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Criminal Appeal No. 203 of 1976, decided on 25th February, 1980.

(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 21‑a‑1976 in Criminal Appeal No. 138 of 1975).

‑‑ S. 30‑Confession‑Corroboration‑Corroboration must emanate from a document complete in itself and not in need of support from any other quarter‑Confession of co‑accused though could be taken into consideration yet same could not be treated as a corroboratory fact‑Confession of co‑accused, unlike testimony of accomplice, held, of no corroborative value same being not given on oath nor subjected to cross‑examination‑‑Apart from retracted judicial confession other evidence existing, confession of co‑accused in such case however, held, a relevant fact under S. 30, Evidence Act, 1872. [Confession].

Laxman Jairam and another v. Emperor A I R 1937 Bom. 31 ; Mohammad Ramzan v. The State P L D 1957 Lah. 956 ; Wazir and others v. The State P L D 1960 Kar. 674 and State v. Minhu alias Gul Hassan PLD1964 S C 813 ref,

‑‑‑ S. 27‑Words "weapon of offence" instatement of investigating Police Officers reading "both the accused at this place told me that the dagger weapon of offence, was kept by them in the house of "‑Held : Confessional and liable to be excluded under S. 27, Evidence Act 1872.‑[Confession].

‑‑ S. 8‑Previous conduct of accused‑Act of accused in picking up dagger from under a, box‑An act relevant as a piece of conduct under S. 8, Evidence Act, 1872.

‑‑‑ S. 8‑Previous conduct of account‑Fact of accused leading Investigation Officer to a place in consequence of which articles in question secured‑A relevant fact in absence of any evidence to show as to which one of accused instrumental to lead investigating Officer first.

-‑‑ Ss. 8 & 27‑Previous conduct of accused‑‑‑Joint leading by accused to place wherefrom clothes of deceased recovered‑Held : An act to be fastened to each accused as a piece of conduct under S. 8, Evidence Act, 1872, in absence 9f any bar in S. 8 itself‑‑Contention that joint recoveries not acceptable as pieces of corrobo ratory evidence, such evidence being not evidence of conduct‑Held: not correct and such piece of evidence to be judged on footing of a statement made to a police officer under S. 27, Evidence Act, 1872.‑[Recovery].

Faqira and others v. Emperor A I R 1929 Lah. 665; Rafiqueuddin Ahmed and others v. Emperor A I R 1935 Cal. 184 and Monir's Com mentary on the Law of Evidence, 1974 Edn., p. 62 ref.

‑‑ Ss. 8, Explanation I & 27‑Line to be drawn between admissibility of statements made to police officer leading to recovery of incrimi nating articles and statements accompanying and explaining facts 'Thin‑Courts, held, zealous to guard against admission of state ments amounting to confession even though accompanying and explaining acts‑Section 8, hence, to be read subject to Ss. 25, 26 & 27, Evidence Act, 1872.

‑‑ Ss. 8, Explanation I & 27‑Statements leading to discovery of incriminating articles‑Must be precise‑Fact discovered at behest of two persons‑Clear indication to exist as to who gave informa tion first, either by words or gestures so as to fasten discovery of incriminating articles with his conduct in terms of Explanation I to S. 8‑Distinction however, to be drawn where without making a statement an accused leads to a place where he discarded articles and such articles recovered upon search‑ Accused's leading to such place, held, amounts to an act relevant under S. 8 as a piece of conduct.

Emperor v. Nanua A I R 1941 All. 145 and Ganu Chandra Kashid v. Emperor 33 Cr. L J 396 ref.

‑‑ S. 164‑Confession, recording of‑Time for reflection‑Courts, though by way of abundant caution, holding sufficient time to be given to accused for reflection yet such not to be pressed into service as invariable practice‑No hard and fast rule existing to pre scribe time for reflection and inference as to sufficiency of time for reflection to be drawn from facts of each case‑All incriminating articles collected before 4th February, 1975, a day after arrest of both accused, and accused being willing to confess their confessions recorded on 4th February, 1975‑Time given for reflection in such context, held, cannot be regarded as insufficient.‑[Confession].

Sadiq Muhammad Warraich, Advocate for Appellants.

M. Qasim Imam, Advocate‑on‑Record for the State.

Date of hearing : 25th February, 1980.

‑This appeal, by special leave, arises from the judgment of the Peshawar High Court, Peshawar, dated 21st April, 1976, by which the convictions of the appellants under section 302 read with section 34, P. P. C. and the capital punishment awarded them along with the fine were confirmed.

According to the prosecution, Mst. Mardia lodged a report on 30th January, 1975, at 13‑00 hours at Police Station, Swabi about the disappear ance of her husband. On the next day she learnt from the rumours afloat that a dead body was lying buried in the area of Maneri Bala upon which she proceeded to that place and identified it to be that of her husband although it was badly eaten by the wild animals. She, with the help of the others, brought the dead body from there to Police Station Swabi at 7.40 p. m. on 31st January, 1975, and lodged the F. I. R stating therein that her deceased husband, Ilyas Khan, after taking Rs. 400, left the house in the morning of the previous Saturday (25th January, 1975) for Peshawar to purchase "Saaz" for the horse of his Tonga but had not returned from there nor did he send any information about his arrival upon which she became apprehensive of his well‑being and made a search for him and later discovered the dead body which she had brought to the Police Station. She specifically stated that her husband had no enmity with any one.

On the next day Malik Muhammad Khan, S. H. O. (P. W. 11), saw blood on the front seat of the Tonga which was standing in front of the house of the deceased which was collected. Later, the S. H. O. secured a chaddar and chappal of the deceased from Pir Jamal who had picked them up from the bed of a dry canal of Gohati. A "Patrey" of the handle of a dagger was also secured from the dry nala. The appellants were arrested on 3rd of February, 1975, who led the S. H. O. to Maneri Khawar where they had washed the Tonga and discarded the clothes of the de ceased and from a place at a distance of 100 yards from there a torn shalwar and a piece of the front portion of the shirt of the deceased were secured. Appellant Gul Jamal thereafter led to the recovery of a revolver and four cartridges, which he had with him at the time of murder from the kotha of hujra of one Mughal Baz. Then both the appellants led the S. H. O. to the house of Ghulam Qadir from where appellant Gul Jamal picked up the blood‑stained dagger alongwith its case from under a box, which were taken into possession. The S. H. O. also seized the clothes of the appellants, which appeared to be blood stained. On 4th February, 1975, they volunteered to confess and their confessions were duly recorded by Mian Javed Shah (P: W. 7), a Ist Class Magistrate. The autopsy of the dead body disclosed as many as 15 incised injuries on his person.

At the trial the appellants resiled from their confessions giving the reason that they were tortured for two days in the lock up at Police Station, Swabi and on the third day they were produced before a Magistrate who took their thumb‑impressions on some papers. .

The trial Court rejected the objection relating to the confessions as having been obtained as a result of torture and inducement by the S. H. O. The trial Court also did not find any substance in the submission that the Magistrate had recorded the confessions of the appellants while they were together. The trial Court further found that proper warning was given to the appellants before their confessions were recorded and they were also duly informed that they would not be remanded to Police custody after their confessions were recorded. In regard to the defence plea that the confessions were not true as only four dagger blows were mentioned in the confession of Ali Baz whereas the deceased had suffered 15 such injuries, the trial Court reconciled this inconsistency with the confession of Gul Jamal in which only the word "blows" was mentioned without giving their number and concluded that this contradiction would not be sufficient to throw away their confessions as there was ample corroboration to sustain their truthfulness. In this behalf the trial Court relied on the seizure of the dagger, the Patrey of the handle of the dagger, the recovery of the clothes of the deceased from the Maneri Khawar at the behest of the appellants, the pointing out of the spot where the appellants had burried the deceased and the blood stained cut pieces of the front seat of the Tonga. The trial Court next found corroboration of the retracted con fessions from the incised injuries suffered by the deceased. In regard to the objection that Sher Muhammad and Ghulam Muhammad were stock witnesses of the police and. therefore, their veracity was doubtful, the trial Court held that they were Nambardars and in their cross‑examination nothing of any consequence was elicited to show their bias towards the appellants and, therefore, there was no reason for them to falsely allege against the appellants. Accordingly, the trial Court held that the prosecution had proved its case beyond doubt against the appellants and they were, therefore, convicted under section 302 read with section 34, P. P. C. and sentenced to death and also to pay a fine of Rs. 1000 each which, if recovered, should be paid to the heirs of the deceased. On appeal and reference, the High Court upheld the aforementioned conclusion.

Before the High Court it was contended on behalf of the appellants that the confessional statements could not form the satisfactory pieces of evidence for their convictions and as for the recoveries allegedly made at their behest, these were inadmissible in evidence. As for the latter submission reliance was placed on section 27 of the Evidence Act as joint recoveries militated against this provision. It was further submitted in this connection that certain portions of the statements of the appellants were admitted in evidence, which did not distinctly lead to the recovery of a fact, therefore, those portions could not be taken into consideration as they were hit by this provision. In regard to the first contention the High Court held that the two confessions, being voluntary and true, one could be taken into consideration against the other under section 30 of the Evidence Act. The High Court further found corroboration of these confessions from the blood collected from the front seat of the tonga which was found standing in front of the house of the deceased having the same blood group of the deceased and the dagger which was used for causing the incised injuries. As to the joint statements made to the S. H. O. which led to certain recoveries, the High Court held that the joint statements leading to the recoveries were inadmissible under section 27 of the Evidence Act and so also the portions of those statements which were confessional in nature.

Leave to appeal was granted to consider the question as to whether the retracted confession of one appellant could furnish corroboration to the retracted confession of the other, which involved the interpretation of section 30 of the Evidence Act in regard to which there was cleavage of opinion amongst the High Courts.

The High Court while dealing with the retracted confessions held that both the appellants had given "an identical account of the crime" and that "nothing had been elicited from the cross‑examination of Mian Javed r Shah, P. W. 7, to cast any doubt that their statements were not voluntary"; and further, as both of them had not only tarred themselves with the same brush but also implicated the other without these being any substantial variance in details, therefore, so much of it which incriminated the other in one retracted confession could be taken into consideration against the other at the trial under section 30 of the Evidence Act,

While dealing with this question, Beaumont, C. J., in Lexman Jairam and another v. Emperor A 1 R 1937 Bom. 31 held

But the confession of a co‑accused is not evidence given on oath in the witness box and there is no right of cross‑examination. It is not evidence at all as defined in section‑ 3, Evidence Act, but section 30, provides that:

When more persons than one are being tried jointly for the same offence, and a confession made by one of such person affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

The language of that section is very guarded. It does not say that the confession of a co‑accused, is to be treated as evidence against any one except the confessing party. All it says is that the con fession may be taken into consideration. I think that means merely that it is one relevant fact, which the Court has to consider. But in my view the confession is not strictly evidence against a co -accused, and I am clearly of opinion that a conviction based solely on the confession of a co‑accused would be bad in law."

In Muhammad Ramzan v. The State P L D 1957 Lah. 956 Shabbir Ahmed, J., also pointed out that the confession of a co‑accused can be taken into con sideration against an accused person under section 30 of the Evidence Act though "it is not as strong a piece of evidence as the confession of an accused person himself." This dictum does convey the sense as reflected in the opinion of Beaumont, C. J. Therefore, not being evidence, the confession of a co‑accused implicating the other and vice versa can only be treated as a relevant fact against the other; and as to its corroboratory value, Monir in his book on the Law of Evidence, 1974 Edition, has thus stated at page 365: ‑

" . Similarly, the confession of one co‑accused cannot corroborate the confession of another co‑accused, as against a non‑confessing accused. Tainted evidence is not made better by being doubled in quantity, and when there are two sets of evidence, each requiring w corroboration, one cannot be used to corroborate the other."

This principle was given effect to in Wazir and others v. The State P L D 1960 Kar. 674 after a review of case law and it was held: ‑

"We are clearly of the view that we would be departing from the well established rule of prudence if we were to hold that one piece of weak evidence, itself requiring corroboration, can be used as corroboration of another similar piece of weak evidence. It would be highly unsafe, in fact dangerous, to base a conviction on an aggregation of such weak evidence."

This view was later approved by this Court in State v. Minhun alias Gul Hassan P L D 1964 S C 813 in which it was held: ‑

"The proposition that a retracted extra‑judicial confession cannot corroborate a retracted judicial confession cannot also be assailed where corroboration is found necessary, for, that would amount to utilising of one piece of tainted evidence to corroborate another piece of tainted evidence."

Concluding, therefore, despite the fact that section 30 of the Evidence Ac provides that the confession of a co‑accused can be taken into considera tion still it cannot be treated as a corroboratory fact for corroboration must emanate from a document which is complete in itself and is not in need of support from any other quarter. Accordingly, it has no corroboratory value as unlike the testimony of an accomplice it is not given on oath and is not subject to cross‑examination, though in a given case, if there is other evidence apart from the retracted judicial confession, then by reason of section 30, the confession of a co‑accused implicating the other could be a relevant fact.

Turning now to the question as to whether the High Court, while upholding the convictions and sentences of the appellants, had used the retracted confession of on: appellant against the other, we would point out that the High Court did not rest its opinion merely on the considera tion of section 30 but held the confessions to be independently corrobora ted by two other aforementioned factors.

One of the appellants, namely, Ali Baz, is the brother of the widow of the deceased and the other is his friend. There was pre‑concert, which is evident from their confessions to do away with the deceased for gaining some pecuniary advantage, which the prosecution has otherwise failed to establish. That may be so but the failure on the part of the prosecution would not render its case doubtful as the common version in the confessions. finds ample support from the recovery of the blood stained Chaddar, Chappal, Patrey of the handle of the dagger and one sock which reflect the purpose and the manner in which the deceased was done to death.

In regard to the recovery of the dagger, Naik Muhammad Khan S. H. O., stated: ‑

"Both the accused at this place told me that the dagger, weapon of offence, was kept by them in the house of Ghulam Qadir, sister's husband of Gut Jamal of Maqarab Khan Kothey. On this the accused led me to that house and Gut Jamal picked up the dagger Exh. P. 11, along with the case from beneath the box and which I took into possession vide recovery memo. Exh. P. M. The pointed part of the dagger was bent and I noticed some blood stains on it."

In this statement, the words "weapon of offence" are confessional and liable to be excluded under section 27 of the Evidence Act. Nonetheless, the act of Gut Jamal in picking up the dagger from under the box is an act which independently of the. statement is a relevant fact as a piece of conduct under section 8 of the Evidence Act and can legitimately to taken into consideration against him.

Next, as to the recovery of the torn Shalwar and a portion of the shirt of the deceased, this is what the S. H. O. stated: ‑

....the accused while in Police custody led me to the Khawar known as Maneri Khawar where they allegedly washed away the Tonga and had also allegedly thrown away the clothes of the deceased after he was put to death in the said Khawar. I then in company of the accused and in presence of the marginal witnesses followed the flow of the water and at a distance of about 100 paces, I found the torn Shalwar Exh. P. 7 and a piece of front portion of the shirt Exh. P. 8 both of them were wet at that time, but there appeared some stains of blood on them which 1 took into my possession vide recovery memo. Exh: P. N."

The S. H. O. has not proved the information conveyed to him by the appellants in their own language but what is alleged is the conclusion drawn therefrom by the S. H. O. in his own words. However, both of them led the Police Officer to that place and together followed the flow of the water from where the above articles were recovered. It is the leading to that place in consequence of which the articles were secured which is a relevant fact in the absence of any evidence to show as to whether which one of them was instrumental to lead the S. H. O. first. This act of each appellant will be relevant under section 8, as a piece o conduct.

It was contended that the joint recoveries should not be accepted as pieces of corroboratory evidence for such evidence cannot be regarded as evidence of conduct under section 8, of the Evidence Act. In evaluating this submission, the weight of authorities have judged this piece of evidence on the footing of a statement made to a Police Officer under section 27, of the Evidence Act which leads to the discovery of a fact and for reference sake we may here cite Faqira and others v. Emperor A‑I-R 1941 All. 145 and Rafiqueddin Ahmad and others v. Emperor 33 Cr. L J 396. In this connection it will be of relevant to refer to Monir's Commentary on the Law of Evidence, 1974 Edn., at p. 62 of his book :‑

" ....If, however, two or more persons are alleged to have pointed out a relevant fact, it must be shown who pointed out the fact first ; and if that is not done, the evidence of pointing out will not be admissible against any one of the accused. Where no material fact is discovered, and the accused merely points out places where certain incidents took place the evidence of pointing out will not be admissible. Of course, the fact that the accused produced stolen property or any instrument used in the commission of the offence can always be proved as a relevant fact under, as well as apart from the present section."

The reason for exclusion is not far to seek, for section 27 of the Evidence Act renders a statement admissible if it leads to the discovery of a fact. Similarly, Explanation 1 to section 8 also makes statements, which accompany and explain facts other than the statements also admissible; and since the line to be drawn between the admissibility of these statements under section 27 and Explanation 1 to section 8 is thin, the Courts had been zealous to guard against the admission. of statements which amount to confessions even though they accompany and explain acts and there fore, they have held section 8 to be read subject to sections 25, 26 and 2 of the Act. Further, for drawing the inferential conclusion, the Court have insisted that the statements leading to the discovery of incriminating articles should be precise and if the fact is discovered at the behest of two persons then it should be clear as to who gave the information firs either by words or gesture so as to fasten the discovery of the incriminat ing article with his conduct in terms of Explanation 1 to section 8. However, a distinction has to be drawn where without making a statement an accused leads to a place where he had discarded the articles and upon a search those were recovered. In such a case it would amount to an act, which would be relevant under section 8 as a piece of conduct: and authority is needed, it will be found in the case of Emperor v. Nanua A‑I-R 1941 All. 145 In drawing a distinction between an act and statements, it was held as under: ‑

'Conduct' may in certain circumstances include statements, as well as acts, but in doing so it still retains the difference between an act and a statement. The difference between a statement and an act is in our opinion clear. A statement must consist of words, be they spoken, be they written, or be they spelled out, as would be done by a mute person who spells out words on his fingers, and we are inclined to think that even words would not always be statements as for instance, if a person recited the numbers from 1 to 10, if one considers a statement in the sense used in section 162, Criminal P. C. Acts however exclude words and in our opinion cannot be translated into words. For instance, if a person points out a lace it is impossible to say whether had he spoken he would have said look there' or 'dig there' or 'you will find there .' or 'I have burried there, or I have committed such and such a crime'. We are unable to hold therefore that the facts that in the present case the appellant, by taking in his hands certain articles and handing them over, made a statement much less can we find that he made a statement which amounts to a confession."

In Ganu Chandra Kashid v. Emperor (2) Beaumont, C. J. held: ‑‑‑

"The fact of the production of these sums of money is of course admissible as conduct under section 8 of the Act, and if the fact of production is admissible, then the circumstances in which the production took place are also relevant under section 9."

The cases of Faqira and others v. Emperor and Rafiqueddin Ahmad and others v. Emperor were decided on the premise that the state ments made by the accused persons did not show any particularity as to from whose information the recovery was effected so as to fasten the state ment with the act in terms of Explanation 1 to section 8 and also for the reason as to who was the first to give that statement which led to the recovery of the article as in that eventuality the statement of the other could not be linked with the act as the fact had already been discovered. In these cases, however no distinction was attempted to be drawn between an act simplicitor and the statement accompanying the act and, therefore whatever was said was in the context of the facts of those cases. Here in so far as the seizure of the dagger is concerned, the act of Gul Jamal in picking it up from under the box cannot be excluded for it is a piece of relevant conduct under section 8. Similarly, the joint leading to the place from where the clothes of the deceased were recovered is also an act and we see no reason why it should not be so fastened to each appellant as a piece of conduct under section 8 of the Evidence Act in the absence of any bar in this section itself. The High Court had taken the presence of the blood on the front seat of the Tonga, which was of the same group as that of the blood of the deceased, to substantially corro borate the confessions of both the appellants as they had stated that the first blow was given white the deceased was sitting on the front seat of the Tonga.

Again, the High Court had used the evidence of the recovery of the dagger as against both the appellants but factually it was Gul Jamal who had picked it up from under the box and, therefore, the statement of the other appellant, Ali Baz, could not be linked with the act in terms of Explanation 1 to section 8. This act could only be fastened to Gul Jamal against whom it could be used to corroborate his confession. There cannot also be a doubt as to the dagger being a crime weapon as not only it was blood stained but also a part of its handle, namely the Patrey was secured from the place from where the other articles of the deceased were recovered. However, the High Court failed to take into consideration the seizure of the Patrey as lending assurance to the weapon having been used.

The learned counsel next submitted that the confessions were involuntary as sufficient time was not given for reflection. There is no hard and fast rule to prescribe the time for reflection. It is true that by way of abundant caution, the Courts have held that sufficient time should be given for reflection but that cannot be pressed into service as an invariable practice; It is from the facts of each case that an inference should be drawn as to' whether the time given was sufficient for reflection. In the present case, almost all the incriminating pieces of evidence were collected before the 4th of February, 1975, a day after the arrest of the appellants and as the appellants were ready and willing to confess, their confessions were, accordingly, recorded on the 4th of February, 1975. In this context, the time given for reflection cannot be regarded as insufficient. Therefore, this submission has no force.

The over all consideration of the entire evidence shows not only that the confessions were voluntary, but also that they were true and further they stood corroborated by the pieces of evidence afore‑mentioned.

Accordingly; there is no force in this appeal, which is dismissed.

Appeal dismissed.

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