2001 PLP 1939 (MLD)

‑‑‑‑S. 8(a)‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑‑"Court of competent jurisdiction" referred to in S.8(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, means the Trial Court constituted under the said Ordinance and not any other Court and though a confession made before the Trial Court would be .a sufficient proof of Zina or Zina‑bil‑Jabr liable to "Hadd" within the purview of S.8(a) of the Ordinance, yet it would not mean that any confessional statement recorded by a Magistrate under the provisions of Criminal Procedure Code was irrelevant for the purpose of "Ta'zir". ‑‑‑‑Ss. 8 & 10‑‑‑Proof of Zina or Zina‑bil‑Jabr liable to Hadd or Ta'zir‑‑ Confession‑‑‑Although the confessions recorded by the Magistrate under 5.164, Cr.P.C. alone may note sufficient to establish the charge under S.8(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, yet such confessions can be taken into consideration in the cases covered by S. 10 of the said Ordinance. The State v. Gulab Hussain alias Ghulam Hussain and. 3 others PLD 1994 FSC 17 ref. (c) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 164‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.37, 38, 39 & 41‑‑ Confession‑‑‑Admissibility and relevancy of a confession‑‑‑Admissibility or relevancy of a confession, though basically a question of law, depends upon the facts of, each case‑‑‑Confession would be inadmissible if its making appears to the Court to have been caused by any inducement, threat or promise, or is made before the police officer, or at the time when the accused was in the custody of the Police Officer as provided by Arts.37, 38 & 39 of the Qanun‑e‑Shahadat, 1984, and evidently it cannot be irrelevant because the word "confession" itself denotes that it is the voluntary statement made by the person charged with the commission of the crime, it is, however, a different matter as to what is the evidentiary or intrinsic value of the confession. (d) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 164‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.41‑‑‑Confession‑‑ Evidentiary value‑‑‑Confession alone cannot form the basis of a conviction unless it finds strong corroboration from independent and reliable evidence in material particulars. State v. Munir alias Gul Hassan PLD 1964 SC 813; Nadir Hussain v. The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341; The State v. Waqar Ahmad 1992 SCMR 950; Abdul Latif v. The State PLJ 1999 SC 264 and 1999 SCJ 413 ref. (e) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑ ‑‑‑‑S. 10(2)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.43, 2 & 3‑‑‑Appreciation o~ evidence‑‑‑Allegation of Zina‑‑‑Medical evidence relating to male accused was of no use because it simply indicated that he was capable of performing sexual intercourse and he being a married man himself had also not denied his potency‑‑‑Similarly opinion of the Lady Doctor concerning lady accused that she was used to sexual intercourse was of no help as she being a married woman lived with her deceased husband prior to the occurrence‑‑‑Deposition of a prosecution witness that he‑ had only seen both the accused going together in a car also did not advance the prosecution case‑‑‑Involvement of accused in the commission of Zina could not be conclusively inferred from any piece of evidence available on record‑‑‑Admission of lady accused in her confessional statement to have enjoyed illicit relations with her co‑accused could not corroborate the confessional statement of the male accused, because as per Art. 43 of the Qanun‑e‑Shahadat, 1984, though a confession made by one accused can be taken into consideration against another, yet it being not a substantive piece of evidence within the purview of ‑Arts.2 & 3 of the Qanun‑e‑Shahadat, 1984, could not take the place of or be substituted for evidence‑‑‑Even otherwise, confession of both the accused being inconsistent and discrepant were of no use for the purpose of corroboration‑‑‑Prosecution had failed to produce confirmatory evidence‑‑‑Accused were acquitted in circumstances. The State v. Gulab Hussain alias Ghulam Hussain and 3 others PLD 1994 FSC 17; Criminal Appeal No. 48 of 1999; State v. Munir alias Gul Hassan PLD 1964 SC 813; Nadir Hussain v. The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341; The State v. Waqar Ahmad 1992 SCMR 950; Abdul Latif v. The State PL1 1999 SC 264; 1999 SCJ 413; Maqbool Hussain v. The State PLD 1960 SC 382; Joygun Bibi v. The State PLD 1960 SC 313; Kashmira Singh v. The State of Madhya Pradesh AIR 1952 SC 159; Periyaswami Moopan and another v. Emperor AIR 1931 Mad. 177; Ram Parkash v. The State of Punjab AIR 1959 SC 1; Haricharan Kurmi and Jogia Hajam v. State of Bihar AIR 1964‑ SC 1184;' Asfandyar Wali v. The State PLD 1978 Pesh. 38, Ibrahim v. The State PLD 1963 Kar 739; Allah Bakhsh and another v. The State PLD 1982 FSC 101; Mst. Ghulam Safia v. The State PLD 1996 FSC 169 and Muhammad Ameen v. The State PLD 1990 SC 484 ref. (f) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 164‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.41‑‑‑Confession‑‑ Concession of co‑accused, utility of‑‑‑Confessional statement of co‑accused, retracted or otherwise, at the most may be used in support of other evidence and proper course, therefore, is to first carefully examine the entire evidence by excluding the confession and if on judicious and analytical examination of evidence the Court is of the opinion that conviction can be recorded on the basis of such evidence alone, then the confession may not be ‑considered, otherwise it may be called in aid to strengthen the belief that the accused was guilty of the offence. Kashmira Singh v. The State of Madhya Pradesh AIR 1952 SC 159; Periyaswami Moopan and another v. Emperor AIR 1931 Mad. 177; Ram Parkash v. The State of Punjab AIR 1959 SC 1 and Haricharan Kurmi and another v. State of Bihar AIR 1964 SC 1184 ref. (g) Criminal trial‑‑‑ ‑‑‑‑Evidence‑‑‑Witness‑‑‑Corroboration must be by an independent witness and not by the testimony of an accomplice or confession of another co accused. State v. Munir alias Gul Hassan PLD 1964 SC 813; Asfandyar Wali v. State PLD 1978 Pesh. 38 and Ibrahim v. State PLD 1963 Kar. 739 ref. (h) Criminal trial‑‑‑ ‑‑--Evidence‑‑‑Witness‑‑‑Corroboration‑‑‑Where there are two sets of evidence each requiring corroboration, one cannot be used to corroborate the other. (i) Criminal trial‑‑‑ ‑‑‑‑Evidence, appreciation of‑‑‑Benefit of doubt‑‑‑Nobody is to be punished unless proved guilty on the basis of reliable, independent and true evidence and the benefit of reasonable doubt when occurring must go to the accused. Fazal Haq Abbasr for the Complainant. Qari Abdul Rashid for the State.