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Criminal Miscellaneous No. 2451 of 1966, decided on 24th September 1971.

S. 30‑Confession of co‑accused --No evidence, in itself, and should not be treated as such.

Under section 30 of the Evidence Act, 1872, the confession of a co‑accused can be taken into consideration against a person but there is a chain of authorities in favour of the proposition that the confession of a co‑accused in itself is no evidence and should not be treated as such.

Jahangiri Lal and others v. Emperor A I R 1935 Lah. 230 and Joygun Bibi v. The State P L D 1960 S C 313 ref.

S. 561‑A‑Quashment of proceedings‑No evidence against accused which he could be called upon to answer during enquiry, or trial‑Proceedings found to be futile, in circumstances, and hence quashed.

M. G. Cheema for Petitioners.

Nasim Ahmad Khan for A: G. for the State.

Date of hearing: 24th September 1971.

The four petitioners in this case are accused of offences under section 302/376 of the Pakistan Penal Code for committing the murder of Mst. Sultana by strangulation after committing rape on her. In the first information report, Nazra, Nasib Ali and Rehma were suspected as culprits but the investigation revealed that the four petitioners were involved in the commission of the offence.

2. The occurrence took place two days before 19th of November 1965, when the first information report was lodged with Cantonment Police Station, Sargodha, after the discovery of the dead body of Mst. Sultana from the sugarcane field of one Muhammad Yaqoob in Chak No. 107, South Branch, Tehsil and District Sargodha. .

3. The case was referred by the Commissioner of Sargodha on 28th of September 1966, to a Tribunal constituted under section 3 of the, now repealed, West Pakistan Criminal Law Amendment Act, 1963. The appeal of the acc, sod against this reference was rejected by the Government as time‑barred. The accused then filed Writ Petition No. 1582 of 1968 which was dismissed on 19th of March 1969. The file was received by the Assistant Commissioner, Sargodha, on 2nd of February 1970. No progress was made in the case and ultimately after the repeal of the West Pakistan Criminal Law Amendment Act, 1963, the case came up for hearing before a learned Magistrate, Sargodha. Saleh Muhammad accused had meanwhile joined the Army on 17th April 1971, and his presence was secured on 22nd of June 1971. On the next date which was 21st of June 1971, Saleh Muhammad absented himself and the case was adjourned to 18th of August 1971. Warrants were issued for his presence in Court on the date of hearing.

4. The case had admittedly not made any progress since its registration but we find that the delay mainly occurred due to the fact that the accused had filed a writ petition in the High Court which was finally disposed of on 19th of March 1969. We do not know the reasons for receipt of the file by the Assistant Commissioner, Sargodha, as late as 2nd of February 1970.

5. During the inspection of the spot the police had discovered some foot‑prints near the spot. Salehon and Allah Ditta had confessed before Muhammad Yaqoob and Syed Manzoor Hussain Shah (cited as P. Ws. 6 and 9 in the incomplete challan) that they had committed the murder of Mst. Sultana along with their co‑accused after raping her. A chaddar of Mst. Sultana deceased was recovered from the possession of Salehon. The foot prints of Salehon and Allah Ditta were identified in jail in an Identification parade held under the supervision of the Magistrate. The record of this parade is not on the file sent to this Court and may be traceable elsewhere, but the proceedings of the parade have been copied in the Zimnis. Shera petitioner was arrested on 29th of November 1965, and Lal Din tracker on 29th of November 1965, identified that the foot‑prints of the culprit who was wearing a gurgabi, tallied with that of Shera.

6. I do not think this is a case in which the proceedings should be quashed for delay. There is evidence of identification of foot‑prints against Shera. Allah Ditta and Salchon. The latter two persons have confessed to the commission of the crime before the witnesses named above. There is, however, no evidence circumstantial or otherwise against Iftikhar Amir petitioner who was allegedly a boy of twelve years and a student of middle class at the time of the occurrence. The additional plea taken with regard to this petitioner is that the Investigating Officer bore an ill‑will towards his family as his father's brother Ch. Sikandar Hayat Khan was a Superintendent of Police and had done something to invite hostility of the Investigating Officer when he was serving under him. This plea has not been substantiated by any citation of facts.

7. The question, however, is whether there is any possibility of Iftikhar Amir being convicted on the evidence which is in the hands of the prosecution. The only circumstance against him is that his two co‑accused Salehon and Allah Ditta have named him as their accomplice in the commission of the offence. Under section 30 of the Evidence Act, the confession of a co‑accused can be taken into consideration against a person but there is a chain of authorities in favour of the proposition that A the confession of a co‑accused in itself is no evidence and should not be treated as such. It was held by a Division Bench of the Lahore High Court in Jahangiri Lal and others v. Emperor (A I R 1935 Lah. 230), that the confession of a co‑accused cannot form the basis of conviction unless that confession is corroborated by other evidence. The learned Judges observed that it will be far too dangerous to consider that a confession of a co‑accused amounts to evidence against a person. The Supreme Court of Pakistan held in Joygun Bibi v. The State (P L D 1960 S C 313), that a confession of a co‑accused was merely a matter to be taken into consideration and did not have the quality of evidence, and that no conviction could be sustained on such confession alone. It is, therefore, clear that there is no evidence against Iftikhar Amir which he may be called upon to answer during the inquiry or the trial. The proceedings against him shall be futile in the circumstances of the case. I quash the proceedings against Iftikhar Amir.

8. The petition so far as it relates to Allah Ditta, Salehon and Sher is dismissed.

Order accordingly.

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