P L D 2007 Supreme Court 202 (PLP)

MUHAMMAD NAWAZ ABBASI, J.

The appeal by leave of the Court under Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1973 has been directed against the judgment dated 8-2-2001 passed by the Federal Shariat Court, Islamabad, whereby the criminal appeal filed by the appellant against his conviction and sentence awarded to him under section 302(b), P.P:C. read with section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 201, P.P.C. by the learned Additional Sessions Judge, Dera Ismail Khan, was dismissed and the murder reference sent by the trial Court was disposed of accordingly. The appellant was sentenced as under:-- (a) Under section 302(b), P.P.C. death with fine of Rs.20,000 and in default of payment of fine to undergo R.I. for one year. (b) Under section 10(3) of Offence of Zina Enforcement of Hudood) Ordinance, 1979 rigorous imprisonment for a term of five years. (c) Under section 201, P.P.C. rigorous imprisonment for 4 years with fine of Rs.10,000 and in default of payment of fine to undergo R.I. for 6 months. The leave was granted by this Court in this appeal to consider the following questions:-- "(a) As to whether Juvenile Justice System Ordinance, 2000 is applicable to this case. (b) Whether the judicial confession made on oath can be used against the petitioner for sustaining the death sentence; and (c) Whether such confession made on oath was admissible in evidence and could have been acted upon."

2. The case was initially registered against the appellant under section 302, P.P.C. for the allegation of committing the murder of Mst. Tasleem Bibi, a minor girl of the age of 8/9 years, daughter of Ghulam Haider on the report lodged by Ata Muhammad, brother of Ghulam Haider on 2-4-1999 at Police Station, Kirri Khaisore, District D.I. Khan and subsequently, in the light of medical evidence, section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was also added. It was stated in the F.I.R. that on 1-4-1999 at 9 a.m. the deceased girl went to Chashma Right Bank Canal but did not return and the complainant during the search of the girl, came to know at about 4-30 p.m. that a dead body of a child was lying under a tree on the northern side of village Chashma. The complainant, along with Ameer Khan, on reaching there found that it was the dead body of Mst. Tasleem Bibi and she was tied from her neck with her dopatta and blood was oozing from her mouth. The S.H.O. of the concerned police station on arrival at the spot prepared the inquest report, took into possession the blood-stained earth from there and sent the dead body for postmortem examination. Subsequently, he also took into possession the last worn-cloths, shirt, shalwar and dopatta of the deceased. The appellant was arrested on 4-4-1999 and when produced before a Judicial Magistrate on 5-4-1999,he volunteered to make the confession. The Magistrate on the same day, after recording his confessional statement under section 164, Cr.P.C. on oath sent him to the judicial lock-up. The prosecution in proof of the charge, examined 12 witnesses and mainly relied upon the judicial confession of the appellant, the medical evidence and the recoveries.

3. Lady Dr. Fozia Ambree, Women Medical Officer (P.W.4) conducted autopsy of the dead body on 3-4-1999 at 8-00 a.m. and observed as under:-- "Ligature around neck. Pale yellow colour dopatta throid cartilage. Three turns knot left side. Due to advanced putrefaction, no marks of violence, injury could be seen. Membranes, brain, spinal cord, congested edematous. THORAX. Walls, riba and cartilages normal. Cynosis over the anterior thorastic walls, ribs and cartilages normal. Laryax and trachea injured.... ABDOMEN: walls greenish dis-coluration, blisters abdomen distended, rigid In the opinion of doctor, cause of death was asphyxia due to strangulation and the probable time between death and postmortem was 36 hours. The gist of the evidence is as under:

4. Abdur Rauf (P.W.5), Judicial Magistrate who recorded the confessional statement of the appellant, deposed that accused was produced before him on 5-4-1999 and he having satisfied himself about the willingness of the appellant to make confession, recorded his 'confessional statement on oath wherein he stated that he after committing zina with the deceased girl, caused her death by strangulation. The statement of appellant is read as under:-- (Sd.) Abdul Rauf Khan, Civil Judge/Judicial Magistrate, D.I. Khan Dr. Rab Nawaz (P. W. 10) conducted medical examination of the appellant and observed that he has developed secondary sexual characters and there was nothing to suggest that he was unable to perform sexual intercourse. Atta Muhammad complainant (P.W.11) narrated the circumstances leading to the fateful occurrence and the subsequent events in detail. The appellant in his statement under section 342, Cr.P.C. denied to have made confessional statement voluntarily before the Magistrate and in answer to the question No.4 replied as under:-- "

I am a rustic villager. That person had given me oath on Holy Qur'an and had tempted me to confess the guilt before him, so that I might be pardoned by Almighty God. My thumb impression was the nature obtained on the statement which was not offered me and I was handed over back to the same to who had also got the photo copy of that so called statement." The appellant pleaded that at the time of alleged occurrence, he was minor. In answer to question No.6 he replied as under:-- "I am not an adult and was 13 years and eight months old at the time of alleged occurrence. In this behalf, I place on record the copy of my school leaving certificate (Exh.DA), according to which my date of birth shown there in is 10-12-1985. The Doctor had actually not fulfilled the required method to determine as to whether I was then potent or not because no ejaculation test was performed by him and on clinical examination he declared that I was potent." In proof of the plea of minority, the appellant placed reliance on his school leaving certificate and examined Rab Nawaz, Head Teacher of the school and Muhammad Nadeem, LDC of Election Office in his defence.

5. Learned counsel for the appellant has raised the following contentions in support of this appeal:-- (a) The judicial confession made on oath was not admissible in evidence and having been obtained through undue influence, inducement and coercion, was not voluntary to have any evidentiary value. (b) The confession was subsequently, retracted and could not be made basis of conviction without independent corroboration. (c) The capital punishment on the basis of sole evidence of retracted judicial confession was not justified. (d) The appellant at the time of alleged occurrence was less than 18 years of age and under Juvenile Justice System Ordinance, 2000, he could not be awarded death penalty.

6. The learned Assistant Advocate-General (A.A.-G.), on the other hand, has contended that the appellant made confession before a Judicial Magistrate on the next day of his arrest without any inducement or coercion, therefore, its subsequent retraction would not effect its admissibility and reduced the evidentiary value of the confession. The learned A.A.-G, submitted that a retracted judicial confession if is found true, voluntary and confidence-inspiring, it alone can be made basis of conviction and that in the present case, the judicial confession made by the appellant being supported by the medical evidence, was found to be true, voluntary and confidence-inspiring. The learned A.A.-G. while dealing with the plea of minority taken by the appellant submitted that the appellant instead of bringing on record his birth certificate in proof of his age, placed reliance on his school leaving certificate which would not be considered a substantial evidence of age and that in any case the occurrence in the present case had taken place much before the promulgation of Juvenile Justice System Ordinance, 2000, therefore the appellant would not be entitled to avail the benefit of said Ordinance.

7. The first and the most essential question requiring for determination in the present case would relate to the admissibility of the judicial confession made by the appellant which was recorded on oath to maintain his conviction and the second question for consideration would relate to the quantum of sentence.

8. The provisions of sections 1.64, Cr.P.C. and 364, Cr.P.C. invariably apply to all sorts of statements and as confessional statement recorded under section 164, Cr.P.C. on oath is violative of section 5 of the Oaths Act, 1873 which prohibits the administration of oath or affirmation to an accused person, therefore, the question for consideration would be whether a confessional statement which was recorded on oath, if caused no prejudice or injustice to the accused, is admissible in evidence or not. The rule enacted in section 5 of Oaths Act, 1873, is based on the concept that law does not compel an accused to make a confession and he is under no obligation to speak the truth but if he willingly and voluntarily makes a judicial confession his statement is an evidence and thus in the light of this principle the administration of an oath or affirmation to an accused is considered not based on public policy and is an illegality in law. This rule of English Law, in principle, is not in conflict with the principles governing the criminal administration of justice in Islam except that a Muslim is not supposed to tell a lie before the Court and must speak truth. The old provisions in Pakistan Penal Code, relating to the offences affecting human body, were substituted with new provisions through Qisas and Diyat Ordinance, 1990 enacted in the light of Injunctions of Islam and the offences mentioned in Chapter XVI (Of Offences affecting the Human Body) were made punishable as Qisas or Tazir. The standard of evidence for proof of an offence punishable as Qisas or Tazir; is provided its section 304, P.P.C. as under;

"Proof of Qatl-i-Amd liable to Qisas, etc.,--(1) Proof of Qatl-i-Amd liable to qisas shall be in any of the following forms, namely:-- (a) the accused makes before Court competent to try the offence a voluntary and true confession of the commission of offence; or (b) by the evidence as provided in Article 17 of Qanun-e-Shahadat Order 1984, (P.O. No.10 of 1984). (2) The provisions of subsection (1) shall, mutatis mutandis, apply to a hurt liable to qisas.''

9. Section 388-F, P.P.C. provides that in the interpretation and application of the provisions of the above Chapter relating to the offences affecting human body and in respect of matter ancillary and akin thereto the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of Holy Prophet (peace be upon him). Similarly, the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 was promulgated on 10-2-1979 and it is provided in section 3 of the said Ordinance that provisions of this Ordinance shall have effect notwithstanding any thing contained in any other law for the time being in force. The form of evidence for proof of Zina or Zina bil Jabr liable to Hadd is provided under section 8 of the said Ordinance in the following manner: "

8. Proof of Zina or Zina bil-Jabr liable to Hadd.-Proof of `zina or zina bil jabs', liable to hadd shall be in one of the following forms, namely: (a) The accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or (b) At least four Mulsim adult male witnesses about whom the Court is satisfied having regard to the requirements of `Tazkiyah al-Shuhood' that they are truthful persons and abstain from major sins ('kabair') give evidence as eye-witnesses of the act of penetration necessary to the offence: Provided that if the accused is a non-Muslim the eye-witnesses may be non-Muslims. Explanation.-In the section `Tazikyah al-Shuhood', means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness."

10. Section 9 of the ibid Ordinance provides that in a case in which the offence of Zina or Zina bil Jabr is proved only through confession of accused, Hadd shall not be imposed if the convict retracts his confession before the enforcement of Hadd or part of Hadd. The evidence in proof of offence of Zina liable to Hadd or Zina bil Jabr is not available in the form provided under section 8 of the ibid Ordinance the offence is punishable as Tazir and the standard of evidence for proof of offence punishable as Tazir would be in the form as provided under Article 17 of Qanun-e-Shahadat Order 1984 which reads as under: "Competence and number of witnesses.

(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Suunah. (2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law

(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and (b) in all other matters, the Court may accept, or act on the 'testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant."

11. There, is clear distinction of the standard of evidence for proof of offences punishable as Hadd and of an offence punishable as of tazir and the combined effect of above provisions of law is that the evidence to prove an offence punishable as Hadd, must be in terms of Injunctions of Islam and for an offence punishable as Tazir, proof can be in either form provided in Article 17 of Qanun-e-Shahadat Order 1984. Islam emphasizes that Muslims must speak truth and abstain from telling lie which is a sin. Allah Almighty in His Command Says in Holy Qur'an "O believers! Stand steadfast with justice as a witness for Allah even if it is against you or against your parents or nearer, even if he is rich or poor, Allah is more nearer than all those both. (4/35)". The Holy Prophet said "Tell truth even if it goes against you". The concept of English Law that an accused is not bound to speak truth, appears to be in conflict with the concept of truth in Islam that a person must speak truth and must not tell a lie. Therefore, according to the rule of evidence in Islamic Law a confession made by an accused before the Court is presumed to be based on truth and the principle of English Law that a retracted judicial confession if found confidence-inspiring can be made basis of conviction, is based on the rule of evidence of Islamic Law that a judicial confession if is not retracted by the maker, is sufficient evidence for punishment of an offence as Hadd and if a person after making a confession of his guilt before a competent Court, retracts from his confession at any subsequent stage, the punishment of Hadd on the basis of such confession cannot be enforced but it is a valid and legal evidence to sustain conviction of a person for such an offence as Tazir. In the light of this rule the subsequent retraction of judicial confession by an accused would neither reduce its value nor affect the truthfulness and admissibility of confession as evidence and consequently, a judicial confession recorded on oath despite being not legal under Oaths Act, 1873, if contained true statement of facts, may be admissible in evidence subject to the test of it being true and voluntary and can validly be used as an evidence in Hudood cases punishable as Tazir. We therefore, without going into the question regarding the enactment of section 5 of Oaths Act, 1873, on the touchstone of Injunctions of Islam or not, concentrate to the question relating to the admissibility of a confession which was recorded on oath. The rule of evidence of Islamic Law, envisages that the real test to believe or disbelieve a confessional statement is not the method in which the confession is recorded rather it is to be seen that what is stated in the confessional statement is true and the confession was made voluntarily. However, there is difference of opinion of Imam Abu Hanifa with Abu Yousaf and Imam Muhammad on the subject. According to Imam Abu Hanifa giving of oath to an accused as Hadd except in a case of theft, is not valid whereas Imam Abu Yousaf and Imam Muhammad held giving of oath is valid in all matters except in Tian. (Al-Jami-ul-Saghir by Imam Muhammad Bin Hassan Al-Sheebani Kitabul Qada P 318). The recording of judicial confession on oath is certainly prohibited under Oaths Act, 1873 and a Magistrate if recorded the statement of an accused in the manner which is prohibited under the law, may have committed an illegality in exercise of jurisdiction but if the confessional statement contained true statement of facts, it may not lose the status of legal evidence merely because of adopting of the procedure for recording the confession by the Magistrate which is prohibited under the law unless it is shown that the accused was misled and injustice was caused to him by adopting such procedure, therefore, such procedural illegality would 'assume the character of an irregularity which may not render the confession inadmissible. The object of procedure for conducting criminal proceedings is to enable the Court to ensure the fair trial and to do the justice and if' in a particular case, despite departure to the rule of procedure, justice was done and order was found just and proper which caused no prejudice and injustice to the accused, there would be no necessity to undo it and set it aside for the mere reason that a wrong procedure was adopted. The perusal of confessional statement of appellant, would show that the Magistrate either due to lack of sufficient experience or by mistake recorded the confessional statement of the appellant on oath but adhered to the strict compliance of all necessary formalities required under the law for recording the confession. Therefore, the mere defect of recording such statement on oath and bare denial of his statement under section 342, Cr.P.C. that confession was not voluntary, without raising specific objection that he was not prepared to make the confessional statement on oath or he would not like to confess his guilt if his statement would not have been recorded on oath, would not make it inadmissible. There is no cavil to the rule of criminal administration of justice that an accused cannot be compelled to make a confession on oath or without oath but in the light of concept of truth in Islam if an accused Muslim by faith, wants to make a confessional statement, he must speak truth and disclose the true facts and notwithstanding the procedural violation of recording the confessional statement on oath, the Court if finds that confession is true and voluntary and is satisfied that by such a procedural defect no prejudice was caused to the accused and there was also no failure of justice, may on the basis of such retracted judicial confession, convict an accused. It was held by this Court in Anwara Chowdhury v. M. Majid (PLD 1964 SC 813), that "Retracted confessions, whether judicial or extra-judicial, could legally be taken into consideration .against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration".

12. In the present case the Magistrate who recorded the statement of the appellant had informed him that he was not bound to make statement and if he would make such a statement it can be used against him as an evidence, and was also informed him that after recording the statement, he wou1 be sent to the judicial lock-up. The appellant despite having been told that he was under no compulsion to make the confession was volunteered to make such a statement and the Magistrate, after putting all necessary questions to the appellant in the prescribed manner and completing necessary formalities of law ascertained his willingness and recorded his statement. The fact that the appellant was produced before the Magistrate within 24 hours of his arrest and the Magistrate after recording his statement, sent him to jail, would sufficiently show that the confession was free of inducement, outside influence or pressure and was true and voluntary. Therefore, in the given facts, the recording of confessional statement on oath would be only a procedural mistake which is merely an irregularity. In a murder case, an accused can be awarded sentence of death under section 302(a), P.P.C. as Qisas on the basis of judicial confession if it is not subsequently retracted and in a case in which the judicial confession is retracted if the same is found true, voluntary and confidence-inspiring, can be considered sufficient evidence for conviction and sentence fora murder as Tazir and since the appellant retracted the confession, therefore, he was awarded sentence of death under section 302(h), P.P.C. as Tazir. In the light of above rule of evidence in Islam, it is found that the principle of English law that an accused while appearing before the Court is not bound. to speak truth, is not in consonance with the concept of criminal administration of justice in Islam according to which a Muslim whether an accused or a witness, must speak truth and must not tell a lie in his statement recorded by a judicial officer on oath or without oath and we hold that a person facing the charge of an offence under Hudood Laws if confesses his guilt before a Magistrate and his confessional statement even if is recorded on oath, can be used as a legal evidence, subject to the test of its being true and voluntary.

13. The scrutiny of evidence would reveal that appellant after committing Zina bil Jabr with the deceased girl caused her death by strangulation and on arrest when he was produced before a Magistrate, he confessed his guilt. The making of confession by the appellant soon after the arrest, would strongly suggest that the confession was free and voluntary and was not obtained through inducement or coercion and consequently, the analysis of the judicial confession of the appellant in the light of medical evidence, would lead to an irresistible conclusion that no other person, except the appellant was responsible for the murder of deceased and we take no exception to the concurrent finding of the trial Court and the appellant Court vis-a-vis the guilt of the appellant.

14. However, the question relating to the quantum of sentence would need consideration. The appellant pleaded that he was minor at the time of occurrence and in proof thereof, placed on record his school leaving certificate according to which he was of the age of less than 14 years at the time of occurrence whereas the doctor who medically examined him for the purpose of his potency test, observed that he was about the age of, 17 years. The appellant examined Rab Nawaz a senior teacher of Government Primary School Shah Alam Khel in his defence who produced original register relating to the admissions of students in the school and according to the entries in this register, the appellant was admitted in the school on 10-9-1991 and his date of birth mentioned therein was 10-12-1985. The witness stated that the certificate was genuinely prepared on the basis of entries in the register and that the minimum age for admission in school is five years but some times, boys from villages at the time of admission are older in age. Be that as it may, the prosecution has not challenged the genuineness of the school leaving certificate or the correctness of the entries contained in the register with which the presumption of truth would be attached and this presumption, in absence of any evidence to the contrary, remained unrebutted. There is no cavil to the proposition that for the purpose of determination of age, the birth certificate is considered an authentic evidence and more reliable as compared to the school leaving certificate but the prosecution has not brought on record any evidence in rebuttal challenging the correctness of the date of birth of appellant given in his school certificate and the learned trial Judge on the basis of oral assertion of prosecution that appellant was major at the time of occurrence, raised presumption that appellant was adult and disbelieved the school leaving certificate on the ground that it was not a substantive evidence to determine the age. The trial Court also did not give any credence to the opinion of doctor and further the appellate Court has not properly attended the matter. It is provided in section 7 of the Juvenile Justice System Ordinance, 2000 that for determination of age, medical report regarding the age can also be considered and we in the light of the school leaving certificate of the appellant and the medical evidence, according to which he was less than 18 years at the time of commission of offence, have no hesitation to hold that at the relevant time, he was a juvenile.

15. Under section 2 of Juvenile Justice System Ordinance, 2000 `child' has been defined a person who at the time of commission of offence has not attained the age of 18 years and under section 12 of the said Ordinance, a person under the age of 18 years at the time of commission of an offence, cannot be awarded punishment of death'. The occurrence in the present case, had taken place before the enactment of Juvenile Justice System Ordinance, 2000 and appellant was convicted and sentenced before the commencement of the Ordinance and it having no retrospective effect, would not be applicable to the case of appellant. However, we have been informed that the President of Pakistan, in exercise of his powers under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973 vide order dated 13-12-2001, commuted the death sentence of condemned prisoners into life imprisonment, in the eases decided prior to the enforcement of Juvenile Justice System Ordinance, 2000. The Presidential Order is read as under: "The death sentence of those condemned prisoners who were Juvenile as defined in the Juvenile Justice System Ordinance, 2000 at the time of commission of offence stands converted to life imprisonment provided that the death sentence has been awarded under Tazir and not Qisas or under other Hudood Laws."

16. The appellant was sentenced to death under section 302(b), P.P.C. as Tazir and in view of our finding that at the time of commission of offence, he was juvenile, would get the benefit of the Presidential Order dated 13-12-2001 and consequently, the sentence of death awarded to him under section 302(b), P.P.C. would be converted into life imprisonment. We find that fine of Rs.10,000 imposed upon the appellant by the trial Court under section 201, P.P.C. was directed to be paid as compensation to the legal heirs of the deceased and no separate compensation was awarded under section 544-A, Cr.P.C. The Federal Shariat Court, in appeal, set aside the sentence under section 201, P.P.C. but did not consider the 'question relating to the payment of compensation under section 544-A, Cr.P.C. We, therefore, after issuing notice to the appellant, through his counsel, direct him to pay rupees one lac as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default of payment, the appellant shall suffer S.I. for six months and compensation shall be recoverable as arrears of land revenue. The sentence of the appellant under section 10(3) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and under section 302(b), P.P.C. shall run concurrently with benefit of section 382-B, Cr.P.C.

17. With the above modification in the judgment of Federal Shariat Court and the sentence of appellant under section 302(b), P.P.C. in terms of Presidential Order dated 13-12-2001, this appeal is dismissed. M.H./N-24/S Order accordingly.