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Criminal Appeal No. 300 of 1958, decided on 4th March, 1960.
Confession‑-Extra‑judicial‑Basis for conviction if found voluntary and true‑‑Test‑Evidence Act (I of 1872), S. 24.
In law, there is no difference in the evidentiary value of a judicial confession duly recorded under the relevant provisions of the Criminal Procedure Code, 1898 and an extra judicial confession, the Evidence Act, 1872 does not draw any distinction between the two from that standpoint. In either case, it is a relevant fact under the provisions of the Evidence Act, to be taken into account by a Court in coming to a finding whether the alleged offence against the accused is proved or not. If the Court believes the confession to be voluntary and true, not tainted by any of the circumstances mentioned in sections 24 to 26 of the Evidence Act, there can be no legal impediment to its being treated as a safe basis for convicting the accused although as a matter of caution and prudence Courts must look for an independent corroboration of the confession in material particulars.
2. Hagg. Cons. 315 and Wigmore's Evidence S. 866 ref.
The real question in a case, where an extra‑judicial con fession comes for examination and acceptance, is as to what is the character and evidentiary value of the confession The answer to this will depend on the proof available in a case, in the context of its entire circumstances, to prove its voluntary nature and the truthfulness of its contents. This will include an examination of the background of the events leading to the confession, the mental equipment of the confessor, the respectability of the persons who have come forward to prove it and the extent to which their word can be accepted. Another point to be considered in case of verbal confessions would be to ascertain the exact words used by the confessor, on which his guilt is made to hang.
In case of an extra‑judicial confession, the Courts have to weigh the evidence very carefully to find out how and in what manner an accused person has chosen to convict himself out of his own mouth and if the evidence is discrepant and inconsistent, a suspicion creeps in about the genuineness and the veracity of that confession and in such a case it is not safe to base conviction thereon.
Shamim Hussain Kadri for Appellant.
G. M. Mirza for A. G. for Respondent.
Dates of hearing : 2nd, 3rd and 4th March 1960.
This is an appeal by Muhammad Shafi, a young lad, aged between thirteen and fourteen years, against his conviction under section 302, Pakistan Penal Code, and a sentence of transportation for life. The charge against him was that he had, on the 7th of September 1957, put to death Riaz, a boy aged between sixteen and seventeen years, by strangulating him.
2. The grandfather of Muhammad Shafi appellant named Shah Nawaz is a real brother of Noor Muhammad (P. W. 6) father of the deceased, Riaz. There was thus a family tie between the appellant and the deceased and they were in addition, class‑mates, studying in the same school In Chak No. 148/9‑L situated at a distance of six miles from their home village. Besides, they were living in the same ahata in Chak No. 56/E.B. as neighbours, their respective houses being divided by a common wall. There was apparently no indication of hostility or ill‑feeling between the two.
3. According to the prosecution case, the deceased with his brother on one cycle and the appellant with his own brother on another cycle left for their school on the morning of the 7th of September 1957. The cycle of Riaz got punctured on the way and all the four returned home. Later the same day, i e., on the 7th of September 1957, the deceased was in his field with his parents when the appellant came and took Riaz with him in order that both of them should cut grass in a nearby field belonging to the appellant's father. As Riaz did not return home till late in the evening, his parents got anxious and Noor Muhammad P. W., his father, went out in search for him. At first he went to the appellant's house, where he learnt that the appellant had also not returned. Daood, the appellant's father, also joined Noor Muhammad in search for the missing boys. They searched for them in Montgomery and Cheechawatni and then went over to Lyallpur in Chak No. 219, village Ganda Singh, to the house of Shah Nawaz grandfather of the appellant and real brother of Noor Muhammad P. W., where they found Muhammad Shafi appellant, but not Riaz. It is alleged that Muhammad Shafi was wearing a chaddar belonging to the deceased, which the latter had taken with him, while going with Muhammad Shafi from his father's field. On the enquiry of Noor Muhammad as to where Riaz was, the appellant at once replied that he had killed him. The appellant was then brought back to his village, Chack No. 56 E. B., and taken to the dera of the Lambardar, Muhammad Din (P. W. 7), where in his presence and that of Abdul Aziz (P. W. 8) the appellant again confessed his guilt of having strangulated Riaz to death in the sugarcane field and burying him there. On the query of the Lambardar, the appellant disclosed the motive of this crime, which was that the mother of the appellant had told him that for several years in the past some one or other of her children had died as a result of witchcraft by the mother of Riaz and further that Riaz used to taunt the appellant that the later's sister Mst. Maqbulan had been caught flagrante delicto with a son of a Maulvi. Later the appellant is said to have pointed out the place to the Lambardar where he had buried the dead body of Riaz after killing him, and wherefrom the dead body was subsequently dug out by the police. The post‑mortem examination of the dead body was conducted on the 12th of September 1957 and the body was found to have a ligature tie around it. The ligature was a fifty‑six inches long cloth of chheet. There was a ligature mark on the neck, 12" x 1". The body was decomposed, naked and full of dust. Death according to the Doctor was due to asphyxia as a result of strangulation.
4. The events, which were recorded in the First Information Report lodged by the father of the deceased, Noor Muhammad P. W., at 4‑0‑0 p.m. on the 11th of September 1957, summed up the prosecution case against the appellant. It described the items of evidence relied upon by the prosecution for the guilt of the appellant and sought to be proved at the trial. These are: (1) the extra‑judicial confession stated to have been made by the appellant before Noor Muhammad, Muhammad Din and Abdul Aziz P. Ws., (2) the alleged recovery from his possession of chaddar Exh. P. 1 belonging to the deceased, (3) pointing out the place by the appellant wherefrom the dead body of the deceased was recovered. To this may be added another factor appearing from the record, viz., the alleged abscondance of the appellant from the village after the occurrence and his detection from his grandfather's house four days later.
5. If we were satisfied that the alleged extra‑judicial con fessions said to have been made by the appellant were voluntary and true, they could legally be made a satisfactory basis for his conviction, although as a matter of prudence and caution we would further look for independent corroboration of the confession in material particulars, which in this case would be supplied by the remaining items of evidence, in case they are found to be reliable and are proved to be genuine. In law, there is no difference in the evidentiary value of a judicial confession duly recorded under the relevant provisions of the Criminal Procedure Code and extra‑judicial confession. The Evidence Act does not draw any distinction between the two from that standpoint. In either case, it is a relevant fact under the provisions of the Evidence Act to be taken into account by a Court under section 3 of the Evidence Act in coming to a finding whether the alleged offence against the accused is proved or not. If the Court believes the confession to be voluntary and true, not tainted by any of the circum stances mentioned in sections 24 to 26 of the Evidence Act, there can be no legal impediment to its being treated as a safe basis for convicting the accused, although as stated above, and as laid down repeatedly in a long line of judicial authorities, as a matter of caution and prudence. Courts must look for an independent corroboration of the confession in material particulars. But that does not rule out the legality of the conviction based on a confession alone, judicial or extra‑judicial once it is held to be voluntary and true, in absolute terms. The real question however is the evidentiary value to be attached to a confession, and to determine its voluntary and true nature which is invariably a difficult task and which has always been a source of headache for the Courts. If found to be voluntary and true, it is, to use the words of Sir William Scott (in 2 Hagg. Cons. 315), perhaps a species of evidence which is highest in the scale. Wigmore, in his classical work on evidence, has touched on this point in the following words :‑
" It is precisely because the confession, if a fact, is so weighty and produces such a close approach to complete persuation, that we are inclined to hesitate and demand the most satisfactory testimony before we accept that as a fact which, if believed, will practically render other evidence superfluous. (Section 866) ".
The real question, then, in a given case, where an extra‑judicial confession comes for examination and acceptance, is as to what is the character and evidentiary value of the confession The answer to this will depend on the proof available in a case, in the context of its entire circumstances, to prove its voluntary nature and the truthfulness of its contents. This will include an examination of the background of the events leading to the confession, the mental equipment of the confessor the respect ability of the persons who have come forward to prove it and the extent to which their word can be accepted. Another point to be considered in case of verbal confessions would be to ascertain the exact words used by the confessor, on which his guilt is made to hang. In the case in hand, applying these tests to the alleged confessions of the appellant, we have formed the view that it would not be safe to accept the alleged extra judicial confession of the appellant as having been made voluntarily and as representing a true account of the occurrence. We have not found it easy to believe that this raw boy had without any hesitation, confessed his guilt before the father of the deceased in the very first instance without having been frightened or cajoled into that situation. According to the evidence of Noor Muhammad P. W., after the admission of his guilt before P. Ws. Noor Muhammad and Daood, his own father, the appellant was straightway brought to the dera of the Lambardar, Muhammad Din P. W., where he confessed his guilt again. According to the evidence of Muhammad Din, the father of the deceased, i.e., Noor Muhammad, had at first stated to the Lambardar that his son had been killed by the appellant and the appellant then affirmed the same giving further . . . . the reasons and details of his crime. This shows that the appellant's production and confession before the Lambardar coincided with the pre‑supposed belief and firm declaration of the appellant's guilt by the father of the deceased. In a case of an extra judicial confession, the Courts have to weigh the evidence very carefully to find out how and in what manner an accused person has chosen to convict himself out of his own mouth and if the evidence is discrepant and inconsistent, such as we find in this case, a suspicion creeps in about the genuineness and the veracity of that confession. In this case, we find ourselves confronted with the same position and the young age of the boy adds to our reluctance to believe that he had single‑handed strangulated the deceased and then buried him in a dug out ditch. The disparity in the ages of the appellant and the victim is a factor against the prosecution, which was tried to be met by the learned counsel for the State, by drawing our attention to the fact that Riaz had a dislocated arm and was thus was unable to put up any resistance. But this point does not help the prosecution in crossing the hurdle as according to the evidence, the dislocation of the arm of the deceased had taken place a fortnight before the occurrence and he was at the time of occurrence attending to all his normal avocations including the cycle rides to his school.
6. The fact that the appellant was last seen with the deceased before the latter's disappearance is not of great consequences in this case. They were constant associates and their being seen together was nothing extraordinary to furnish an incriminating circumstance. Again the alleged recovery of a chaddar belonging to the deceased from the person of the appellant is not free from an element of doubt, because the chaddar is a common place article and it is not shown to have borne any exclusive half‑mark as the property of the deceased. The evidence of Abdul Salam (P. W. 4) led by the prosecution to prove the identity of this chaddar as belonging to Riaz, on this statement that he had sewn it for him, does not at all advance the prosecution case. The alleged recovery of the dead body from the place on the pointing out of the appellant is supported by the same evidence that as produced to prove the extra judicial confession, which we have not felt persuaded to accept.
7. The fact that the appellant was not found in the village, but was discovered in the house of his grandfather four days later on a search made by his father and Noor Muhammad P. W., is not necessarily inconsistent with his innocence in this crime. It was alleged in the First Information Report that the appellant had stolen some money from his house and had run away. He may have gone away from the house to avoid the school drudgery and to enjoy himself for a while with the stolen money, without having had anything to do with the alleged crime. But his disappearance from his house with the money, coinciding with the murder of Riaz, may have led everyone to suspect foul play by him.
8. Obviously these items of circumstantial evidence are by themselves not sufficient for conviction. Even if they were to be accepted as true, they could have at the best furnished corroboration of the alleged extra judicial confessions of the appellant which form the mainstay, of the prosecution case. But as we have not found it easy to believe them, the very foundation of the prosecution case is undermined.
9. The guilt of the appellant being not free from doubt, we give him the benefit of that doubt and acquit him. He shall be released forthwith if not wanted in any other case.
K.B.A. Appeal accepted.
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