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Criminal Appeal No. 9 of 1955, decided on 18th May 1955.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 13th April 1954, in Criminal Appeal No. 461 of 1953).
Findings of fact recorded by High Court in criminal matter‑Ordinarily not to be interfered with, except in case of grave injustice.
The Federal Court does not interfere with findings of fact recorded on the evidence by the High Court except in case of grave injustice. In following that course, the Court has continued the practice of the Privy Council in this regard, and the Privy Council bad found it necessary in the interests of justice to review findings of fact in the light of the evidence, where, in its opinion there had been a grave injustice.
Bhuboni Sahu A I R 1949 P C 457 : P L D 1949 P C 90 ref.
S. 339 (1)‑"The statement" refers to either the statement before the Committing Magistrate or his statement at the trial or to both not to the statement made by approver before a Magistrate in course of investigation under S. 164 Criminal P. C.‑‑Latter statement, held, inadmissible against the approver at his own trial.
The words "the statement" in section 339, subsection. (2), Cr. P. C. refer to either the statement of the approver before the Committing Magistrate, or his statement at the trial, or to both, They do not include any statement made by the approver in the course of the investigation under section 164. The latter is inadmissible against the approver at his trial after forfeiture of pardon.
When the approver is himself an accused person in the case, the statement, if self‑incriminatory can only be proved against him, if it is relevant, under the law of evidence. In other words, it must be proved to be voluntary, and from the technical point of view, it must be recorded in the form prescribed for the purpose viz., by section 364, Criminal P: C., read with section 1 4, Criminal P. C. As a previous statement, it can be used only for contradic tion or corroboration, which in the case of an accused person is not possible. Sections 32 and 33, Evidence Act are not available to render such a statement admissible in evidence. Therefore, such a statement is, under the general law not admissible in evidence at all.
Neither is this statement relevant under section 339 (2), Criminal P. C.
If for no other reason, the circumstance that the admissibility of such a statement contravenes one of the strongest principles of criminal law, namely, that a confession is relevant only if voluntarily made, the Court must lean against its admissibility, in view of the obvious inducement which procured the statement.
If section 339 (2), Criminal P. C. confers relevancy upon a statement which under the general law is not relevant, using the words "the statement", the reference is not to "any statement" which the‑prosecuting agency may choose to obtain at their option, but to a statement which the law prescribes shall be obtained. Such statements are the statements made on oath, and under liability to cross‑examination, during Court proceedings between the prosecutor arid the accused person against whom the approver is testifying.
These considerations weighed with the Legislature in its decision to render such statements made in Court, in judicial proceedings inter pates, relevant, notwithstanding that they contain self‑incriminatory matter which the witness included under a promise of pardon.
Rain Nath I L R 9 Lah. 608 and Rambharose A I R (3 I) 1944 Nag. 105 disapproved.
Parma Nand A I R 1933 Lah. 321 distinguished.
Faqir Shah A I R 1934 Pesh. 46 partially dissented from.
Bhuhoni Sahu A 1 R 1949 P C 257 ; P L D 1949 P C 90 Nazir Ahmad 63 I A 372 and Gillis 1 I Cox's Cr. L. C. 69 ref.
A. D. Malik, Advocate, Federal Court, instructed by Naziruddin, Attorney for Appellant.
A. R. Change:, Advocate‑General, Punjab, (Fazal Illahi, Advocate, Federal Court with him) instructed by Ijaz Ali, Attorney for Respondent.
Date of hearing : 18th May 1955.
This appeal is brought before this Court by special leave granted to the appellant Mst. Fazlan, a convict under section 302, P. P. C., who has been sentenced to undergo transportation for life. The charge against her was based upon the allegation that in company with two persons named Muhammad Nawaz and Abdullah she had committed the murder of her husband Muhammad Hayat.
Muhammad Hayat deceased was brother to Shera (P. W. 7) who, on the 1st March 1952, made a report to the Railway Police at Sargodha regarding the disappearance of Muhammad Hayat for the past four days. In his statement, Shera mentioned that Hayat's wife i.e., Mst. Fazlan was of loose character and that she had once eloped with a person named Baqri. He added that upon information given by Muhammad Nawaz (who was later. accused of the offence) he himself had verified the presence of blood upon the railway track in the neighbourhood of village Ludewala, where Muhammad Hayat had been temporarily staying. Here also, he said that he had seen a wooden comb lying on the ground which he identified as the property of Muhammad Hayat.
The investigating officer reached the spot the same afternoon, and besides the comb, recovered also same broken pieces of a glass bangle, of which no mention had been made in Shera's report. By a remarkable coincidence, the body of Hayat was recovered the same afternoon from a canal. It was well preserved, having lain under water for most of the interval, and could be readily identified. Some eighteen injuries were noticed nine of which were large incised wounds. Death was due to the wind pipe and gullet being cut through. Shera admitted‑a fact which was denied by the investigating authorities‑that Muhammad Nawaz, Abdullah and Mst. Fazlan were sent for by the Police from the very first day of the investigation. Yet, it was not until the 12th March 1952, that the police officer recovered from the person of Mst. Fazlan a number of bangles which she was wearing, and which the prosecution attempted to prove were similar to that of which the broken pieces had been recovered from the spot on the railway track some twelve days earlier.
On .the 13th March 1952, Mst. Fazlan was given a promise of pardon, and being placed before the Magistrate, her statement, was recorded on oath, under section 164, Criminal P. C. Briefly, the statement was to the effect that at Ludewala, she had developed intimacy with Muhammad. Nawaz accused who was the first to suggest that Muhammad Hayat should be killed. A conspiracy was formed in which Abdullah was joined, and on the night in question Muhammad Hayat was induced upon a certain pretext to go with the conspirators to a Chak about 9 miles distant. On the way near the railway line, he was seized and killed with blows of a take delivered by Muhammad Nawaz while he was being held by the other two persons namely Abdullah and Mst. Fazlan. The statement mentioned that one of Mst. Fazlan's bangles was broken during the incident and that Muhammad Hayat's comb was left behind. It was said that Muhammad Nawaz threw into the canal not only the dead body but also a khes, a pair of shoes, a turban and 4 chador which Muhammad Hayat had been wearing.
Yet, Muhammad Nawaz, when leaving the spot, took with him his own toka as well as a stick which Muhammad Hayat had been carrying.
In due course, on the 12th March 1952, both the toka and the dathi were recovered at the instance of Muhammad Nawaz from places of concealment in his house, in the course of the investigation. The prosecution were also able to produce a witness Khan Muhammad (P. W. 10) to make a statement that on a night three days before he heard that Muhammad Hayat had been murdered, while returning to his home from Ludewala railway station between I a.m. and 2 a.m., he saw the three accused persons going in the company of Muhammad Hayat. Muhammad Nawaz accused when questioned said they were going on business, and this enabled Khan Muhammad to identify him by his voice. The others spoke no word and the night was dark. Other circumstances appear which tend to cast a doubt on Khan Muhammad's testimony. He was uncertain as to his movements on the previous day, thus discounting the explanation he gave for his presence at the material place and time. When, some three days later, Shera P. W. and Muhammad Nawaz accused came to his house to offer condolence on the death of his son, and Shera declared that Muhammad. Hayat had been missing for three days, this witness did not mention his encounter with Muhammad Nawaz and the other accused persons on the night of the crime; nor did he take this information to the police until some twelve days later.
A number of other witnesses were examined, but for the purposes of the present judgment, the case against Muhammad Nawaz and Abdullah may be fairly said to have rested on nothing except the statement made by Mst. Fazlan as an approver under section 162, Criminal P. C., which she declined to support when produced before the Committing Magistrate and later at the trial, corroborated by the discovery of the broken bangle at the alleged scene of the crime, and to testimony of the chance witness Khan Muhammad. It was therefore a natural result that in the Committing Court, these two accused persons were discharged for lack of evidence. Thereafter, the Public Prosecutor certified that Mst. Fazlan had forfeited her pardon "by wilfully concealing essential matters and by giving false evidence." These terms are taken from section 339, subsection (1), Criminal P. C. Accordingly, Mst. Fazlan was brought to trial for the murder of her husband, in respect of which she had been previously granted a conditional pardon. .
At the trial, the same evidence was led against her viz., in addition to subsidiary evidence, proof that she had made the statement mentioned above under section 164, Criminal P. C., proof regarding the broken bangle, and finally the evidence of Khan Muhammad. Mst. Fazlan pleaded that she had satisfied the condition of her, pardon by making a true statement in the Committing Court, i.e., that she knew nothing about the crime but had been beaten and maltreated by the police so much before she was taken to the Magistrate in the first instance that under fear and coercion she had said what was no; true. At the close of the trial the Sessions Judge expressly asked the assessors their opinion as to whether Mst. Fazlan had satisfied the condition of her pardon, and the unanimous opinion was that she had not done so and therefore had forfeited her pardon, The learned Sessions Judge accepted this opinion en the following grounds:‑--
(1) that on the 13th March 1952, Mst. Fazlan had made a voluntary statement under section 164. Criminal P. C., implicat ing herself equally with Nawaz and Abdullah;
(2) that a month later she had resiled from that statement, and
(3) that her allegations of torture etc., by raping and other forms of violence were not borne out by any complaint made by her, to any Magistrate or to the jail officials, and on the other hand, these allegations were negatived by the evidence of a woman doctor, who had examined her.
This medical examination did not take place until the 26th April 1952. By that date, signs of slight injuries inflicted before the 12th March 1952, would normally disappear. The circum stances of the case do not indicate any necessity for appreciable violence. Enough account was obviously not taken of the fact that Mst. Fazlan had been in police custody for twelve days before the pardon was offered and accepted, and she made her state ment, and that she resiled from her statement on the first occasion when she was questioned by another Magistrate.
In the High Court, the view of the trial Court on this point was confirmed and it was held‑that the statement made by Mst. Fazlan under section 164, Criminal P. C. was made "of her own free will". Reliance was placed upon the circumstances that the Jail Superintendent of Sargodha had testified that Mst. Fazlan was examined by the Jail doctor at the time of her admission, and she never complained of ill‑treatment either to him or to the Superintendent of the Jail or to the Jail Board. She entered the Jail on the 14th March 1952. This witness did not say that he ever spoke to Mst. Fazlan or that any of the other officials he mentions either examined her or spoke to her in his presence. The evidence is in the circumstances of little value.
Having decided that Mst. Fazlan had forfeited her pardon, the trial Court proceeded to convict her by a short process of reasoning. Firstly, it was held that the statement under section 164, Criminal P. C., was made by Mst. Fazlan "of her free will and accord". That it was the result of an inducement, in the learned Sessions Judge's view did not affect the relevancy of the statement, since inducement is a necessary incident of King's evidence. Next, the trial Court held that the statement embodied an admission of guilt which was true, and that it was sufficiently corroborated by the recovery of Muhammad Hayat's comb, of the broken pieces of one of Mgt, Fazlan's bangles, and of blood‑stained earth from the spot on the railway line. Additionally, the judgment mentions the evidence of Khan Muhammad, and relies also upon the statement that "within 24 hours of her arrest she turned approver". On this basis of reasoning, the learned Sessions Judge recorded a conviction under section 302, P. P. C., and sentenced Mst. Fazlan to undergo transportation for life.
In the High Court, it was urged that the statement under section 164, Criminal P. C., could not be made the basis of a con viction because it had been retracted by Mst. Fazlan, and. adequate corroboration in the eye of law was absent. The learned Judges proceeded to cite five authorities. Two, namely the cases of Ram Nath v. Emperor (A I R 1928 Lah. 320) and Fagir Shah v. Emperor (A I R 1934 Pesh. 46) are to the effect that when an approver resiles from an admission of guilt, that admission must be regarded in the light of a retracted confession, and "must be corroborated by extrinsic evidence". The next case cited, viz., that of Bhimappa Saibanna Talwar and others v. Emperor (A I R 1945 Bom. 484) was less restrictive it laid down that corroboration in such a case is not an absolute rule of law, but is a rule of prudence to be observed "unless there are circumstances which leave no doubt that it (i.e., the admission) is voluntary and true". The case of Mst. Khuban v. Emperor (A I R 1930 All. 29) which is almost to the same effect was then cited and the list was closed by the case of Partap Singh v. The Crown (I L R 6 Lah. 415), where it was stated uncompro misingly that the fact that a confession had been retracted does not affect the legality of its admission as evidence, and that the person making it may be convicted thereon even without corroborative evidence. In the present case however, the learned Judges stated that there was ample corroboration of Mst. Fazlan's statement, which they found principally in the recovery of the broken bangle and in the evidence of Khan Muhammad. They thought that there was also evidence of motive viz., that Muhammad Nawaz had been trying to get Hayat to divorce his wife.
Enough has been said already in this judgment to indicate our view that the evidence upon which reliance has been placed as affording material corroboration of the retracted statement made under section 164, Criminal P. C., is far from being weighty. When the prosecution evidence is so slight as in this case, the circumstances should have been taken more fully into account. It is not the practice of this Court ordinarily to interfere with finding's of fact recorded on the evidence by the High Court. In following this course, this Court has continued the practice of the Privy Council in this regard. Yet, the Privy Council in a number of cases, found it necessary in the interests of justice to review findings of fact in the light 7 the evidence, where, in its opinion there had been a grave injustice. The case of Bhuboni Sahu (AIR1949PC257:PLD1949PC90) may be men tioned as one in which certain materia circumstances had been relied upon as corroborating the evidence of an approver and the statement of a co‑accused person, as against the appellant. These material circumstances were the recovery of a loin‑cloth and of a grass‑cutting instrument, and the Judicial Committee considered that these articles were of such a common pattern, and so universally found among persons of the type in question, as to be wholly insufficient to provide the corroboration legally necessary.
But in the present case a more fundamental contention has been raised, namely that, upon the facts of the present case, and having regard to the relevant provisions of the criminal law, the statement of Mst. Fazlan made under section 164, Criminal P. C., is not admissible in evidence at all. The legal provision is con tained in subsection (2) of section 339, Criminal P. C., and is in the following terms:---
"The statement made by a person who has accepted a tender of pardon may be given in evidence against him at such trial".
The argument for the appellant is as follows. By using the expression "the statement" the Legislature must be understood to be referring to a particular statement or statements (for under the ordinary rules of interpretation the singular includes the plural). In order to ascertain the precise meaning of the expression, it is necessary to refer back to section 337, Criminal P. C., which pro vides for the tender of pardon to an accomplice. Subsection (1) of section 337, Criminal P. C., specifies the offence in respect of which, and the judicial officer by whom a tender of pardon may be made "with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence." Such an offer may be made "at any stage of the investigation or enquiry into or the trial of the offence." The condition of the pardon prescribed by law is that the person accepting the offer undertakes to make "a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor; in the commission thereof." Specific pro visions for obtaining the evidence of an accomplice in such cases are contained in subsection (2) which reads as follows :‑
"Every person accepting a tender under this section shall be examined as a witness in the Court of a Magistrate taking cogni zance of the offence and in the subsequent trial, if any."
By subsection (2A) it is provided that where in a case in which a person has accepted a tender of pardon and has been examined under subsection (2)" the Magistrate is satisfied that the necessary conditions exist, he shall commit the accused for trial at sessions or by the High Court.
On the basis of these provisions in section 337 Criminal P. C. the argument is presented that the expression "the statement" in section 339 (2) must necessarily refer to the statement made by the accomplice either in the Committing Court or at the trial, and the words may embrace both such statements. They cannot however be stretched to include any statement for tire procuring of which no provision is made in the relevant legal provisions.
It is undoubtedly open to the prosecuting authorities, after the accomplice has accepted the offer of pardon, to .examine him in any manner for which provision is made in the Criminal P. C. Thus, the police investigating officers may interrogate him and record his statement as often as they please, and all such statements will fall under the restrictive provisions of section 162, Criminal P. C., in respect of their use at the trial. Again, it is open to the investigating authorities to place the accomplice before a Magistrate for recording of his statement under section 164, Criminal P. C. which expressly applies to the stage preceding the commencement of the enquiry or trial and while the offence is in course of being investigated. The ordinary use of statements recorded under section 164, Criminal P. C., would be determined by the principles of the general law of evidence embodied in sections 32, 33, 145 and 157 of the Evidence Act, 1872. The two latter sections provide that when the approver is being examined, he may be contradicted or corroborated with the aid of his earlier statements recorded under section 164, Criminal P. C.
Sections 32 and 33 are placed in the Evidence Act under the sub‑heading "statements by persons who cannot be called as witnesses", and among the categories included in this general class are persons who have "become incapable of giving evidence." The general law in Pakistan does not permit the examination of accused persons as witnesses in cases against then: Yet this is not equivalent to saying that an accused person is incapable of giving evidence. By section 287, Criminal P. C., it is provided that "the examination of the accused duly recorded by or before the Committing Magistrate shall be tendered by the prosecutor and read as evidence" at the trial following the commitment. This is the case even though the accused is not liable to be cross- examined, and the administration of an oath to him is prohi bited by law. The examination of an' accused person in an enquiry or trial is governed by the provisions 9f section 342 Criminal P. C., and although for the purposes of the enquiry of trial, the statement may only "be taken into consideration", yet by subsection (3), the statement may be "put din evidence for or against him in any other enquiry into, or trial for, any other offence which such answers may tend to show he has committed
In the circumstances, to bring under section 32, Evidence Act, the statement of an approver made under section 164, Criminal P. C. for the purpose of the trial of the approver for the main offence is not free from difficulty. This section has reference, moreover, to statements which are not within the special provision in section 33, relating to "evidence given by a witness in a judicial proceeding, of before any person authorised by law to take it." There is authority for the view that a proceeding before a Magis trate recording a statement under section 164, Criminal P. C. is a judicial proceeding, and in any case, the recording of such a statement is authorized by law. It is unnecessary to consider here whether such a statement is "evidence", for a further condition applicable to the relevancy of such a statement in a subsequent judicial proceeding is that "the adverse party in the first proceeding had the right and opportunity to cross‑examine" the maker, and in the case of an approver who is being examined minder section 164, Criminal P. C., the condition is clearly not satisfied. The general condition viz., that the person should be "incapable of giving evidence" may also stand in the way. But as respects the examination of the approver by the Committing Magistrate and again by the trial Court, these objections are not available.
If taken from the point of view of an admission by the accused person, who is undoubtedly a party to the proceeding, the com bined operation of sections 18 and 21 of the Evidence Act, 1872 might favour relevancy, but the law in relation to self incriminatory statements is a special one and is contained in sections 24 to 30 of the same Act. Regarded as a confession, tire statement of Mst. Fazlan would fall under section 24 which makes every confession obtained by any inducement, threat or promise proceeding from a person in authority, irrelevant in a criminal proceeding. The promise of pardon in pursuance of which Mst. Fazlan made her statement under section 164, Criminal P. C. clearly proceeded from a person in authority and involved a temporal advantage of a very substantial kind. Consequently, section 24 in its terms applies to a statement made by an approver under section 164, Criminal F. C., and operates to exclude such a statement from evidence, in a criminal proceed ing.
On this point, it is necessary to observe that the view of the learned trial Judge that the fact of inducement in the shape of a promise of pardon is not by itself sufficient to exclude the confession, is not based on a sound view of the law. It is how ever supported by the view oaf a Division Bench of the Lahore High Court in the case of Ram Nath (I L R Vol. 9, 1928, p. 608). In the main judgment by Horde, J. at page 614 the following passage occurs :‑-
"Subsection (2) of section 39 of the Code of Criminal Procedure in my opinion makes by necessary implication a statement of this nature an exception to the rule of evidence enacted let section 24 of the Indian Evidence Act so far as that section excludes confessions made as the resin of inducement or promise. An approver's disclosure is in its very nature always the result of an inducement or promise, namely, the inducement confess upon a promise of pardon: but should it appear that ii was extorted as a result of undue duress, such as threats or violence. I have no doubt that to that extent the provisions of section 24, would be applicable and the confessional statement would have, try be ruled out of evidence."
With great respect to the learned Judge, the proposition which he lays down represents a clear advance upon the plain terms of section 24, and to that extent his conclusion has the effect not of interpreting the law, but of legislating. The passage cited, above has been extracted from a larger argument in which the learned Judge arrives at the conclusion that a statement by an approver under section 164, Criminal P. C. is rendered relevant as substantive evidence in a subsequent case against the approver. by the operation of 'subsection (2) of section 339, Criminal P. C. The argument will require to be considered in its entirety later. At this point, it is sufficient to say that, in our opinion, it is not possible to construe a statement by an approver recorded under section 164, Criminal P. C. containing self‑incriminatory matter, out of the provisions of section 24, Evidence Act.
A further objection can be advanced against using such a statement as a confession. Although the objection rests on a technical ground, it nevertheless relates to a substantive branch of law. It is that, in the presence of the clear provision contained in section 164, Criminal P. C., a confession by an accused person must be recorded in the manner provided in section 364 of the same Code. If the statement' is not recorded in the manner provided by section 364, it is not admissible in evidence. The decision of the Privy Council in the case of Nazir Ahmad (63 1 A 372) makes this perfectly clear. There, the conviction rested in the main on a confession said to have been made to a Magistrate which was not recorded under section 164, Criminal P. C. (The accused person in that case was alleged to have taken the Magistrate over the scene of the crime and shown him the places where various incidents took place. The Magistrate kept a memorandum of what the accused person said, and what he did in the way of pointing out places etc. This was sought to be admitted in evidence on the ground that it would be admissible if deposed to by a person other than a Magistrate). The Judicial Committee declared that whether a Magistrate records any confession is a matter of duty and discretion, and not of obligation. The relevant rule of law is that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all, other methods of performance being necessarily forbidden. Both as a matter of construction and of good sense, there were strong reasons for applying the rule in question to section 164, Criminal P. C. The Judicial Committee went on to observe that it would be an unnatural construction to hold that in respect of confessions to Magistrates, any other procedure was permitted than that which is laid down with such minute particularity in sections 164 and 364, Criminal P. C. They observed as follows:‑
"Upon the construction adopted by the Croup, the only effect of section 164 is to allow evidence to be put in a form in which it can prove itself under sections 74 and 80 of the Evidence .Act. Their Lordships are satisfied that the scope and extent of the section is far other than this and that it is a section conferring powers on Magistrates and delimiting them. It is also to be observed that, if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by sections 164 and 364 should be of such trifling value as to be almost idle . . . . The range of magisterial confessions would be so enlarged by this process that the provisions of section 164 would almost inevitably be widely disregarded in the same manner as they were disregarded in the present case."
To regard the statement of Mst. Fazlan made under section 164, Criminal P. C. in the capacity of an approver, as constituting a confession recorded under that section is there fore contrary to principle as well as to the express provisions of the Code, which for good and sufficient reasons, distinguish with great exactness between statements made during investiga tions before Magistrates by, on the one hand witnesses, and on the other hand, accused persons incriminating themselves.
It is instructive to refer on this point to the law as it is administered in England. The following passage appearing at page 390 of Archbold's Criminal Pleading Evidence and Practice, 32nd Edition, is relevant:‑--
"A confession, made with a view, and under hope, of being thereby permitted to turn King's evidence, or of obtaining a pardon or rewards, has been held inadmissible. And it is clearly so where such hope is the reasonable result of a com munication from, or the conduct of, a person in authority".
A number of cases are cited in support of these propositions, mostly of considerable antiquity, indicating that the law in this respect has been settled for a considerable period. One of the cases cited in Archbold's work furnishes a very close parallel to the circumstances in the present case. It is the case of Gillis (Cox's Cr. L C p. 69). During the period of the Sinn Fein sedition in Ireland. Gillis volunteered to a police constable a statement implicating himself and others in a Fenian conspiracy, and subsequently at the instance of the constable, repeated the statement to a police superintendent and thereafter on oath to a Magistrate. Subse quently he made a supplementary self‑incriminatory statement to the same Magistrate, in the course of which he said that he had come there "to save himself". The Magistrate made no comment on this, nor was any caution given, as is appro priate in the case of a confessing accused person. On the other hand Gillis was bound over to prosecute and was consid ered by the Magistrate as an approver. Subsequently, he refused to prosecute and he was then arrested, tried and convicted. His appeal was heard by a Bench composed of two Chief Justices, four Judges and three Barons. One of the Judges on the appellate Bench was the Judge who had tried and convicted the accused, and he maintained his previous view. One of the Chief Justices agreed with him. The remaining members of the Bench held one or both of the information by Gillis to the Magistrate to be irrelevant. The following passage from the judgment of O'Hagan, J. expresses with clarity, what in our respectful opinion, is the correct view in a case of this kind ;‑‑
"In the first place there cannot be any doubt that when re did , all this he was virtually in custody. He had confessed his guilt, and was in the power of the police, it was their duty to arrest him, and undoubtedly , they would have done so if he had refused to become approver. In the next place be was asked to give this evidence by a person having authority instantly to arrest him and give him up to justice if he hesitated to swear against his confed erates ; and finally, he became a Crown witness in the reason able expectation that he would escape punishment as a return for his accepted services in bringing other offenders to justice. This being so, the prisoner made his information under an inducement of hope held out by a person in authority, and that confession cannot be made admissible by his refusal to keep his bargain with the Crown. We have in evidence, not only the prisoner's own declaration of his hope of safety, but the conduct of the Magistrate shaped on the belief that that hope was well founded. I do not dwell on the mere existence of the hope in the prisoner's mind. No doubt every admission is inspired by some hope ; but it is because that such hope appears to me to be the reasonable result of a communication from a person in authority that the confession becomes inadmissible. This is the substance of Baron Gurney's decision in the cases from C. & P. cited to us . . . . if the approver break his bargain with the Crown he stall not be allowed the benefit of it, but the witness and the prosecutor are relegated to their original position. 1f the prosecutor then can make out his case by legal evidence, by confession or otherwise, the prisoner must abide by it. But that is no ' authority for convicting him on illegal evidence, on a confession not voluntarily made, and with the inducement of hope or fear. I have no fear that this decision will have any of the injurious consequences predicted by the counsel for the Crown. It is, in my opinion, strictly in accordance with the rudimental doctrines of law by which the subject's liberty is protected, and will not give any immunity to the approver who refused to supply the evidence he had contracted to furnish. The moment he does so he may be put in the dock as if he had never had any connection with the Crown, with all the disadvantage of the disclosures he has made against himself, as a means for the Crown to obtain further independent evidence against him, although they cannot be directly used at the trial".
The statement under section 164, Criminal P. C. which Mst. Fazlan made to a Magistrate. is precisely parallel to the two statements made by Gillis in the precedent case. By subsequently refusing to testify against the accused persons, Mst. Fazlan might be thought to have broken her bargain with the Crown, and therefore to have forfeited the benefit of it but, applying the principle of Gillis's case, the only effect would be that she would be relegated to her original position as an accused person in the case, and would be liable to be convicted upon legal evidence. In the absence of clear statutory provision to the contrary, tire confession contained in her statement under section 164, Criminal P. C. would appear not to be relevant in the case against her on the simple ground of its not having been voluntarily made. On the other hand that statement is available as against her to the prosecution who were at liberty to utilise it for the purpose of obtaining further independent evidence against her, although they were debarred from using it directly.
The answer to this argument is sought to be based upon the simple words of subsection (2) of section 339, Criminal P. C. which has already been reproduced. For this view, the learned Advocate‑General has sought support in three judgments of High. Courts viz., the case of Ram Nalh (I L R 9 Lah. 608) the case of Parma Nund (A I R 1933 Lah. 321) and the case of Rambharose (A I R (31) 1944 Nag. 105). With these cases we propose also to consider the case of Faqir Shah (A I R 1934 Pesh. 46).
The facts in' the case of Ram Nath were exactly similar to those in the present case. Having made a circumstantial statement to a Magistrate, supporting the 'prosecution during the investigation, after having accepted the offer of pardon, when he was placed before the Committing Magistrate, Ram Nath denied everything he had said before and imputed the whole statement to police pressure. He was subsequently tried in a certificate by the Public Prosecutor, and after conviction preferred an appeal in the High Court. It was contended on his behalf that his statement recorded by a Magistrate after he had accepted the promise of pardon was, not admissible in evidence "because it is a confessional statement and the document recording it does not comply with the provisions of section 164 of the Code of Criminal Procedure". Fforde, J. who wrote the judgment dealt with the point as follows :‑‑‑
"So far as the first point raised is concerned, I have no doubt that the statement made by the appellant to Mr. Fhailbus is admissible in evidence under the provisions of section 339 (2). Of the Code of Criminal Procedure, provided it has not been shown to have been induced as a result of threats or of violence".
The learned Judge went on to say, with reference to section 337 (1) of the Code that a statement made by an approver under that section could be made, orally, and need not be reduced to writing, but would be sufficiently proved by the verbal testimony of the person to whom it was made. In the opinion of the learned Judge, the practice of reducing an approver's statement to writing was, although very desirable, a rule of caution only. This statement, lie thought was the disclosure which the approver was undertaken to make, and "is not make under the provisions of section 164 of the Code of Criminal Procedure, and in my judgment that section in no way governs such a statement". We have already expressed the view that the learned Judge's dictum that an approver's state ment scilicet under section 164, Criminal P. C. can only be brought under section 24, Evidence Act, if the inducement under which it was made is supplemented by "undue duress, such a threats or violence", amounts to legislation, which is outside the province of a Judge.
We find it impossible also to accept the declaration by the learned Judge that a statement by an approver made in the course of investigation to a Magistrate is not covered by section 164, Criminal P. C. The terms of that section apply in their entirety to such a proceeding, and there is no other provision in the Code which could enable a Magistrate to record a statement of this kind. Section 337 contains a provision for the examination of an approver as a witness at the enquiry and trial, but says nothing about the examination of such a person in the course of the investigation. Conse quently, such examination necessarily falls within the general provisions of law relating to the examination of a person in the course of an investigation viz., under section 164, Criminal P. C. and the contrary conclusion of the learned Judge in the case of Ram Nath appears to us (we say so with all respect) to be clearly wrong. As for the conclusion that such a statement is made admissible in evidence by section 339 (2), it rests on no process of argument which touches the point raised in the present case, and is therefore of no assistance.
The judgment of the learned Judicial Commissioners of the North West Frontier Province in the case of Faqir Shah discloses somewhat different facts. The approver's statement was recorded in the investigation by a Magistrate. In the Committing Court he supported the statement, but at the trial he professed to be completely ignorant of the crime. In their judgment, the learned Judicial Commissioners mentioned the first two statements of the approver, and declared that "under section 339 subsection (2), Criminal P. C. such statements are admissible in evidence against the appellant". The statement made in the Committing Court is clearly admissible, but the dictum regarding the admissibility of the statement under section 164, Criminal P. C. cannot be accepted as it stands, i.e., unsupported by argument.
In the case of Parma Nand, the facts were again different. Parma Nand was examined by a Magistrate‑ after he had accepted the pardon, and we note that, with reference to this examination, the learned Judges of the Lahore High Court said that this Magistrate was obviously acting under section 164, Criminal P. C." Both in the Committing Court as well as at the trial Parma Nand adopted the, curious procedure of repeating in his examination‑in‑chief the statement which he had made under section 164 Criminal P. C., and in cross -examination denying everything and alleging that all that he had said was false and was induced by torture applied to him by the police. Thereupon the Public Prosecutor issued the necessary certificate and eventually an application was moved in the High Court for permission to prosecute him under sections 193 and 194 of the Penal Code. The objection was taken that the statement made under section 164, Criminal P. C. could not form the basis for the charge of perjury, inter alia, on the ground that it was not evidence. It had been stated in the last paragraph of the complaint that the accused himself admitted before the Sessions Court that he had made false statement. Consequently, the question whether he could be prosecuted in relation to his statement under section 164, Criminal P. C. was of no practical importance and the judgment declared this to be the case in the following words ‑‑
"On the case coming before us the attention of Mr. M. L. Batra was drawn by the learned Government Advocate to the concluding paragraph of the complaint, whereupon Mr. Batra, very frankly, said that he had failed to notice the exact wording of that paragraph and that had he noticed it he would not have raised the point on which the reference' was really based, at this stage of the proceedings".
Nevertheless, while appreciating that the question which they were deciding was of purely academic character, the learned Judges examined the relevant provisions of law as well as a number of authorities and came to the following con clusion :‑
" . . . . it must be held that in recording a statement under section 164, Criminal P. C., a Magistrate is empowered to administer to the deponent an oath or solemn affirmation and that the statement so recorded can form the subject of an alternative charge under the perjury sections of the I. P. C. In these circumstances I consider that sanction should be accorded to the prosecution of Parma Nand in this case and I would therefore grant the sanction prayed for".
This case attracts more directly the application of subsection (3) than of subsection (2) of section 339, Criminal P. C., subsection (3) is in the following terms :‑
"No prosecution for the offence of giving false evidence in respect of such statement shall be entertained without the sanction of the High Court".
The words "such statement" undoubtedly refer to "the statement" mentioned in subsection (2). It is only with respect to a statement which is governed by subsection (2) that the restriction of sanction by the High Court is made a requisite. In the case of Parma Nand, there were two statements made in the Committing Court and at the trial, which on the facts stated, rendered Parma Nand liable to prosecution for giving false evidence, and in respect of these statements, as to which there can be no doubt that they fall within the provisions of sub section (2) of section 339. Criminal P. C., the sanction of the High Court was undoubtedly a sine qua non for the prosecution. The judgment in the case does not lay down that such sanction was necessary also for prosecution, of Parma Nand in respect of the statement made under section 164, Criminal P. C.
Reference to section 191, P. P. C. shows that, although the offence defined is described as the offence of " giving false evidence", it includes the making of any statement by a person who is legally bound by an oath to state the truth, and even by a person who is bound by law to make a declaration upon any subject. Therefore, it is clear that person making a state ment under section 164, Criminal P. C., may make himself liable for the offence of "giving false evidence" even though his statement may not be evidence in the full sense of that term, i.e., in the sense in which statements made in a Committing Court or at the trial, in the capacity of a witness, are undoubtedly evidence. But with respect to the case of Farms Nund, it seems to us to be plain that it does not have the effect of rendering the statement made under section 164, Criminal P. C. by Parma Nand, a statement for the purposes of either subsection (2) or sub section (3) of section 339, Criminal P. C.
The case, of Rambharose affords a parallel on the facts to the‑present case. Rambharose accepted an offer of pardon and made a statement to a Magistrate on solemn affirmation sup porting the prosecution case. He was examined as a witness in the Committing Court and at the trial and in both Courts he denied all knowledge of the crime. He was then prosecuted on the Public Prosecutor's certificate for the original crime and the question before the full Bench of the Nagpur High Court, was whether his statement under section 164, Criminal P. C. could be used in evidence against him at the trial. The question was answered in the affirmative, and the argument which found favour with the Full Bench was somewhat as follows. They con sidered that the words "the statement" in section 339, subsection (2) must refer to the "full and true disclosuri of the whole of the circumstances within his knowledge" mentioned in section 337 subsection (1). They then went on to, observed as follows :‑-
"There are three occasions on which this full and true dis closure can be made‑at the examination under section 164, in the committing Magistrate's Court, and in the Sessions Court. If a full and true disclosure is made on all three occasions, no question of the forfeiture of the pardon of the approver and the subsequent trial of the approver arises ; and if a full disclosure is made on the first two occasions but not in the Sessions Court no difficulty arises because the evidence in the committing Magistrate's Court can undoubtedly be used against the approver at his subsequent trial. It is only when, as in the present case, the full and true disclosure is made on the first occasion only that a difficulty arises".
The conclusion which the Full Bench reached upon this short argument was expressed as follows :‑‑
"Our conclusion then is that the statement mentioned in section 339 (2) means the full and true disclosure whenever made by the approver in pursuance of his undertaking to make such a disclosure, In a case like the present, there is only one such statement and that statement may be proved against him".
With great respect to the learned Judges, the argument is not free from defect. Firstly, it includes within the very specific expression " the statement" an examination of the approver by a Magistrate which it is entirely at the option of the prosecution to obtain or not as they please. Moreover, as was said by the Privy Council in Nazir Ahmad's case, even for the Magistrate it is a matter of duty and discretion, not of obligation, to examine a person under section 164, Criminal P. C. It is not readily to be supposed that when the Legislature elected to employ the specific expression "the statement" instead of the familiar alternative of wide import namely "any statement", it did so with the intention of including within the meaning of the words, a statement of a non‑obligatory nature with the Magistrate might even decline to record, in the proper exercise of his discretion.
To assume that there are three occasions upon which an approver may make his, disclosure of facts is again, I say so with respect, fallacious. In numerous cases involving the employ ment of approvers, the Courts are faced with more than one statements obtained from them by police officers in the course of the investigation. On the argument which appealed to the Full Bench of the Nagpur High Court, every examination, fly a police officer in the course of the investigation must be regarded as one more opportunity to make a full and true disclosure".
But indeed, the fallacy arises from the assumption that any of these opportunities, whether during the investigation or after, and whether before Courts or otherwise, will be or hits been em ployed for the purpose of making a full and true disclosure". It is true that the pardon is granted on condition of making "a full and true disclosure", and that this condition is accepted by the approve. Yet, the condition or its acceptance do not by any means afford a guarantee that "a full. and true disclosure" will be made n consequence. It is obvious that a Court seized. of the case in which the approver deposed would be in grave danger of deviating from the due course of justice if it attempted to decide, simpliciter; which of several statements made by an approver at different times contained, in itself, the "full and true disclosure" which he had undertaken to make. therefore, it seems to us with great respect, that to link "the statement" referred to in section 339 subsection (2), with the condition to make "a full and true disclosure" is a proceeding not based on sound reason.
A further aspect of the argument of the Full Bench is this. An assumption appears to be made that the law requires that such a person should, as it were, be condemned out of his own mouth as a punishment for having broken his bargain. It seems to us that the words of sections 337 and 339, Criminal P. C. cannot sustain such a conclusion. An obvious case is where after having accepted an offer of pardon, when examined under section 164, Criminal P. C., the person in question declines to make any statement, or to make a full statement or makes a statement which is clearly false or incomplete in various respects known to the prosecution. Under the obligatory provisions of law, he must be examined in the enquiry and at the trial. Assuming that he adopts the same attitude on these occasions as well, the question arises to what statement subsection (2) of that section could possibly apply, if the condition be that it should be the "full and true disclosure" promised by the approver. Ex-hypothesis the statement, if any, under section 164, Criminal P. C. is either false or wilfully, incomplete; or both, and the same is true of the two statements made in Court.
The error appears to lie in searching for a relevant state ment to be designated the "full and true disclosure" made by the approver. The condition to make such a disclosure has, no doubt, been accepted, but there is no certainty that it will be fulfilled. It is obvious that any statement made by the approver must be tested for fullness and veracity, as well as for relevancy, under the ordinary law of evidence, as modified by any special law relating to approver's statements.
The view taken by the Nagpur High Court, if accepted, would have the effect of rendering a statement recorded under section 164, Criminal P. C. substantive evidence in the case, by reason of the special circumstance that it was made by an approver who had forfeited his pardon and therefore become liable to be pro secuted for the main offence. A very considerable departure from the ordinary law is involved in such a conclusion. It was said by the Judicial Committee in the case of Bhuboni Sahu (cited above) that :‑
"A statement made under section 164, Criminal P. C. can never be used as substantive evidence of the facts stated, but it can be used to support or challenge evidence given in Court by the person who made the statement".
When the person who made the statement is himself an accused person in the case, the statement, if self‑incriminatory can only be proved against him, if it is relevant, under the law of evidence. In other words, it must be proved to be voluntary, and froth the technical point of view, it must be recorded in the form , prescribed for the purpose viz., by section 364. Criminal P. C., read with section 164, Criminal P. C. as a previous statement, it pan be used only contradiction or corroboration, which in the case of an accused person in Pakistan, who is not a competent witness, is not possible. It has been seen that the provisions of sections 32 and 33, Evidence Act are not available to render a statement of the present kind admissible in evidence. Therefore, such a statement is under the general law not admissible in evidence at all.
Can it be regarded as being, rendered relevant by the provisions of section 339 subsection (i), Criminal P. C. If for no , other reason, the circumstance that the admissibility of such a statement contravenes one of the strongest principles of criminal that a confession is relevant only if voluntarily made, the Court must lean against its admissibility, in view of the obvious inducement which procured the statement. The same effect is induced by reason of the grave departure from the general law involved in accepting the proposition But indeed, the statute itself, on its true construction, does not support the proposition. It provides for a person who has accepted a promise of pardon to be examined in the case in Court on two occasions as a witness. It is thoroughly reasonable to infer that when these same legal provisions confer relevancy upon a statement which under the general law is not relevant, using the words "the state ment", the reference is not to "any statement" which the prosecuting agency may chose to obtain at their option, but to a statement which the law prescribes shall be obtained. Such statements are the statements made on oath, and under E liability to cross‑examination; during Court proceedings between the prosecutor and the accused person against whom the approver is testifying. It is true that he testifies under a promise of pardon, but at the same time the truth of his state then is liable to a rigorous check, through being made in Court before a Magistrate or a Judge, and even more so, through the liability of the approver to be cross‑examined in respect of the, entire facts of the case in general and his own conduct in particular. It would be reasonable to suppose that these consideration weighed with the Legislature in its decision to render such statements made F in Court, an judicial proceedings inter partes, relevant, notwith standing that they contain self‑incriminatory matter which the witness included under a promise of pardon.
Under the general law, such statements made in Court are admissible in a subsequent judicial proceeding. The principle is' embodied in section 33, Evidence Act, which has been referred to above. It appears clearly in the following passages from Archibold's standard work already cited :‑‑‑‑
(1) "Admission by the prisoner on oath in another case are admissible against him, except as to questions which he was improperly compelled to answer, when under no obligation to criminate himself. Thus in R. v. Chidley, (62 J P 250) Cockburn, C. J., admitted as evidence against a prisoner a deposition made by him before a justice while under examination as a witness, another person being at that time charged with the crime and this case was followed in R. v. Laurent (8 Cox 365.) where admissions of indecent acts made by L. in his evidence on the prosecution of another for larceny were held admissible against him on a charge under the Criminal Law Amendment Act, 1885." page 385.
(2) Subject to any exceptions introduced by statute, the general rule deductible from the modern cases seems to be that any statement made by a person upon oath, when being examined as a witness, either before a civil tribunal, a coroner, or a Magistrate may be afterwards used against him on his trial on a criminal charge, unless, indeed, at the time of his examination he objected to answer the questions on the ground that the answers would tend to criminate him, and yet was improperly compelled to answer them". . page 388.
When statements of this kind, which are induced by a promise of pardon, are made admissible in evidence against the maker in a case against him, based on the facts mentioned in the statement, the departure from the general law is minimised, and there is available also the safeguard mentioned above viz., that the statement is made in a proper judicial proceeding in open Court, and the witness is liable, and is generally subjected; to cross- examination. The case is otherwise in respect of a statement under section 164, Criminal P. C. where the accused person is neither present nor represented and the Court, not being seized of the case does not evince the same interest in the proceedings as in a case of which it has taken cognizance.
We are satisfied that the correct view is that the words "the statement" in section 339, subsection (2), Criminal P. C. refer to either the statement of the approver before the Committing Magistrate, or his statement at the trial, or to both. They cannot E in our view be stretched to include any statement made by the approver in the course of the investigation. On this ground, we hold the statement of Mst. Fazlan under section 164, Criminal P. C. to be inadmissible. When that statement is eliminated, the evidence becomes altogether insubstantial and wholly insufficient to sustain the conviction, so that the accused person becomes entitled to acquittal.
For these reasons, we allow this appeal and acquit Mst. Fazlan.
A. H. Appeal allowed.
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