1975 P.Cr.LJ 1124 (Lahore) and 1968 P.Cr.LJ 347 (Lahore). So far as first citation is concerned, the relevant principle at placentium reads:-- "The evidence of the ocular witnesses (as deposed by Ghaus Bakhsh during the trial and as transferred under section 288, Cr.P.C. in the case of the other two) is supported by the recovery of the crime weapon, i,e,, Kassi (Exh.P.5) from a place which was within the special knowledge, of the appellant. I am satisfied that the appellant had inflicted the fatal blow. I am, however, inclined to discard from consideration the extra-judicial confession because the same had been made before
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a Lambardar who, in this Province, has been held to be a person in authority vide Monir's Law of Evidence, Fourth Edn, p.160." In the second cited judgment, placentium A and B are relevant which read:-- "From the above, it would be seen that a Chairman of the area has to perform multifarious duties of executive and judicial nature. Therefore, he, is a person in authority within the meaning of section 24 of the Evidence Act. Th next question is whether there was any inducement offered by Inayat Ullah P.W. It is in his evidence that the appellants took him aside and tom rum that a case had been registered against them and that he told them that he would help them in case they make a true statement and it was after his promise that the appellants made extra-judicial confessions. The finding of the learned Additional Sessions Judge that Inayat Ullah P.W. had trimmed his evidence in favour of the appellants would not help the prosecution, as the evidence of a witness is to he read as a whole. We would,' therefore, hold that there was an inducement offered to the appellants to make these confessions and that it did proceed from a person in authority, and was sufficient in our opinion, to give the accused grounds which would appear to them reasonable for supposing that by making it they would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against them. Therefore, these extra-judicial confessions must be excluded." Although both these judgments are of a Single Bench of the Lahore High Court and are not binding for us, yet we are inclined to discuss the distinguishing features of the present case. In the first cited case, extra-judicial confession was made before a Lambardar who was held to be a person in authority. In the present case, Raja Sultan Mehmood (P.W.16)…
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