P L D 1952 Lahore 345 (PLP)

MUHAMMAD MUNIR, C J. This is an appeal from, and a reference for confirmation of, a death sentence. The appellant is Nawab Din who stated himself to be 80 but appeared to the committing Magistrate to be 65 and to the trial judge 60 years old. He has been found guilty by the Additional Sessions Judge, Lahore, of having murdered Abdul Rahim. Abdur Rahim deceased was the son of the brother of the appellant's wife. The alleged murderer and the victim of his crime both originally belonged to Bhowan Wadala, a village in the district of Amritsar. On partition they migrated to Lahore where they were residing together in a house and working as cobblers in Katra Devidas in Mohalla Misri Shah. On the night of 5th‑6th June 1951, which was a moonless night, they were sleeping on the roof of their house on two different charpoys. The deceased's wife Mst, Aimna Bibi was sleeping on another charphoy near her husband. On the same roof was also sleeping a guest while on the adjoining roofs slept some other persons including Abdullah, a brother of the deceased and some members of Abdullah's family. At 1‑30 in the morning the deceased awoke with a shriek saying that he had been stabbed. Mst. Aimna Bibi also woke up and found that her husband had been wounded in the abdomen with a knife. The appellant who was awake or had woken up at that time said that some one had knocked against his charpoy and jumped from the roof into the street. Several months before the incident the deceased had beaten a gambler boy and some days afterwards had found a threatening letter affixed to the chain of his door. This letter had been preserved by Mst. Amina Bibi. As Abdul Rahim's assailant had not been seen by any one, the appellant said that Abdul Rahim might have been stabbed by the person who had written that letter. The deceased was taken to Police Station Misri Shah where a report of the incident was lodged by the appellant himself at 2‑15 a.m. In that report the appellant mentioned the incident of the slaping of the gambler boy by Abdul Rahim and stated that Abdul Rahim had otherwise no enmity with anyone. A blood‑stained knife which was found lying under Abdul Rahim's charpoy and the aforesaid letter which the appellant took from Mst. Amina Bibi were produced by the appellant at the time of the making of the first informa tion report. The letter ran as under:‑ "Brother Abdul Rahim Mochi. This is to inform you that you beat our boy. What harm had he done to you? This boy is ill since the time you beat him you have not expressed any sympathy. We tell you that you beat the boy at the instance of your wife. You will also lie on the charpoy one day. Brother, this is Lahore." On the morning following the incident another letter was found lying on the roof on which Abdul Rahim had been stabbed. This was in the following terms:‑ "I am the same man whose son was beaten by Abdul Rahim. The boy died of the beating two months ago. As a result of the complaint made by the deceased's wife I have become grief‑stricken and fakir. But this is like the echo from a well. As you sow, so shall you reap. Mian Abdullah and Bare Mian, only he feels whose son ' goes to the grave. That woman will get many other men . Abdul Rahim was admitted into the hospital but could not recover from the injury and died the same day. It is the prosecution case that this more than sixty years old appellant had become enamoured of the deceased's wife and used to indulge in pleasantries with her. About a month before the incident Abdul Rahim had gone to Lyallpur where 'he had complained of the appellant's misconduct to his brother Jamal Din and only three days before the incident the deceased had seen the appellant embracing Mst. Amina Bibi. The news of the attack on Abdul Rahim was communicated to Jamal Din by telegram but as he was ill, he could not immediately leave Lyallpur and came to Lahore a week afterwards. After receiving the details of the incident he mentioned to ‑Abdullah what the deceased had told him .at Lyallpur and suspected the appellant to be the murderer of Abdul Rahim: This suspicion was ‑conveyed to one Chaudhri Siraj Din who sent for the appellant and it is alleged that the appellant made a confession to the Chaudhri. Thus the evidence against the appellant is:‑ (1) the extra judicial confession made by him to Chaudhi Siraj Din ; (2) the evidence of motive and opportunity ; (3) that the knife which was found lying under the charpoy and which was subsequently discovered to be stained with human blood was the appellant's property ; and (4) that the two cryptic letters mentioned above were written by the appellant. The knife is identified to be that of the appellant by Mst. Amina Bibi and Abdullah but they both admit that though they had seen this knife when it was produced at the police station at the time the first information report was‑made, they did not suspect it to be the appellant's knife which they had previously seen on several occasions. Their evidence regarding identifica tion of the knife is, therefore, valueless. The writing of `the two letters is identified by Abdullab and Muhammad ‑Sharif but neither of them identified it before the committing Magistrate. If Abdullah was acquainted with the appellant's handwriting, he should have identified both the letters when he saw them with the police. No reliance can, therefore, be placed on the evidence of these two witnesses regarding the identity of the writer of these letters. The expert evidence about these letters being in the handwriting of the appellant is equally unsatis factory. In the course of investigation a specimen was taken of the handwriting of the appellant and compared by the expert with the letters. The expert has given four reasons for his view, that the letters were written by the person who also wrote the specimen writing. We have checked these reasons by reference to the four documents and their enlarged photo graph and consider them to be too meagre and inconclusive to form the conclusion that they were all written by the appellant. This piece of circumstantial evidence also must, therefore, be ignored. We are then left with the evidence of the confession and that of motive and opportunity. But no man can be convicted merely because he had a motive and the opportunity to com mit the offence charged inasmuch as both these circumstances may be common to several other persons and not be confined to the accused alone. The main factor, therefore, which must determine the fate of this case is the confession which is alleged to have been made by the appellant to Chowdhri Siraj Din and repeated before Jamal Din and Abdullah on 14th June. As to this part of the case the main contention of Mr. Nasim Hasan Shah, who has argued this case with great zeal and comendable ability, is that we need not go into the evidence in proof of the confession because even if the confes sion be held to have been made by the appellant, the conviction, in the absence of corroboration of the confession in material particulars form independent sources, would still be unsus tainable in law. This argument is sought to be supported by a recent judgment of the Federal Court in Criminal Appeal No. 8 of 1951, Abdul Latif v. Crown (P L D 1952 F C 113), delivered on 2nd April 1952. In that case the only evidence against the appellant was an extra‑judicial confession made by him to a Lambardar. In the absence of corroboration all the three judges agreed in allowing the appeal. Dealing with the necessity of corroborative evidence in such cases, Akram J., who delivered a separate judgment remarked:‑ "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 confession 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,:" Cornelius J., on the other hand, put the need for corroboration on a much higher plane, and observed:‑ "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". Abdul Rashid, C. J., after reading the judgments of both the" Judges appended a short note saying:‑ "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." Since the learned Chief Justice agreed only with the reasoning of Cornelius, J. and said nothing about the view taken by Akram, J., Mr. Nasim Hasan Shah has contended that the effect of the Federal Court judgment is the enunciation of a rule, which has the force of law, that where the only evidence against a person is an extra‑judicial confession, conviction becomes an impossibility in law, and that a Court can receive in evidence and act upon such confession only if independent evidence in corroboration of it in material particulars is forthcoming. Before it is recognized that this is the effect of the Federal Court judgment, it is necessary to approach the question as if the matter were res integra and then consider whether the learned Chief Justice and Cornelius, J. intended to lay down the rule which Mr. Nasim Hasan Shah contends they did. In a criminal case, the Prosecutor must prove and the Court must find all those facts which constitute the ingre dients of the offence charged. These facts, which may be called facts in issue, may either be proved by direct evidence, namely, by evidence that directly relates to them or by proof of relevant facts from which the existence of those facts may be inferred. A fact is said to be proved when after consi dering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man, under the circumstances of the particular case, ought to act upon the supposition that it exists. Thus, whether the fact to which the evidence relates be a fact in issue or a relevant fact, the Court can treat it as proved if on the data before it the Court believes it to exist or applying the standard of a prudent man considers its existence so probable that under the circumstances of the particular case it ought to act upon the assumption that it exists. Relevant facts are defined in sections 6 to 55 of the Evi dence Act. Section 17 defines an admission as a statement, oral or documentary, which suggests an inference as to any fact in issue or relevant fact and which is made by any of the persons and under the circumstances mentioned in sections 18 to

20. Section 21 then declares that admissions are relevant and may be proved as against the person who makes them. Sections 24 to 30 are concerned with confessions and define the circumstances in which they may or may not be proved against an accused person. The word "confession" is not defined anywhere in the Evidence Act but it is clear from the arrangement of this set of sections of the Act that confessions were included under the generic term "admissions" which figures as the heading of these sections. None of these sections defines the weight that may be attached to an admission or a confession by the Court before which it is proved. All that the Evidence Act states on the subject is that admissions are relevant but are not conclusive proof of the matters admitted, unless they operate as estoppels. It has, however, been repeatedly held, and for good reasons, that admissions are to be presumed to be true unless they ate proved to be wrong. In criminal cases, however, this rule is not so freely applied as in civil cases, the reason being that in view of the consequences to society of a wrong conviction and on grounds of public policy the prudent man of section 3 requires a higher degree of proof in the former class of cases. A confession is not at all relevant against an accused per son if it is made in the circumstances mentioned in sections 24 to

26. But if none of these sections being applicable a confes sion becomes relevant, the use to be made of it would depend upon the circumstances of each case and no absolute rule has ever been or can be laid down governing its evidentiary value in the case in which it is proved. A confession may be a judicial confession or an extra‑judicial confession. The former is made before a Magistrate or in Court and has to be recorded by the Magistrate before whom it is made, if the Magistrate be competent to record it, in accordance with certain formalities prescribed by sections 164 and 364 of the Code of Criminal Procedure, the former section expressly providing that the recording Magistrate is to warn the confessing prisoner that he is under no obligation to make a confession and that if he does make one, it may be used as evidence against him. An extra ‑judicial confession is. one which is not made before a Magistrate or in Court but is made to some other person. It may be oral or it may be reduced to writing either by the person to whom it is made or by the person making it. The Evidence Act does not draw any distinction between a judicial and an extra‑judicial confession so far as their evidentiary value is concerned. The only rule that is deducible from the Act is that a confession is merely a relevant fact and one of the matters to be considered by the Court under section 3 in coming to a finding whether the facts in issue which are the ingredients of the offence charged are or are not proved by it. It follows, therefore, that if a confession contains an admission of all the facts in issue, which are the ingredients of the offence charged, and there is no other evidence in the case, there is nothing in law to prevent a Court from holding the offence charged to be proved provided that the confession produces the state of belief which is con templated by section 3 in defining tire word "proved" Accord ingly it has consistently been held by almost all the High Courts to be the rule that where a confession is not vitiated by any of the circumstances mentioned in sections 24 to 26 and is thus a relevant fact, a conviction may be based on it provided the Court that is called upon to consider the confession believes it to be true. (For representative cases from each Court see (Allahabad) Manohar Singh v. E., A I R 1946 All. 15 ; Khuban v. E., A I R 1930 All. 29 ; E. v. Kehri I L R 29 All. 434 ; Q. E. v. Maiku Lal I L R 20 All. 133 ; (Bombay) Bhimappa v. E., A I R 1945 Bom. 484 ; Housabai Bala Shinde v. E., I L R 56 Bom. 542 ; Q. E. v. Gangia I L R 23 Bom. 316 ; Q. E. v. Gharya I L R 19 Bom. 728 ; (Calcutta) E. v. Kutub Bux I L R 57 Cal. 428 ; E. v. Balai Ghosh A I R 1930 Cal 141; (Lahore) Partap Singh v. E., I L R 6 Lah. 415 ; Sharif v. E. A I R 1944 Lah. 472 ; Nanhun v. E., A I R 1934 Lah. 715 ; Martin v. E., A I R 1934 Lah. 89 ; Rahman v. E., A I R 1930 Lah. 88 ; Majhe v. E., A I R 1927 Lah. 682 ; (Madras) In re: Rajgopal A I R 1944 Mad. 117; In re. Syama Maha Patro I L R 55 Mad. 903 ; Q. E. v. Raman I L R 21 Mad. 83; Kesava Pillai v. E., A I R 1929 Mad. 837 ; (Patna) Dikson Mali v. E., A I R 1942 Pat 90 ; Suker Dasudh v. E., A I R 1941 Pat. 303 ; Bhagwan Das Bhagat v. E,, A I R 1930 Pat. 289 ; Bihari Adraki v. E., A I R 1922 Pat. 492 ; (Oudh) Ram Singh v. E., A I R 1943 Oudh 269 ; Mahipat Singh v. E., A I R 1927 Oudh 597 ; E. v. Rajkali, I I, R 1 Luck. 577 ; Nankey v. E ; A I R 1931 Oudh 412 ; (Rangoon) Nga Po Kauk v. E., I L R 4 Rang. 45 ; (Sind) Sanwaldas Kundandas v. E., A I R 1929 Sind

253. When the relevancy of a confession has, been established, the use to be made of it is not a matter of law but of prudence Raggha v. E., A I R 1925 All. 627 ; Mahmud v. E., 81 I C 62 ; Bhaddu v. E., 46 I C 1005 ; E. v. Lalit Mohan Chuckerbutty I L R 38 Cal. 559; Q. E. v. Gharya I L R 19 Born. 728 ; E. v. Bhagwandas Bisesar A I R 1941 Born. 50 and depends on the circumstances of each case Nanhey v. E., A I R 1931 Oudh 412 ; Sheikh Shafi v. E., A I R 1930 Nag. 259 ; Mohar Singh v. E., 96 I C 647 ; Partap Singh v. E., I L R 6 Lah. 415 ; Moti Ram v. E., 75 I C 152 ; Q. E. v. Maiku Lal I L R 20 All.

133. Thus it is an unquestionable proposition of law that if a' Court believes a confession, judicial or extra‑judicial, retracted or not retracted, to be voluntary and true, it can convict the accused on its sole basis. At the same time for reasons pre sently to be explained Courts have always treated extra‑judicial confessions as suspicious evidence and have emphasized the necessity of great care and caution in acting upon them in the absence of corroborative evidence. But during the last 100 years or so that the statutes of evidence have been in force in this sub‑continent it has never been ruled that a conviction based on an extra‑judicial confession is an illegality or that the rule requiring corroboration of such a confession has the force of law. Varying and apparently conflicting opinions on the value of confessions have been expressed in England as well as in the United States but the matter has never been treated 'as one of law. Thus, Blackstone (Commentaries, IV 357) condemns con fessions as the weakest and most suspicious of testimonies and in this he has the support of the great judge Sir Michael Foster. (Foster, High Treason, C. III section 8). At the same time judges and writers of great authority have in equally positive and unqualified language extolled confessions as the highest kind of evidence. Thus Gross, J., in Lambe's Case, 2 Leach, 3rd edition 629, considers confessions to be the highest and most satisfactory proof of guilt and Sir William Scott in 2 Hagg. Cons. 315 put this species of evidence as "highest in the scale of evi dence". To a similar effect is the opinion of Starkie who thinks confessions to be "the surest proof of guilt" (Evidence 1, 52) and of Swift (Evidence, 133) who considers them as "the most con clusive evidence." Of course, these words of condemnation or approval have been used from time to tune with reference to the facts of the case which provoked such remarks; but by constant use and repetition they have acquired a generality which has often been misunderstood, The true reason for this appa rent conflict of opinion is that when Judges condemn or disap prove confessions, they generally refer to the evidence by which they are sought to be proved. But once the making of a confes sion is proved beyond question and all hypotheses of improper inducement, threat and promise negatived, judges have generally considered it to be the most effectual proof known to the law. Therefore, Courts which are required to deal with a confession must always bear in mind the position that so far as the proof of the making of a confession is concerned, they must look at the evidence with extreme suspicion and exercise great care and caution in accepting it because such evidence often comes from ,‑interested sources. As Wigmore says: "Paid informers, treache rous associates, angry victims and over‑zealous officers of the law ‑these are the persons through whom an alleged confession is often presented. Taylor refers to the same subject when he says that oral confessions of guilt ought to be received with great caution because not only does considerable danger of mistake arise from the misapprehension or malice of witnesses, the misuse of words, the failure of the party to express his own meaning and the infirmity of memory but the zeal which generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition which is often displayed by persons engaged in pursuit of evidence to magnify slight grounds of suspicion into sufficient proof, together with the character of the witnesses who are sometimes necessarily called in cases of secret and atrocious crime, tend to impair this kind of evidence. (Taylor, section 862). But where the making of the confessions is proved as a fact beyond all doubt and it is clear that it was not made under any improper inducement or fear and was the voluntary outpouring of a penitent prisoner, it is considered to carry a pursuasion which no other species of evidence does because it is opposed to a fundamental instinct of human nature to make a false admission of crime and thus to risk life, liberty and property. Wigmore, in his great work on Evidence, touches the kernal of the subject when he says : "It is precisely because the confession, if a fact, is so weighty and produces such a close approach to complete pursuasion, that we are inclined to hesitate and demand the most satisfactory testimony before we accept that as a fact which, if believed, will practically render other evi dence superfluous". (section 866). Archbold on the authority of several English cases states at page 377 of his Criminal Pleadings, Evidence and Practice, 31st edition, that a free and voluntary confession of guilt by a prisoner, whether under. examination before a Magistrate or otherwise, if it is direct and positive, and is duly made and satisfactorily proved, is sufficient to warrant a conviction without any corroborative evidence, and Phipson, basing his statement of the rule on several other cases not noticed by Archbold, and on the authority of Best, Russel and Roscoe, says that a confession duly made' and satisfactorily proved is, in general, sufficient to warrant a conviction without corrobora tion. (Phipson on Evidence, 7th edition, 256). The only exception to this rule is a trial for homicide where proof of corpus delicti has generally been insisted upon and this too not a matter of law but as a rule of prudence. According to Taylor (section 865) voluntary confessions of guilt made by a prisoner to any person, at any time, and in any place, are at common law receivable in evidence while the degree. of credit due to them must be estimated by the jury according to the particular circumstances of each case. It will thus appear that so far as English Law and the provisions of the Indian Evidence Act are concerned, there is no legal impediment to convicting a man on his own confession the making of which he denies at the trial but is proved by satisfactory evidence. And as already pointed out, there is a long line of decisions which has repeatedly affirmed the position that the use to be made of a properly proved confession even if denied or not adhered to at the trial is not a matter of law but of prudence. In several other cases it has actually been held that evidence of admission of guilt to villagers may be sufficient to justify the conviction of a person accused of murder though the evidence that‑such confession was made must be scrutinised as closely as all other evidence which is used to prove a case of murder (Taule v. E., A I R 1929 Cal. 272 ; see also E. v. Badal A I R 1928 Oudh 393 ; Sheo Ratan v. E. A I R 1929 Oudh 167; Q. v. Jhurree 7 W R (Cr.) 41), In another case it was remarked that conviction may be based on a confession made to a respectable person provided the con fession was voluntary and made when the ; accused was not in police custody. Shoe Balak v. E., 99 I C 232 see also Muhammad Bakhsh v. E., A I R 1941 Sind 129). The need of special caution in acting upon such confessions and a strict scrutiny of the evidence by which the making of such confessions is sought to be proved has, however, been consistently emphasised and it was probably for this reason that in the Federal Court judgment relied on by Mr. Nasim Hasan Shah, Akram J. con tented himself by saying that though an extra‑judicial confes sion 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. On the basis of this apparent difference of opinion it is argued by the learned counsel for the appellant that there must be some real distinction between these two views and that if that be so, we must follow. the opinion of Abdul Rashid C. J. and Cornelius J. and acquit the appellant on the ground that as there is no corroboration of the confession on material particulars by independent evidence, the conviction is illegal and that a rule having the force of law will be violated if we received the con fession in evidence or believed it to be true and acted upon it. I do not think that the majority in Abdul Latif's case intended to lay down a rule different from the existing practice or fundamentally different from that stated by Akram J. 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. If the rule requiring ‑corroboration be treated, as contended by Mr. Nasim Hasan Shah, as having the force ‑of law, the conviction of a man on extra‑judicial confession, to whomsoever and in whatsoever circumstances, made, will, have to be treated as illegal even though the judge, after con sidering the circumstances before him, may believe in the existence of the‑facts stated in the confession or feel it safe to act upon the supposition that those facts existed. Further, where besides the proof of corpus delicti there is no corrobora tion of an extra‑judicial confession, a committing Magistrate will have no authority to commit a case to the Court of Session and where such commitment is made, it shall have to be set aside as illegal. And in cases tried with the aid of jury, it will be the duty of the Judge to direct the jury to acquit and the jury will not be competent to find a prisoner guilty solely on the basis of his confession. Further, the recognition of any such rule will encourage the making of false confessions and induce the police to manufacture evidence of corroboration on material particulars. I do not think these results were contemplated by the learned judges in Abdul Latif's case and I take the judgment of the majority in that case to be merely an another way of emphasising the care and caution with which extra‑Judicial confessions have to be received and the need for looking for some corroborative evidence. There may be several cases where a Court may believe an extra‑judicial confession to be true and act upon it. In fact if the proof of a confession produces in the mind of a Court before which it .is proved the belief that is mentioned in section 3 of the Evidence Act, it would be its duty to convict and such conviction would involve no error of law. Cases are easily conceivable where an oral confession may safely be acted upon even in the absence of corroborative evidence. If, for instance, a completely disinterested witness of high respectability were to depose before a Court that at midnight a servant of his woke him up saying that on his unexpectedly returning to his house that night from a place where he had gone on some business he found his wife flagrante delicto with a man arid that on seeing this he stabbed both of them with a knife which he had on his person and that on going to the servant's quarters the witness discovered the wife and the man lying dead with stab wounds and a bloody knife lying by, there is no reason why the Court should not consider the confession proved and on its proof and, in the absence of any indication in the evidence that the confession might have been made to shield somebody else, sufficient evidence of the servant's guilt. Several other cases may be imagined where a Court may feel perfectly safe in acting upon a confession proved to have been made voluntarily. The decision in Abdul Latif's case therefore should not be taken as laying down the rule that where there is no evidence in corroboration of a confession, the Court is not competent to convict. I should, however, not be understood as directing that whenever a confession is proved and the Court believes it to be voluntary, corroboration or no corroboration, the Court must convict. Cases are on record where a confession was wholly voluntary and yet it turned out to be false. Joy at page 107 of his work on "Confession" mentions the case of an innocent man making a false confession; in order to fix suspicion on himself alone, so that his guilty brothers might have time to escape. The strategem was complete successful and afterwards the man proved for himself an alibi in the most satisfactory manner. Hubere falsely confessed that he set fire to London in 1666 and his confession cost him his life (6 How, St. Tr. 807‑809, 819‑821). Taylor mentions in the footnote to section 863 the remarkable case of two brothers, Boorns by name, who were convicted on their own confession of the murder of their brother‑in‑law Russel Colvin alleged to have been committed seven years earlier but before the sentence was carried out the missing men returned home from New Jersey to which place he had fled in fear of his brother‑in‑law. In Perry's case (14 How. St: Tr. 1312), one of two brothers confessed that he, his brother and his mother, had murdered his master. They were executed but two years afterwards the master returned home and explained that he had been kidnapped and sold to the Turks. Cases of this sort, however, are of the rarest occurrence and cannot be made the basis of a general argument against the receivability or value of confessions. The true rule is that a confession is neither more nor less than a relevant fact and that it is for the Court or the jury to determine its value in each particular case. This species of evidence has always been and must remain a con tinuous headache for the judges in this country. When the prosecution proves a confession and the Court finds it to be voluntary, the factors determining its value have to be ascertained by the Court attempting to seek in the evidence replies, inter alia, to the following questions :‑

1. To whom and under what circumstances was the confession made?

2. Was there any motive of hope or fear, as distinguished from an inducement, threat or promise held out by a person in authority which would completely exclude the confession, operating on the mind of the prisoner?

3. How is it that the prisoner having made the confession denies it at the trial?

4. Is there any indication in the evidence of any relation or friend of the prisoner for whose sake he might be willing to sacrifice his life and liberty?

5. Does the statement of the prisoner amount to a confession of the precise offence charged or is it an admis sion of lessor offence, by making which the prisoner expected to get some advantage? Having considered all these circumstances carefully if the Court still believes that the confession was true, there is no rule of law which prevent the Court from acting upon it. 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 requiring 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. In the former the danger arises from the possibility that the accomplice may accuse someone else falsely whereas in the latter the danger is that the confessor may falsely implicate himself. While the first possibility exists in the case of every accomplice, the second occurs in extremely rare cases. Even in the case of an accomplice the evidence has to go to the jury with a caution by the judge as to the danger of convicting a prisoner on the uncorroborated testimony of an accomplice. The judge may in his discretion also advice the jury not to convict upon such evidence. But it is equally the duty of the Judge to ‑ point out to the jury that it is within their legal province to convict upon such unconfirmed evidence if they believe it to be true. It is this rule which directs how the evidence of an accomplice is to be presented to the jury, that has become virtually equivalent to a rule of law in England. As applicable to this country the rule was stated by Sir John Beamount in Bhabuna Sawhu v. The Crown A I R 1949 P C 257 to be that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice, it is a rule of prudence, so universally followed as to amount almost to a rule of law, that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused. The language used by the majority in Abdul Latif's case has never been used either here or in England with reference 'to the extra‑judicial confession of a prisoner. On the contrary it has been expressly recognised in a large number of decisions that a conviction based on an uncorroborated confession is perfectly legal. I do not think the learned judges of the Federal Court intended to take a different view and to lay down the rule that a conviction which merely proceeds on the uncorroborated confession of a prisoner is illegal or that no Court should convict anyone on a confession unless it is corroborated in material particulars. I cannot, therefore, accept Mr. Nasim Hassan Shah's argument and set aside this conviction merely because there is no corroboration of the confession. This being the position, I now turn to the evidence that was tendered by the prosecution in proof of the appellant's confession. As already pointed out, it is when considering the evidence in proof of a confession that the Court has to be particularly careful and to subject such evidence to the closest scrutiny as ordinarily such evidence proceeds from a tainted or interested source. The evidence in proof of the confession in the present case has, therefore, to be approached in the light of this principle. The three persons who were produced by the prosecution to prove the appellant's confession are Siraj Din P. W. 7; Abdullah P. W. 5, and Jamal Din P. W.

6. It is true that the last two are related to the appellant but it is clear that Jamal Din was the fist to come out with the theory that the appellant was the murderer of Abdul Rahim, and with that conviction he would neither hesitate to give evidence himself nor have any scruples in procuring other evidence to get the appellant punished. Abdullah is a brother of Jamal Din and it is clear that he has fallen in with Jamal Din's theory in identifying the knife and the handwriting on the two letters mentioned above, which facts he was not in a position to depose to before the arrival of Jamal Din. We are then left with Siraj Din who is a Chaudhri of the Mohalla, owns no house, pays no income- tax and is proved to be no more than a tongawala who could be easily persuaded to give false evidence. Further, the fact that the appellant made a confession is inconsistent with the other allegation by the prosecution that before the murder was committed the appellant had created documentary evidence in order to put the police and the relations of the murdered man off the scent. I cannot, therefore, safely accept this evidence as proof of the confession. The result is that I would accept this appeal, set aside the conviction and sentence of the appellant and acquit him. KAYANI, J.‑The argument raised on the decision of the Federal Court in Abdul Latif v. Crown (Cr. A. No. 8 of 1951) is so startling and so vitally affects the administration of justice that I am very anxious to add an explanation of my own. The argument is that what used to be a rule of prudence in demanding that retracted confessions should not be received in evidence without corroboration from independent sources and in material particulars has now become a rule of law by the aforesaid judgment of the Federal Court. It is perhaps the novelty of such arguments chief caused thereby that has more than once occasioned a warning from judicial authority "that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found." (Earl of Halsbury L. C. in Quinn v. Leathem 1901 A. C. 995), And having read the judgments of the Federal Court, I am clear that their Lordships had no such intention as has been ascribed to them. The remarks on which the argument is founded occur in the judgment of Cornelius J. and are as follows : " In these circumstances, 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 conform ably 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 is clear that by the use of the words "proved circum stances" and "the circumstances of this case", His Lordship is confining his observation to the facts of that particular case and that there is no intention to make a general declara tion of law as to the value of any particular retracted confes sion, with which the Courts should always deal according to its own particular facts.' The question was not, as His Lordship pointed out, what "evidentiary value" the confession possessed, but whether it could be "properly" received in evidence. The Federal Court has more than once pointed out that where it does not find a legal ground for interference, it would not interfere unless non‑interference would lead to a violation of the principles of natural justice. It would not, therefore, be far wrong to assume that the word "properly" in this context has reference to the principles aforesaid. But in any case, the argument that the word "properly" is equivalent to "legally" has no sound basis. "But", it was argued by the learned counsel, "His Lordship has clearly said that this rule, which was formerly a mere rule of prudence, has now, through consistent practice, assumed the force of law." I admit that, taken out of the context, that meaning might easily be ascribed to the passage cited, but it is neither a rule of prudence nor a rule of practice to full passages out of their context, and perhaps I might be for given if I say‑merely to add emphasis‑that it has become almost a rule of law not to take passages out of their context. Never theless I do not mean that it is a rule of law. A rule of law is referable to some Code or Act, and in respect of the law relating to confessions we know the plain requirements of the Code of Criminal Procedure and the law of Evidence. When an extra‑judicial confession is sought to be admitted in evidence, the first question is whether it was actually made by the accused person, and the second question is whether it was made voluntarily and truly. Both these are questions of fact, and being once satisfied as to these two matters, the Court may not find it necessary to apply the rule of caution relating to corroboration. "An extra‑judicial confession", says Cornelius J., "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". But since the Court would not be satisfied that a confession was. made voluntarily unless circumstances existed in support of that conclusion, the finding of fact by the Court would normally embrace the circumstances which His Lord ship envisaged. In that particular case, one of the circum stances on which the trial Court relied for corroboration was the arrest of the accused on the spot. As to this, His Lord ship observed that "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." The mere presence of a relative near the dead person cannot be regard ed as pointing to any guilt, and if the Court treated that circumstance as corroboration, it was plain that the finding itself was based on an erroneous appreciation of facts. (I am respectfully of the belief that it might have made some difference to His Lordship's view it had been unambiguously brought to his notice that the accused was not merely present but was under arrest, for a relative would not be arrested so soon after the incident unless those arresting him are convinced of his guilt.) What I wish to emphasize, however, is that His Lordship was plainly of the view that in certain circumstances a confession might "carry weight as evidence by itself." There is yet another passage in the judgment which shows that there was no intention of declaring that an extra‑judicial confession must be thrown out in all circumstances. After examining certain facts, His Lordship observes: "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 question is, there fore, one of "safety", or caution, or, to use a more familiar word, prudence, and there is in the quotation a clear exception of other cases and other circumstances in which the Court might act without corroboration. Take the case of my cook who wakes me up at midnight and informs me that he has stabbed his wife because he had found the chauffeur in bed with her. I go to the cook's quarter and find his knife sticking into the deceased woman's abdomen. I go to the chauffeur's quarter and find‑ him absconding. Subsequently, in Court the cook retracts the confession. Am I, a perfectly respectable citizen according to modern lights, regarded competent by the State to dispense justice, any less trustworthy than the unscrupulous accomplice on whose evidence the Court can base a conviction under section 133 of the Evidence Act, without corroboration in material parti culars? But if what the learned counsel says is accepted as a correct interpretation of their Lordship's view, my state ment that my cook made a confession to me which had all the appearance of being genuine should be excluded as a piece of inadmissible evidence. This argument ignores their Lordship's observation that the existence of circumstances, favouring the belief that the confession was made and that it was true must be scrutinized, for if from the very outset the confession is held to be inadmissible because it was retracted, there remains no occasion for a scrutiny of the circumstances attending it. There is something to be said for the contention of the learned Assistant Advocate‑General that the following passage in the judgment of Akram J.‑ "No doubt an extra‑judicial confession 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 :" Should be regarded as succinctly expressing the view of the Court and that the passages which I have reproduced from the judgment of Cornelius J. should be regarded as amplifying that view. On the merits, I agree with my Lord the Chief Justice that the rule of prudence demands that we should not accept the confession of the appellant as genuine. A. H. Appeal accepted.