P L D 1954 Federal Court 197 (PLP)

ABDUL RASHID, C. J., SHAHABUDDIN AND CORNELIUS, JJ.-This appeal by special leave has been brought by Qutba son of-Umra against his conviction under section 302 and section 302 P. P. C. by the Sessions Judge of Mont gomery, which, along with the sentences of death and three years' rigorous imprisonment were confirmed on appeal by the Lahore High Court. It was charged against him that single-handed, on the 1st April, 1952 the time being about midday, he attacked three persons namely, Mst. Saidan a woman aged about 45, her nephew Manzoor aged 17 years and her son Khushi Muhammad aged 12 years with a hatchet, causing four injuries to Mst. Saidan, ten to Manzoor and five to Khushi Muhammad. As a result, Manzoor died almost at once, and Mst. Saidan too died on the spot, but after an interval during which she retained consciousness. Khushi Muhammad's injuries were not serious but he is admitted to have lost consciousness for some time. The case for the prosecution is that all these persons were attacked and brought down at the same place. This appears clearly enough from the statement made in cross examination before the Committing Magistrate by Khushi Muhammad as follows :- "I was also given injuries at the same place where my mother and Manzoor, deceased were killed. I did not run away". In the same statement, Khushi Muhammad gave an exact order in which the three persons were attacked in the following words :- "When we reached the dry bank of the river, we were hailed by Qutba accused. Qutba was armed with a kulhari. Qutba gave blows to Manzoor deceased. Then he attacked my mother and inflicted injuries on her person with kulhari. Then Qutba gave me a kulhari blow on my head. I became senseless." In cross-examination, Khushi Mahammad denied that he was first to be beaten, and had become senseless. These are the only details of the occurrence to be found on the record, and whether or not they can be accepted from the mouth of Khushi Muhammad is placed in grave doubt by a number of circumstances. The first is that Khushi Muhammad, deposing at the trial, declared that he had given these details at the instance of the police, and that in fact he knew nothing, as he was suddenly hit on the head from behind with a kulhari and fell down unconscious. When he came to, he found his mother and Manzoor lying dead. He was subject to the usual cross-examination, to bring out what he had said in the Committing Court. The accused Qutba, it should be mentioned, is brother of one Bakhshaya, who is married to a sister of Mst. Saidan, the deceased. The details of the manner in which Khushi Muhammad was treated by the police and placed under pressure to make his statement were brought out by defence counsel in his cross-examination. Certain physical circumstances go strongly to discount Khushi Muhammad's earlier statement. The first is that, since it was broad day-light, and the place was in the open, if there had been a single assailant who initially attacked Manzoor, and after finishing with him dealt with Mst. Saidan, and there after with Khushi Muhammad, there can be no doubt what- Mst. Rahmate does not speak to any statement made by the boy Khushi Muhammad on the spot and though Ramzan deposed that Khushi Muhammad had said that the assailant was Qutba, it was brought out that neither to the police nor in the Committing Court had he made such a statement. Khushi Muhammad's evidence at the trial leaves no scope for any statement by Mst. Saidan to these two witnesses being heard by him, and though in the Committing Court he said that when he came to, he found his mother begging a man and a woman for water, which they supplied, even there he did not mention any statement by Mst. Saidan to these persons. As for himself; he never said that he volunteered any information to them. At the best, Ramzan's statement regarding the previous statement by Khushi Muhammad could serve only to corroborate Khushi Muhammad's own testimony. Since Khushi Muhammad himself does not say he made any statement to Ramzan, the evidence of Ramzan to this effect has no value. As for the alleged dying declaration to these two witnesses by F Mst. Saidan, not only is it not supported by Khushi Muhammad, but a strong reason for disbelieving it altogether appears in the statement of the doctor who examined the corpse of Mst. Saidan that in her case, death must have been instantaneous, and having; regard to the very serious wounds and fractures on her head and the very deep gash in the back, there need be no hesitation in accepting the doctors opinion on this point. Abdul Rahman P. W. 8 arrived on the spot at a late stage after hearing of the occurrence. He states that he was told on the spot by Khushi Muhammad that Qutba had attacked Mst. Saidan, Manzoor and himself, and he mentioned this in the report of the occurrence which he made to the police, but it is to be pointed out that this report was only completed on the spot and cannot be allowed the same weight as if it had been recorded at the Thana 7 miles away and further that Khushi Muhammad does not say that he ever spoke to Abdul Rahman. The trial Judge placed no reliance on the statements of Ramzan and Mst. Rahmate, but considered that Abdul Rahman's account of what Khushi Muhammad told him on the spot served to corroborate the version of Khushi Muhammad himself given in the Committing Court, which he believed was a "true and voluntary statement", from which he had resiled "under the influence of the relatives of the accused who are also (his) relatives". In the judgment of the High Court, the statements of the witnesses are considered seriatim, and reference is made to certain defects appearing in those of Ramzan, Mst. Rahmate and Ali Muhammad, who deposed as a defence witness, although he was named in the initial report. The effect of Ali Muhammad's statement was to nullify the testimony of Ramzan and Mst. Rahmate. The learned judges clearly disbelieve Ali Muhammad, but express no clear opinion concerning the other two. Dealing with Ramzan's police statement, they observe "this may mean that the witness had said to the police more than what he had seen, or that he was now suppressing what he had seen." Regarding Mst. Rahmate's denial of the presence of Ali Muhammad, they have remarked:- "This would show a desire on the part of Mst. Rahmate to save the prosecution case from being weakened but it does not follow from this that the prosecution case is not true or that Mst Saidan made no dying declaration to her." The absence of interest in either side on the part of the two witnesses was stressed, and since, at the conclusion of the judgment, the learned judges state that they were not impressed by any of the points 'urged by the appellant's counsel, which included the contention that "the evidence of Khushi Muhammad, Abdul Rahman, Raxnzan and Mst. Rahmate P. Ws. does not prove the case for the prosecution", it would appear that the doubts affecting the testimony of Ramzan and Mst. Rahmate were resolved in favour of the prosecution. The law requires that the benefit of such doubts should go to the accused persons. They cannot be resolved by mere as sumptions regarding the motives by which witnesses might have been guided in making variant statements. Any indica tion that a witness has adapted his testimony in relation to any motive other than a desire to disclose the truth so far as is known to him throws a doubt on the statement which must go to the benefit of the accused, unless resolution of the doubt be possible with reference to other credible evidence or established circumstances. On this part of the case, it thus becomes clear that the two conflicting statements of Khushi Muhammad stand on the record, on a part with each other, neither being strengthened by any evidence which has already been considered. The later statement , on the contrary is greatly weakened by its being inconistent with three concrete circumstances to which reference has already been made. If the case rested here, the accused would be clearly entitled to be acquitted. There is however other evidence on the record, namely (1) the discovery of a wooden chip from a hatchet handle on the spot (2) the capture of the accused on the day following the murder, and the recovery from him of a blood-stained hatchet from which the chip found on the spot had been broken off and (3) an extra-judicial confession made by him to his captors. The trial judge believed that the discovery of the chip on the spot which fitted the handle of the hatchet recovered proved conclusively that the hatchet was indeed used on the spot. He believed also that the hatchet was recovered from Qutba in the circumstances narrated by his captors Wazir Muhammad and Abdul Ghani. The evidence of these two witnesses regarding the confession to them was discrepant, that of Wazir Muhammad strongly favouring the belief either that no confession was made, or if any was made, it was in consequence of an inducement held out to the ac cused by these two men. Although the trial judge did not find it necessary in the event to rely on the recoveries or the extra judicial confession, he was inclined to believe that the confession was made, for he has observed that Wazir Muhammad vans "trying to help the accused," and "to create doubt and confusion", and that he seemed "to have been prompted lay a soft corner for the accused." He did not concern himself with the question whether the confession could, in the circumstances, be held to have been voluntary and free from inducement. The learned judges in the High Court on the other hand, thought the confession was "perfectly admissible." They did not believe that it was induced by fear, although they thought that the surrender of his hatchet by the accused, which was made about the same time, was due to the fear occasioned by seeing Wazir Muhammad and Abdul Ghani loading their guns when they saw him. It was contended that these were persons "in authority", and one of them admit ted the use of inducement to procure the confession, but as to this, the High Court observed that they were ordinary villagers and possessed no authority to support any promise which may be shown to have been made by them. They placed no reliance on the chip and the fact that it fitted the hatchet, though they believed the hatchet was recovered as stated by the witnesses. It is necessary to observe that the major doubt to which the evidence of Wazir Muhammad gave rise namely whether any confession was made at all, has not been considered by the High Court. Nor has any clear finding been recorded whether any inducement was in fact given to the accused to confess. In concluding that Wazir Muhammad and Abdul Ghani possessed no authority, the learned judges have failed to appreciate the circumstances of the capture of Qutba as stated by these witnesses themselves. Although they say they were sent by the Thanedar to find Qutba, it is evident from the fact that they carried guns and loaded them when the accused came in sight, and thereafter relieved him of his weapon and carried him back to the Thanedar on one of their bicycles, that they went out to arrest him. As private citi zens they could not exercise such a power, and it is plain that they regarded themselves as being authorised to exercise it The Thanedar could not legally confer such power upon them yet it is clear enough that they acted as if it had been confer red upon them. Consequently, they purported to exercise authority over Qutba at the time of the capture, and the irresistible show of force against a single man in a lonely place makes it clear that the authority was none the less real for its being devoid of legality. If therefore, Wazir r Muhammad's statement that an inducement was offered be accepted in preference to the contrary statement of Abdul Ghani, the confession would be irrelevant under section 26 of the Evidence Act, 1872. In the absence of such a preference expressed by the learned judges, however, the matter remains at the stage of doubt. Yet, both the Courts below have thought fit to accept the proof of the extra-judicial confession having been made, and paying due respect to this view, it becomes necessary to consider whether, in view of the doubts affecting the con fession, it can be acted upon safely, and if so, to what extent. This question has not been considered by the Courts below. A clear statement of the correct procedure in relation to the acceptance of extra-judicial confessions where the proof of their having been made is not free from doubt, was enunciated by the majority of the judges of this Court who decided the recent case of Abdul Latif (P. L. D. 1952 F C p. 113) It does not appear that this case was cited before the learned judges in the High Court. On the other hand, our attention has been drawn to a later decision by a Division Bench of the same High Court, in the case of Nawab Din (P. L. R. 1952 Lah. 355=P. L. D. 1952 Lah, 345,) in which the majority view in the case of Abdul Latif, which represents the law laid down by this' Court, appears to have been doubted. This may provide the explanation for the failure to apply the principle of Abdul Latif's case in the present case. It is desirable that we should, in this judgment, clarify certain misconceptions underlying certain of the opinions expressed in the case of Nawab Din, to facilitate future application of the law laid down by this Court. In Abdul Latif's case, the prosecution relied on an extra judicial confession, apart from which there was no evidence, direct or circumstantial in the case. There were strong cir cumstances suggesting that the alleged confession might not have been made, but no contradiction was furnished, except by the denial of the accused persons, which is ordinarily re lated more nearly to the apprehended consequences than to the truth of the matter. In the judgment of Cornelius J. with which Abdul Rashid C. J. was in complete agreement, the following observations were made, which indicate sufficiently the line of decision :- " An extra-judicial confession, in order to carry weight as evidence, by itself, requires to be supported by exceptional circumstances favouring the belief that it was made and that it is true." [This proposition was not intended, and should not be under stood, in a limiting sense, in relation to the conditions requisite for the admissibility of a confession, which are embodied in various sections of the Evidence Act, 1872.] After stating the circumstances which cast a doubt on the evidence regarding the making of the confession, the following conclusion was drawn :- " Consequently, this was not one of these cases where, despite the fact that a confession is not supported by the alleged maker, but is, by necessary implication, contradicted, the Court can safely act upon it without corroboration." The circumstances cited as corroboration were then considered, and found to be of no validity for the purpose of implicating the accused in the crime. The contention that the High Court's acceptance of the confession was binding on this Court was then dealt with. It might be of advantage to explain here that this Court has hitherto followed the practice of the Privy Council in relation to such matters as findings of fact and appreciation of evidence, namely, to regard such questions as being for final decision by the Courts below. Ordinarily this Court does not interfere merely because it would have taken a different view of evidence admitted. The observations of Cornelius J. on this subject were as follows :- "I am unable to accept the argument, 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 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, 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 applica tion has been crystallised into a rule of practice having the force of law." There being no corroboration at all available, the extra-judicial confession was held, to be insufficient in that case to sustain the conviction. These observations have been subjected to critical scrutiny in the judgment of the learned Chief Justice of the Lahore High Court, in the case of Nawab Din, where a large number of decisions of the Indian High Courts have been cited, as well as the views of learned writers on the subject of evidence. As a result of this lengthy examination, the learned Chief justice reached the following conclusion:- " Akram J. contended himself by saying that though an extra-judicial confession could be made the sole basis of a conviction, utmost care and caution should be used in doing so. Cornelius J., however, went much further when he said that in accordance with a rule of practice which has acquired the force of law a confession cannot be received in evidence and acted upon unless it is corroborated in material particulars by independent evidence. Abdul Rashid C. J., while he said nothing about the view taken by Akram J. explicitly expressed his agreement with the reasoning embodied in the judgment of Cornelius J." With respect to the learned Chief justice, the observations of Cornelius J. were not intended or expressed to be applicable to confessions of every kind. They were specifically addressed to cases of extra-judicial confessions, where the proof of the making of the confession is not free from doubt, and provide what is, in the view of the majority in Abdul Latif's case, the minimum standard by which the doubt can be resolved sufficiently to sustain a conviction where the solitary piece of direct evidence is such confession. In other words, m order to convict a person solely upon an alleged confession of the facts of the crime, which he denies having made, and as to the making of which there is some degree of doubt, it is necessary that those facts should appear aliunde to an extent sufficient to indicate the implication of the maker of the confession in the commission of the crime. A clearer apprehension of the effect of the observations of Cornelius J. in Abdul Latif's case appears in the judgment of Kayani J. in the same case, i.e., that of Nawab Din, but the further conclusion of this learned judge, as well as the learned Chief Justice, that the majority of the Judges in Abdul Latif's case did not intend to lay down a rule " fundamentally different from that stated by Akram J. " in the same case is distinctly misleading, and we would be failing in our duty if we did not employ the present occasion to issue a correction. That there are fundamental differences should be clear enough from the foregoing observations. The judgment of the learned Chief Justice contains another comment which calls for notice. At one place, he has expressed the following opinion :- " It is true that the language used by the majority is new and has never been used before either in this sub-continent or in England." And again :- The language used by the majority in Abdul Latif's case has never been used either here or in England with regard to the extra-judicial confession of a prisoner." The expression " language of the majority " is unmeaning with reference to the facts, for there was no majority judgment in the case. The words employed in the judgment of Cornelius J. admit of no doubt concerning their meaning. The concern of the Courts is with the application of the principle laid down, which is of binding effect Their views regarding the nature of the language employed are, we say so with all respect, immaterial. Nor is it necessary for this Court, in view of the clear provisions of section 2.12, Government of India Act, 1935. to which pointed reference was made in the recent case of Fazal Elahi (P. L. D, 1953 F C p, 35.), to endeavour to justify the law it lays down by reference to other authoritative statements of law. Both for this Court, as well as for the Courts subordinate to it, it is sufficient that its judgments should be understood as laying down the law only in relation to the facts found in such judgments. Of necessity, the propositions which it is obliged: to enunciate are subject to qualifications, and where these are not expressly stated, they must be derived from the facts found. In the case of Abdul Latif, the qualifications were sufficiently apparent, and were indeed referred to in the particular propositions. Some part of the effort involved in the recourse to sources of law outside the decision of this Court might have been saved if the decision had been correctly appreciated. Another source of difficulty appears from the following passage in the judgment of the learned Chief Justice :- " Since as a matter of law no corroboration of a confession is needed, it is plain that no rule regarding the quantum and nature of corroborative evidence can be laid down. The rule regarding corroboration in material particulars by independent evidence has always been associated with the evidence of an accomplice and it is obvious that there is no analogy between the testimony of an accomplice and the confession of a prisoner." (The underlining is ours). It is desirable to emphasise that the decision in Abdul Latif'a case does lay down the requisites of evidence necessary to corroborate an extra-judicial confession which is denied by the alleged maker, where the proof of the making of the confession is not free from doubt. The employment of the confession as direct evidence is contingent upon the removal o such doubts, which is made conditional upon the existence of other independent evidence tending to implicate the alleged maker. With respect to the learned Chief Justice, this technique in the removal of doubts of this nature is by no means confined to the inherently suspicious evidence of accomplices. The rule has been adopted from the English jurisprudence, and it is of interest to note that in England, such corroboration is required, by express statutory provision, in at least two other cases. Where the charge is of procuring women for prostitution, and the direct evidence is that of a single witness (usually the woman), no conviction can be had unless such witness be corroborated in some meterial particular by evidence implicating the accused (Criminal Law Amendment Act, 1885 ; 48 and 49 Vict. c 69). The precaution may, in such a case, be thought to be necessitated by the special circumstances attending such cases. An instance of the same precaution being applied generally to witnesses of a particular class, however, is that of evidence given by children of tender years, otherwise than on oath. The Children and Young Persons Act, 1933 (23 Geo. 5 c. 12) provides that no person may be convicted upon testimony of this kind unless it is corroborated by some other material evidence in support thereof implicating the prisoner. No hesitation need be felt in supposing that the precaution of requiring such corrobora tion as itself tends to implicate the prisoner is rendered necessary because the direct evidence is such as might be true, or on the other hand, might not be true. The Courts in the sub-continent of India, and since the Partition, in Pakistan have consistently looked for evidence of this kind to remove doubt of the kind created regarding a confession by its being retracted. In Nawab Din's case, the learned Chief Justice has himself observed :- "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." We note with satisfaction that the Courts of Pakistan, including the Lahore High Court and its subordinate Courts, do, as a rule, require support by corroboration, in relation, to an extra-judicial confession which has been retracted. Where the proof of the making of the confession is also not free from blemish, the factor of doubt is multiplied to a degree where to act upon it might be altogether unsafe. That was the position in Abdul Latif's case, and it is also the position in the present case. By the decision in Abdul Latif's case, it is provided that if, in the face of such a situation, the Court is still inclined to believe that the confession was made, the necessary condition of such belief and the consequent employment of the confession as evidence against the accused is that there should be corroboration from independent sources which itself tends to implicare the accused. The circumstances of doubt arising out of the evidence in such a case are by no means less damaging in their effect upon the credibility of the evidence upon which it is sought to act than the presumption that an accomplice is unworthy of credit. We trust that the clarification which we have been enabled, in the course of this judgment, to provide will avail to remove all difficulties in the way of the subordinate Courts in applying the rule laid down by the decision in Abdul Latif's case. In a purely technical respect, it is perhaps desirable that we should amend the description applied to it as "a rule of prudence, which through long and consistent application has been crystallised into a rule of practice having the force of law" by saying that the rule of practice has become virtually a rule of law. But, in the practical aspect, the effect of the decision remains virtually unchanged. With respect to the case against the appellant Qutba, we find on a careful analysis that the learned Judges have erred in two respects. Firstly, in accepting the earlier testimony of Khushi Muhammad they have ignored the damaging effect of his contrary statement in Court, and of the concrete circumstances which render the earlier statement highly improbable in point of truth. Secondly, they have accepted without the necessary corroboration, an extra-judicial con fession, regarding which there were manifest doubt not only as to whether it was made, but also as to its voluntary nature. In the circumstances, the judgment of the High Court cannot be allowed to stand, and we hereby allow the appeal and acquit the appellant. A. H. Appeal allowed.