P L D 1952 Federal Court 113 (PLP)

ABDUL RASHID, C. J.‑I have had the advantage of read ing the judgments which my learned brothers Akram and Cornelius JJ., propose to deliver. 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. I would allow the appeal and acquit the appellant AKRAM, J.‑The appellant, Abdul Latif, was convicted and sentenced to transportation for life under section 304, Part 1, Pakistan Penal Code, for the murder of his step‑mother, Mst, Harjan and her paramour Dari, on the night of the 23rd June, 1949, by the Additional Sessions Judge, Multan. He appealed to the High Court of Judicature at Lahore, but the conviction was upheld, though the sentence was reduced to rigorous imprisonment for five years. Against this judgment he has preferred the present appeal by our special leave. The conviction of the appellant is based solely on the extra‑judicial confession said to have been made by him before P. W. 5, Ghulam Qadar Lambardar, and there is no other evidence in the case which connects the appellant with the crime. As to the exact status of P. W. 5, the Lambardar and the functions which he is generally expected to perform there is nothing definite on the record, 'nut the evidence dis closes that P. W. 5 received the information of the crime from the appellant, took him into custody, went to the place of occurrence, found out the names of the witnesses, and sent a man named Karam Ilahi, P. W. 2, with a Choukidar to the police station to lodge the First Information Report ; these however are matters which are relevant only for the purpose of determining whether the confession was caused by any threat or inducement by a person in authority within the meaning of section 24 of the Evidence Act, so as to make the confession inadmissible in evidence, but quite apart from this considera tion, it seems to me, in the circumstances of the case, that the failure under section 342 of the Cr. P. C., to draw the attention of the appellant to his confession in order to give him a chance to explain his position has seriously prejudiced the: defence ; some question to the effect, whether he had made the confession or not, ought to have been put to him by the Sessions judge ; it was necessary to do so, and even a cross -examination of P. W. 5, the Lambardar, in respect of such a matter could not have been of much avail, it not being likely that he would have admitted that the confession was not made, besides this as he was obviously taking a prominent part from the very beginning in the prosecution of the case against the appellant, 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 con fession 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 ; this becomes apparent from a consideration of the provisions of sections 164 and 364 Cr. P. C., relating to judicial confessions. The burden of proof which lies entirely on the prosecution should always be discharged satisfactorily. For the above reasons, I set aside the conviction and the sentence. CORNELIUS, J.‑This appeal is by one Abdul Latif, from a conviction under section 304 Part I, Pakistan Penal Code, and a sentence of transportation for life by the trial Court which was reduced on appeal by a Division Bench of the Lahore High Court to five years' rigorous imprisonment. The crime was committed on the night of the 23rd June 1949. Two persons were murdered, namely, Mst. Hajran, a widow and her lover Dari. Each sustained fatal injuries inflicted with a heavy cutting weapon, such as a hatchet. It is also clear that they were sleeping close to each other at a but situated in the fields where they were attacked. Such an attack would ordinarily be expected from one or more male relations of the woman. The prosecution case was that there were two assailants, viz, Latif, her step‑son and another, Ghulam Rasul, her own son, who was acquitted. These two persons were secured during the night by Ghulam Qadir, Lambardar, but neither was caught pt the spot. Two hatchets were found at the spot, which have not been connected with either of the accused persons. The clothes of Ghulam Rasul were blood‑stained, but the trial Court accepted the explana tion that this was due to his having helped to move his mother's body. The learned judges of the High Court upheld the convic tion on a solitary piece of evidence, vii., the statement of the aforesaid Ghulam Qadir and Latif had reported the crime to him, saying that he and Ghulam Rasul had committed it. They have .made no reference in their judgment to three salient facts, affecting the confession, vii., that at the outset, the case for the prosecution rested on the evidence of two eye witnesses, there being no mention of any confession, .and that the alleged confession was proved at the trial after the "eye‑witnesses" had denied all knowledge of the occurrence; secondly, that the accused persons, so far from admitting even the possibility of a confession by either of them, had pleaded that the murderer was their uncle, Karam Elahi ; and, thirdly, that at the trial Latif was never asked whether he had con fessed to Ghulam Qadir, and therefore had never had an opportunity of furnishing an explanation for this single piece of evidence, which was held sufficient to convict him. An extra‑judicial confession, in order to carry weight as evidence, requires to be supported by exceptional circumstances, favouring the belief that it was made, and that it is true. Now, in this case, the first report to the police was made on Ghulam Qadir's instructions and purports to convey the information in Ghulam Qadir's possession at the time when the reporter left for the Thana. The absence of mention or suggestion of a confession, such as was later produced, after the collapse of the eye‑witnesses, points at once to the need of extreme caution in accepting the statement that it was made. Two other matters, having a similar, effect, appear in the evidence, viz., firstly, that Ghulam Qadir was a close friend and associate of the man Dari who was murdered, and therefore, not a person to whom the murderer was likely to surrender himself, and secondly, that an independent witness deposed that Latif was not with Ghulam Qadir on the way from his house to the spot, suggesting that he was "secured" later. Consequently, this was plainly not one of those cases where, despite the fact that a confession is not supported by the alleged maker, but is by necessary implication, contradicted, the Court could safely act upon it without corroboration. The learned judge of the trial Court marshalled three circums tances, as constituting corroboration. These are, firstly that he accused persons were arrested on the spot immediately after the occurrence, secondly, that the report against Latif was made by his own uncle who would not have implicated him had he been innocent, and, thirdly, that two hatchets were found on the spot and, according to the confession, hatchets had been used for committing the murder. I cannot but agree with the contention that none of these circumstances has any validity to implicate Latif in the crime. The presence of the dead woman's son and step‑son at the spot where her body lay being wholly natural, no taint of guilt can be inferred from it. In the report to the police, Latif's uncle merely reproduced what he had been told by the Lambardar, Ghulam Qadir, as he was bound to do ; the report itself tends to negative the confession. No confession was needed for ascertainment of the fact that the instruments employed by the murderers were hatchets. 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. It follows that the view taken by the learned judges of the High Court of this confession was incorrect, and that the trial Court acted rightly in searching for corroborating evidence. On analysis, the corroboration which the trial Court thought it had found proves to be wholy devoid of value, as against Latif, and learned counsel for the Crown has been unable to adduce any additional evidence or circumstance which does not suffer the same infirmity. Although this conclusion is sufficient to dispose of the appeal, I shall also deal briefly with the other serious defect in the trial pointed out above, namely, that the extra‑judicial confession, being the solitary piece of direct evidence on which the Courts below have based the appellant's conviction, was not put to him when he was examined, either in the com mitment proceedings or at the trial. The argument for the appellant that, in consequence, this piece of evidence should be excluded from consideration is strongly founded on the recent decision of this Court in the case of Rahim Bakhsh P L D 1952 F C

1. The reply for the Crown was that, having regard to the defence disclosed in the cross‑examination of the witnesses, and in the statements of the accused persons, no prejudice can be assumed to have been caused to Latif, since in all probability, he would have denied having made it. In the alternative, it was urged that if the defect was regarded by this Court as material, the proper course would be to remit the case for retrial, but such an order is out of the question, as I have found the conviction to be vitiated on another ground as well. I would observe, however, with reference to the other contention for the Crown that it is a hazardous proceeding for a Court, which finds that a fundamental rule of criminal justice, such as that embodied in mandatory terms in section 342, Criminal Procedure Code, has been infringed, to concern itself with speculations as to what use the accused person would have made of the legal right to an opportunity to explain every piece of evidence weighing against him, had it been allowed to him. His attitude would be based on his own ample knowledge of the circumstances which brought about his arrest and accusation, and determined by his judg ment, based on or assisted by legal advice, as to the manner in which he could best serve his own interests, in the exigencies of the trial. It is impossible for the Court either to possess his knowledge, or to simulate his point of view in this regard. In the present case, a mere denial of the allegation that a confession was made would suit, not the accused person, but the prosecution. It was open to the accused, in law, to refute or undo the confession in a variety of ways. Nothing in the pleas taken in defence, or the cross‑examination of the prosecution witnesses appears to me to limit, in any way, his complete freedom in this regard. Consequently, we must decline to assess the point of prejudice on the assumption that the appellant would merely have denied having made the confession adduced against him, had it been put to him. In my opinion, the following observations from the judgment of my Lord the Chief Justice in Rahim Bakhsh's case apply with full force to the facts of the present case :‑ "The failure of the trial Court to question the accused about his confession would amount to an infringement of the provisions of section 342 of the Criminal Procedure Code, and the confession will have to be excluded from considera tion in determining the guilt of the accused. Where such a confession or admission is the whole basis of the judgment convicting the appellant, the failure to question him about it must be held to have prejudiced his case substantially." For these reasons, I hold that the appellant's conviction is not maintainable, and I would accordingly allow his appeal and acquit him. A. H. Appeal allowed.