P L D 1960 (VV (PLP)

The confession of the co‑accused must necessarily be a confession relating to the same offence. After the confession relating to the same offence has been proved against the confessing accused, all that the Court is entitled to do is to take it into consideration. Section 30 of the Evidence Act itself does not state what evidentiary value the confession of a co‑accused will have. It only requires it to be considered against co‑accused along with other circumstances proved by evidence. A retracted confession of an accused can have very little value against a co‑accused. In the present case, the retracted confessions of Raza Muhammad, Darhoo and Sono can have no evidentiary value against the present appellant, firstly, because they are confessions made by co‑accused and, secondly, because they have been retracted. Apart from that, the most important aspect of this case is that the confessions of Raza Muhammad, Darhoo and Sono do not relate to the offence of murder of Mst. Sahiban. They are in relation to an offence under section 201, P. P. C. The retracted confessions of Raza Muhammad, Darhoo and Sono, therefore, have no value and can safely be ruled out of consideration for the purpose of corrobo rating the retracted confession made by appellant Amir Ali. If the law permitted that a confession of an accused charged with a minor offence be used against a co‑accused charged with a major offence, then considerable mischief would be played because several persons would conveniently make confessions implicating themselves in minor offences whereby they would make others liable for major offences. It is easy for any one to say that he had secretly buried the dead body of a person and allege that he was killed by another person and be convicted on a charge under section 201, P. P. C. The consequence of such a confession would be that the other person who is stated to have committed the murder would be sent to the gallows. It will be laying too wide and dangerous, a propo sition to hold that the confession of a minor crime by an accused is sufficient to corroborate the retracted confession of a co‑accused who has been charged with having committed a graver offence.

11. The other circumstance on which the prosecution have placed reliance is the pointing out of the place in Imam Shah graveyard from where the dead body of Mst. Sahiban was exhumed. The case of the prosecution is that the appellant and Raza Muhammad jointly took the police party to the graveyard and pointed out the place from where the dead body of Mst. Sabiban was exhumed. The witnesses who have been examined by the prosecution on this aspect of the case are Head Munshi and Third Class Magistrate, Muhammad Amin, P. W. 2, Dr. Jamil Ahmed, Exh. 29, and Gul Hasan, P. W.

7. Mashirnama, Exh. 8, has also been produced in corroboration of their evidence. None of these witnesses have in their evidence attributed the information of the place from where the dead body of Mst. Sahiban was exhumed to any one of the two persons Amir Ali or Raza Muhammad. It is well settled that where joint acts of several persons are sought to be proved, in order to ask the Court to draw an inference from such conduct, evidence should be led with some degree of particularity so that it may be possible for the Court to draw the necessary 1 inference from the conduct of each one of the persons concerned in the act. This principle applies not only to evidence relevant under section 27 but also to that under section 8 of the Evidence Act. We are supported in this view by the decisions in Fagiru and others v. Emperor (A I R 1929 Lab. 665) and Rafiquddin Ahmed and others v. Emperor (A I R 1935 Cal. 184 (F.B.)). The pointing out therefore, by two persons of the place from where the dead body of Mst. Sabiban was exhumed without there being any evidence to indicate as to who pointed out the said place will have no value against any of the persons who have been jointly concerned in pointing out that place. The circumstance of the pointing out of the place, therefore, against the present appellant will have no evidentiary value at all. The discovery of the dead body from that place which is consequent upon the pointing out of that place, will therefore also have no evidentiary value against the appellant. The circumstance as such of the place being pointed out from where the dead body of Mst. Sahiban was exhumed cannot be used in corroboration of the retracted con fession against the appellant.

12. The evidence that the dead body of Mst. Sabiban was found wrapped in ordinary clothes and was covered with an Ajrak and a Dupatta is a circumstance which establishes that Mst. Sahiban died an unnatural death, but it cannot be construed to be a circumstance in corroboration of the confession of murder.

13. The body of Mst. Sabiban was exhumed on 8th April 1959 and on that day the dead body was seen by the police in those clothes. The fact, therefore, of the dead body being in ordinary clothes, and the fact of it being covered with an Ajrak and a Dupatta were in the knowledge of the police on 8th April 1959, that is to say, a day before the confession was made by the appellant. It cannot, therefore, be said with the certainty that the statement of the appellant made in the confession that the body was buried in ordinary clothes and was covered with an Ajrak and a Dupatta was an account of the acts done by the accused or an expression of the knowledge derived by the accused from the police after the dead body was exhumed. It is difficult in these circumstances to say that the discovery of the clothes on the body of Mst. Sahiban would be corroboration of the retracted confession of the appellant. The opinion of the Doctor that Mst. Sahiban died of strangulation was also with the police before the appellant made the confession and as such it would have no probative value sufficient to be considered as a confirmatory circumstance in corroboration of the retracted confession.

14. The last circumstance on which the prosecution have placed reliance is the motive for which the appellant is said to have committed the murder of Mst. Sahiban. Motive has never been considered as a confirmatory circumstance corro borating the retracted confession. It is such a settled proposition is that it does not need discussion, nor does it stand in need of being supported by precedents.

15. The net result of the evidence on record is that the evidence against the appellant is reduced only to that of a retracted confession without there being any circumstance in corroboration of it. It is true ‑that the Public Prosecutor in charge of the case has bungled in this case as a result of which all that could possibly have been brought on the record to corroborate the retracted confession has not been brought. A few questions to the mashir and the police officer regarding the pointing out of the place from where the dead body of Mst. Sahiban had been exhumed might have established adequate circumstantial evidence against the appellant. It appears that the Public Prosecutor neglected his duty and did not care to look. into the papers in advance and to be clear in his mind as to the questions which he ought to have put to the witnesses. If the lower Court was vigilent it could have asked a, few necessary questions itself. Apparently, this case is ending in an acquittal mainly owing to the negligence on the part of the Public Prosecutor. The only evidence left against the appellant being that of retracted confession, it cannot be con sidered to be sufficient for convicting him even if we were morally convinced that the appellant was guilty of the offence with which he had been charged.

16. Considering the retracted confession to be insufficient for the purpose of convicting the appellant we accept the appeal of the appellant and acquit him. He is in jail and will be released forthwith.

17. The case of Raza Muhammad, Darhoo and Sono also needs consideration. We, therefore, take up their case as a revision suo moto. The evidence against Darhoo and Sono is the evidence of their retracted confessions only. The learned Judge has found corroboration of their retracted confessions in the retracted confession of the co‑accused which according to us is not quite proper. The evidence against Darhoo and Sono consequently is that of their retracted confessions only which in law is not sufficient for convicting them. They are, there fore, given the benefit of doubt and acquitted. They are in jail and will be released forthwith.

18. So far as the case of Raza Muhammad is concerned the confirmatory circumstances corroborating his retracted con fession have already been dealt with in dealing with the case of the appellant Amir Ali. They are not considered to be sufficient to corroborate the retracted confession of appellant Amir Ali. They will, therefore, not be sufficient to corroborate the retracted confession said to have been made by Raza Muhammad also. The evidence against Raza Muhammad will, therefore, be reduced to his retracted confession only which, as we have already said, is not sufficient for convicting him. He is also given the benefit of doubt and acquitted. He is in jail and will also be released forthwith. QADEERUDDIN AHMAD, J.‑

I wish to refer specifically to the argument advanced by counsel for the appellant that when ever the facts that are stated in a confession are shown to have been in the knowledge of the police before the confession was made, the confession is unreliable as having been induced by the police. In such circumstances neither the confession has any value nor the facts disclosed in the confession and proved later by evidence can be said to corroborate the confession. Counsel for the State supported this contention on the ground that such was the view of the Karachi Bench. I, therefore, called upon learned counsel for the parties to cite all those precedents in which this view was taken. Mr. Azizullah took time for this purpose and cited the fol lowing precedents to support his contention (1) P L D 1956 Karachi 350 at p. 352 ; (2) Cr. Appeal No. 364/58 (unreported) ; (3) A I R 1951 Cutch 92 at page 95 ; (4) A I R 1931 Oudh 166 at page

169. There are two casual observations in the first mentioned two judgments of this Bench. They are respectively as follows :‑ " The confession shows that two injuries were given with hatchet on the neck. But this was known already as the medical officer had examined the deceased before the confes sion." And " So far as the rest of the statement made by the accused is concerned, it was urged that it was the result of investigation which came to the knowledge of the police . . . .Mr. Ali Raza learned counsel for the State . . . . conceded before me that there is no other evidence on which reliance can be placed . . . . . I would for the reasons . . . . set aside the conviction and sentence passed on him." Counsel for the State informed me that such remarks have been made in a number of unreported judgments of this Bench. If it is so, then there may be some justification for the con tention raised by learned counsel for the appellant, but I may add that such observations are not meant to be taken as statements of abstract rules. Arguments built on them as if they were principles abstractly stated can easily become mis leading. Baxi, J.C. of the Kutch Judicial Commissioner's Court has carefully criticised the confession on which the prosecution relied in the above‑mentioned case of that Court and has observed as follows :‑ " The Public Prosecutor could not have summed up evidence against her (the accused) with greater neatness. The confession appears to be a resume of the prosecution case in addition to the confession of the crime. A confession which not only confesses the crime but builds up the entire prose cution case against the accused and introduces fact not within her knowledge or paves the way for corroborative evidence already in the possession of the Police is always suspect." (page 95) No fault can be found with this carefully expressed view of the learned Judge. If a confession is successfully criticised to demonstrate the defects pointed out by the learned Judge, the result is bound to be convincing. A Division Bench of the Oudh Chief Court has laid down a test for judging confessions in the above‑mentioned case of that Court. It is as follows:‑ "A true confession made by a person who takes part in a murder invariably adds something to the knowledge already possessed by the investigating officer, and that is the greatest test of its truth." I may state with utmost respect that the test of truth is not that it should be unknown until it is told. I see no reason for adding this qualification to the truth, if any, that may be contained in a confession. A written confession is initially presumed to be a genuine document if it conforms to the requirements prescribed by section 80 of the Evidence Act. The reason is that a confession amounts to self‑condemnation and nobody is likely to do so falsely, unless he was under duress or was misled to do so by consoling promises. Section 80 of the Evidence Act read with section 164 of the Cr. P. C. seeks to eliminate the chances of a confession being made under duress or by reason of alluring promises and also to impress on a confessor the gravity of his confession ; but in proportion to the distress of a man and the anguish of his mind he is likely to succumb to pressure and inducements. Therefore, and also because the benefit of doubt goes to the accused, judicial mind does not rule out the possibility of a confession being false and particularly the possibility of a retracted confession being false. Convictions are, therefore, not recorded in grave offences merely on confessions without independent corrobora tion. A corroboration should, therefore, be such as to convince a judicial mind. Its evidentiary value should be beyond reasonable doubt. Any corroboration which leaves a reasonable doubt in the mind is, therefore, inadequate ; but the existence of doubt should not be confused with the possibility of a doubt. If the fact stated in a confession were in advance in the knowledge of the police then in order to discredit their corroborative value there should be additional reasons to doubt that they were not stated by the confessor as the truth but were included in his confession to forge a chain of facts for proving the case of the prosecution. Slight reasons for connecting the links can be sufficient to establish such a doubt, because the existence of doubt is enough. Proof of coercion and inducement is far beyond the requirement. The distinction between a doubt and the imaginary possibility of a doubt is not academic because it is the basis on which an accused person against whom there is no direct evidence, is not acquitted without first scrutinizing his retracted confession as well as the corroborative evidence if any, The distinction was brought out by the ex‑Chief Justice of Pakistan Mr. Muhammad Monir, as a Judge of the Lahore High Court in Shera v. Emperor (A I R 1943 Lah. 5) while considering the value of an approver's statement which was made " after all the accused had been arrested and recoveries of stolen property made from them." He observed " In such cases the question is not whether a story could be put in the month of the approver but whether the circum stances show that this might have been done . . .." Unless there are reasons to suspect that the facts which were in the knowledge of the police were used by the prosecution in a confession, they may validly corroborate the confession. The Supreme Court of India has held in Hem Raj Devilal v. the State of Ajmer (A I R 1954 S C 462 at page 465, para. 12) and in the case of Balbir Singh v. State of Punjab (A I R 1957 S C 216, para. 18) that there is " no validity in the contention that a confession can only be corroborated by evidence discovered by the police after a confession has been made . . . . ." The opposite proposition is, however, correct that the evidentiary value of those circumstances that are discovered in consequence of a confession is much greater because the dis covery more or less guarantees the truth of the confession in respect of the facts so discovered. In this case the reasons given by the appellant for retracting his confession have not been believed by us ; but we have not rejected the evidence of the facts which the appellant had stated in his confession merely because they were in the knowledge of the police before the date of the confession. The reason for rejecting it, as I see the situation, is that there are reasons to doubt that the confession was made voluntarily. The problem of the prosecution was to establish the offence against the appellant without direct evidence to prove the crime of the appellant. They, therefore, wanted to connect the crime with the appellant by proving that he had pre‑planned it. The confession of the appellant provided reasons for the absence of eye‑witness as well as the evidence that it was secretly planned. The appellant has stated in his confession that he had seen Sahiban and Ghulam Ali in the act of illicit intercourse, but had not mentioned her unfaithfulness to anybody. In the same statement he has disclosed that there were men in whom he could confide his secret, for Sono and Raso are alleged by him to have actually assisted him in disposing of the dead body and to have conditionally promised to keep his secret. The evidence of the prosecution itself partly falsifies the appellant because Sheraz, P. W. 3, has stated that the appellant had informed him that Ghulam Ali was the Karo and that the dispute was decided by him after hearing the parties. The confession states that Sono, Razo and their families were sleeping at a distance of 9 paces only from the spot where the murder was committed but they were woken up by the appellant after Sahiban died of strangulation without dis turbing their sleep. This explanation of the confessor for the absence of eye‑witness is difficult to believe. Moreover, Sono and Razo appear to have been protected by the appellant's confession because they are said to have woken up after the murder, to have disapproved of the murder when they were told of it and, like good citizens, to have expressed their will to depose against the appellant if the crime was found out. I suspect a design behind these parts of the confession. There could be a bait for simple minded villagers in the design of the confession. There is a bait for the appellant to confess because he was confessing to a crime of which there are no eye‑witnesses and a bait for Sono and Razo to confess that they participated in disposing of the dead body because they were not to confess as accomplices of the murderer. By con fessing to a comparatively minor crime they could save themselves of complicity in the murder. All of them and Darhoon have actually confessed, but changed their statements in Court. As the confession of the appellant fits too well into the requirements of the prosecution, it invites careful examination. As the police had discovered in advance, with the help of a Doctor, that death had been caused by strangulation ; as the police officers had seen the dead body buried in ordinary clothes, and not in the customary shroud but with an Ajrak on it and a Dupatta, and as the contents of the confession create a doubt in my mind, I do not consider these facts to be reliable corroboration of the confession. I suspect that the knowledge of the police had infiltrated into the confession. I entirely agree with the judgment written by my learned brother. K. B. A. Appeal accepted.