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Criminal Appeal No. 62 of 1956, decided on 18th October 1956.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 13th March 1956, in Criminal Appeal No. 444 of 1955jConfir pnation Case No. 69 of 1955.).

Lodged by accused himself -Excluded from consideration-Criminal Procedure Code (V of 1898), S. 154.

The first information report made to the Police by the accused himself is rightly excluded from consideration at tile trial.

On oath-Illegal---Ant admissible or rele vant- Oaths Act (X of 1873) S. 5--Criminal Procedure Code (V of 1898), Ss. 165, 342 and 364-Evidence Act (I of 1898), Ss. 24 and 132.

By reason of section 5 of the Oaths Act (X of 1873) the administration of an oath to art accused person is an express statutory illegality which must make the confession inadmissible.

The administration to an accused person of an oath or affirmation is opposed to public policy and any infringement of the provision prohibiting the Court from putting him under oath is an illegality which cannot be cured on any principle of consent, waiver or estoppel.

Where the confession of an accused, recorded under section 164 read with section 364, Criminal P. C. was taken down under an oath Held, that the confession was obtained in an illegal manner and its rejection must follow as a matter of course from this illegality.

Such a confession is not governed by section 132, Evidence Act.

Karam Elahi v. The Emperor A I R 1947 Lah. 92 overruled.

Scuffle with thief-Right of private defence and property-Injuries caused to thief with hatchet-One grievous-Offence, held, culp able homicide under section 304 (Part II) P. P. C.

M. Abdul Qayyum, Advocate, Supreme Court for Appel lant.

S.A. Mahmud, Advocate, Supreme Court, instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing : 18th October 1956.

This is an appeal by special leave from a judgment of the Karachi Bench of the High Court of West Pakistan by which the appellant's conviction for murder was maintained and the sentence of death confirmed.

The appellant, Muhammad Bakhsh, used to graze his flock of sheep in the jungle of Deh Dhandi. In the early afternoon of 25th March 1955, while resting under a tree he noticed that his flock which was grazing nearby was suddenly startled. Just then he saw a man carrying away one of the sheep on his shoulders. He ran after the man and when he overtook him, the man threw down the sheep, confronted the appellant and attempted to attack him. The appellant had a hatchet with him, and with this he caused several injuries to the sheep lifter. The thief walked away in a wounded condition but dropped at a short distance. The appellant went to him and found that he was dead. The appellant sat beside the body throughout the night and next morning when Muhammad Hayat a notable of the village, passed by he told him how the man had been killed. Muhammad Hayat recognised the body to be that of Abdur Rahim Shah and advised the appellant to inform the police. Accordingly, the appellant went to Kand khot Police, Station. at a distance of 16 miles, where he reported the matter at 1 o'clock on the 16th March. The Officer-in Charge of the Police Station recorded the information and took into possession not only the hatchet but- also the appellant's apparel which were found on chemical examination to be stained wish human blood: On the following day the appellant was produced before a First Class Magistrate where he made a confession under section 164 of the Criminal P. C. Curiously enough this confession was recorded by the Magistrate on solemn affirmation.

At the trial, apart from the circumstantial evidence furnished by the presence of human blood on the clothes and hatchet of the appellant and the fact that he took the Investi gating Officer to the precise place where the dead body lay, the prosecution relied on the report that the appellant bad made to the police, the judicial confession recorded by the Magistrate and the oral confession made by the appellant to Muhammad Hayat. In appeal the learned Judges of the High Court excluded both the confession and the report and have maintained the conviction on the remaining evidence.

Mr. Mahmud who has opposed the appeal admits that the report made by the appellant at the Police Station was rightly excluded by the High Court but he contends that the judicial' confession, though on oath, was admissible, and he has endea voured to support his contention by a judgment of the Lahore High Court reported as Karam Elahi v. The Emperor (A I R 1947 Lah. 92) to which our brother Muhammad Sharif was a party though the judgment was written by Teja Singh, J. In view of the position taken by the learned Crown Counsel it becomes necessary to determine whether a confession ceases to be admissible if it is made on oath and whether Karam Elahi's case was rightly decided. The question is of some difficulty and has to be considered in the light of certain distinct principles which should not be confused with one another.

Under the Evidence Act, 1872, a confession is irrelevant, when, subject to certain other conditions, it appears to the Court to have been procured by a person in authority by offering to the accused some inducement or promise or by holding out some threat to him. A confession made in conse quence of such inducement, promise or threat is said not to be voluntary but it does not mean that a confession so obtain ed is a compelled confession because the words "voluntary" and "compelled" when used with reference to a confession are not necessarily antithetical. As pointed out by Campbell, L. C. J. in R. Scott ((1856) 1 D & B 47) "the confession of a crime, to be admissible against the party confessing, must be voluntary ; but this only means that it shall not be induced by improper threats or promise". Thus the word "voluntary" in the con fession-law has a special signification and means a confession which is not made in the circumstances mentioned in section 24 as vitiating a confession. Our attention has not been drawn to a single decision in India or Pakistan where the mere fact of a confession having been made on oath has been held to be irrelevant by reason of section 24 of the Evidence Act. From this it must follow that the oath is not fatal to the relevancy of a confession and that the reason foe the exclusion of a confession being its supposed untrustworthiness and a confession being not less likely to be true when -it is made on oath than where it is made without oath, the mere administration of an oath will .not make a confession irrelevant. On the contrary, there are decisions not only in England and United States of America but an express provision in our own Evidence Act according to which a confession made on oath would undoubtedly be admissible. If there had been anything in the oath itself to vitiate a confession, a confes sional statement made in the course of a deposition would have been clearly in admissible. The terms of section 132 of the Evidence Act, however, make it perfectly clear that a confessional or incriminating statement made by a witness in the course of a deposition becomes inadmissible against him at his subsequent trial for the offence confessed only if pri vilege against self-incrimination was claimed and disallowed by the Court. Here again the law is not that a confession made on oath cannot be proved against a person but that no person can be compelled to be a witness against himself and that if he is so compelled as he may well be while giving evidence as to a fact in issue or a relevant fact, the confession so made cannot be proved against him. This rule against compulsion is founded on a principle entirely different from that which governs the relevancy of a confession, and if the distinction between the two is kept in view the answer to the question raised in this case becomes free from several complications. To sum up, a confession is not irrelevant merely because it is made on oath, nor is it inadmissible merely because it was on oath but if a person is compelled to make a confession it cannot be proved against him. In the present case, the confession was not made in the course of a deposition and therefore the answer to the question is not governed by section 132 of the Evidence Act. Admittedly there was no compulsion as the Magistrate made it clear to the accused that he was not bound to make a confession and that if he made one it might be used as evidence against him.

We now come to the principle which governs this case. Section 342 of the Code of Criminal Procedure prohibits the Court from examining the accused under that section on oath. This section is not applicable because the confession sought to be proved here is not one made under section 342 but under section 164 of the Criminal P. C. If a confession is made by an accused person under section 164, it has to be taken down in the manner prescribed by section 364 of that Code. It is true that section 364 does not repeat the prohibition of section 342 against the oath but that does not mean that while an accused person cannot be put on oath when he is examined under section 342 by reason of the express prohibition there, his statement may be taken on oath when its record is prepar ed under section 364. The latter section has nothing to do with the question whether an oath can or cannot be adminis tered to an accused person because by its terms it is restricted to prescribing the manner in which the record of the statement of the accused is to be made. The provision governing the question whether oath can be administered to an accused is section 5 of the Oaths Act, 1873, which defines the classes of persons to whom oath or affirmation can be administered by a Court and which expressly states that "nothing herein contained shall render it lawful to administer in a criminal proceeding an oath or affirmation to an accused person". The plain meaning of this provision is that if a person at the time he makes his statement is an accused person, it is illegal for the Court to put him on oath or affirmation, and as such the provision must not be held to be an express prohibition against the administration of the oath to an accused person. This section is not applicable to cases contemplated by section 132 of the Evidence Act for the simple reason that while this section prohibits the Court from administering an oath to a person accused, section 132 by its very terms contemplates cases where the person making a statement is not an accused but a witness who may subsequently become an accused. This being the position, the administration of an oath to an accused person is an express statutory illegality which must make the confession inadmissible because the exclusion of the statement on the ground of that illegality is the only method of enforcing the prohibition. Sworn confessions were consistently excluded at Common Law in England before the Criminal Evidence Act, 1898 (C. 36), and under statutory provisions in the United States. The rule enacted by section 5 of the Oaths Act is taken from English Common Law and is based on the humanity of criminal jurisprudence which accords a specially favoured position to a prisoner. The law does not compel the prisoner to answer even where the Court is empowered to question him. He is entitled to hold his tongue against all interrogation ; but when he decides to speak, what he speaks is evidence, though not testimony, for as well as against him. And since he cannot be compelled to speak he is under no obligation to speak the truth. The administra tion to him of an oath or affirmation is thus opposed to public policy and any infringement of the provision prohibiting the Court from putting him under oath is an illegality which cannot be cured on any principle of consent, waiver or estoppel. We have, therefore, no doubt that the statement under section 164 of the Criminal P. C. was obtained from the prisoner in an illegal manner and that its rejection must follow as a matter of course from that illegality.

In the Lahore case cited above Teja Singh, J. seems to have treated this illegality as curable under section 537 of the Code of Criminal Procedure if it did not prejudice the prisoner. We cannot see how an accused person can be said not to have been prejudiced when evidence which the law expressly says shall not be taken against him has been so taken, and the finding is influenced by that evidence. The law so jealously guards against inadmissible evidence that where a verdict or finding has been influenced by such evidence it enjoins the Superior Courts to exclude it and to re-weigh the remaining evidence in order to decide whether it can sustain the verdict or finding. We have, therefore, no hesitation in hold ing that the confession cannot be taken into consideration in deciding the question of the appellant's guilt.

The High Court accepted the evidence of Muhammad Hayat who deposed to an oral confession by the appellant and that confession received abundant corroboration by the presence of human blood on his clothes and hatchet when he appeared at the police station Further corroboration was furnished by the appellant's conduct in leading the Investigat ing Officer to the place where the body of the murdered man lay: The case was, therefore, fully proved against the appel lant: The question, however, is whether the appellant should have been convicted of murder or only of culpable homicide It is admitted by the prosecution that the deceased attempted to carry away one of the appellant's sheep and that there was a scuffle between him and the appellant after, .the sheep had been dropped by the deceased. There is direct evidence of what happened except the appellant's own oral statement made to Muhammad Hayat to the effect that the deceased had taken a sheep and that he had rescued it from him and given him hatchet blows by which be died. Thus on his statement the appellant had clearly not only the right of private defence of property but also of defending his person F against a possible attack by the thief. He undoubtedly caused a large number of injuries but several of them were on the arms and hands which show that the man must have engaged in a fight and none of the injuries, with the possible exception of one, was grievous. It cannot, therefore, be held either that the killing was pre-meditated or that the injuries were caused with the primary intention of causing the death irrespective of any attempt to defend property or person. In view of the excessive damage caused, however the offence committed was one under section 301 (Part 11) and not under section 302 of the Penal Code. We, therefore, set aside the conviction of murder, substitute for it a conviction under section 304 (Part 11) and reduce the sentence from death to seven years' rigorous imprisonment.

Conviction altered

A.H. Sentence reduced.

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