' GUL MUHAMMAD KHAN, C. J.-The learned Additional Sessions Judge, Bahawalpur, camp at Hasilpur, convicted the appellant on the 1st of September, 1985 on her confessing the commission of an offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordimance, 1979 and sentenced her to three years' R. I. With whipping numbering 30 stripes and a fine of Rs, 1,000. In default of payment of fine she was to suffer 6 months' R.
1., further. She has challenged that order through the present appeal.
2. The occurrence took place at 5-00 p.m. On the 18th of March, 1984 in `basti Faridun', Hasilpur.
Ranjha, a brother of the present appellant lodged a report with Rao Akbar Ali, Inspector, Police Station, Hasilpur, on the 22nd of March, 1984 at 10-30 a.m. It was alleged therein that he left his sister, the present appellant, aged 17/18 years alone in the house. When he came back after doing his job he found her missing. He searched her here and there but in vain. At about 6-00 p.m.
Muhammad Hussain and Noor Hussain told him that they had seen her going, alongwith the co- accused All Sher, towards Hasilpur.
3. Mst. Bakhan was recovered by Muhammad Aslam, A. S. I. P. W. 4 in the presence of Muhammad Ismail, P. W. 6 on the 25th of March, 1985 from a house owned by Abdul Haq and taken on rent by All Sher co-accused. She was medically examined on the same day by lady doctor Razia Begum, P. W.
10, who found no marks of violence on her person. After examination she opined that she had not been subjected to sexual intercourse. The prosecution, however, challaned the case.
4. The trial Court charged the two co-accused under sections 16 and 10 (2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. All Sher pleaded not guilty but the present appellant confessed her guilt. She was, therefore, convicted and sentenced, as stated above.
5. So far as Ali Sher co-accused is concerned the prosecution examined 10 witnesses but excepting Muhammad Ismail, P. W. 6 and Muhammad Aslam, P. W. 4 nobody supported the prosecution case.
Even these two witnesses deposed only about the recovery of the two accused from the house of Abdul Haq. None of them saw the two accused committing offence but stated that they had represented themselves as husband and wife. Ali Sher was, however, acquitted by the trial Court.
6. It is contended by the learned counsel that as the present appellant had given birth to a child only a day earlier i,e, 30th of August, 1985 and she was not in a correct state of mind, therefore, any confession made by her may not have been taken as true and reliable. This question of fact is sought to be supported by a certificate produced now with the grounds of appeal. It is further submitted that the evidence produced against the co-accused did not prove the commission of offence and so the appellant is also entitled to acquittal on the same basis of doubt as allowed in the case of Ali Sher.
7. We have heard the learned counsel for the parties and are of the view that normally no appeal would be competent in such a case in view of the contents of section 412, Cr. P. C. However, to maintain conviction of the present appellant in a situation, where the co-accused had been acquitted. Will whittle away the confidence of the people in our judicial system, particularly, when the offence in question could be committed by the two jointly and not alone by any of the accused.
We therefore, take up this case under Article 203-DD of the Constitution in the interest of justice.
The unambiguous case of the prosecution was that the offence has been committed by the present appellant and the co-accused Ali Sher. The evidence produced showed that there were no marks of violence on her private parts or elsewhere of Mst. Bakhan. The vaginal orifice showed two old tears. The examinee was not virgin. The vaginal swabs according to the report Exh. P. G. Of the Chemical Examiner, were not stained with semen and the lady doctor opined that no sexual act was committed. According to the prosecution the appellant had been away with Ali Sher only for about seven days. So, even if they lived together as husband and wife for all the seven days or on any one of these days and cohabited, the test of the vaginal swabs should have been positive. That is not the case here and so the commission of sexual intercourse is not proved.
8. The only evidence produced against the two accused was that they were recovered together from a house and that they posed as husband and wife. The offence with which they were charged was not about the impersonating as husband and wife but for illicit intercourse. That is nowhere proved. We have also gone through the confessional statement of the appellant which reads as under :- "Q. Have you heard the charge against you ? A. Yes.
Q. Do You plead guilty ? A. Yes."
' The plea of guilty was made under section 265-E, Cr. P. C., the secular procedural law in force. The equivalent of this provision (i,e, section 271 as now deleted) has been considered by Courts in a number of cases. A plea of guilty is an admission of all the facts on which the charge is founded as well as admission of guilt in respect of them. Therefore, an admission which does not admit all the elements of the charge is not a plea of guilty to the charge unless the accused distinctly admits each and every fact necessary to constitute an offence. Reference be made to the case of Ramaswa mi (1). The Patna High Court in Shyam Cheran v. Emperor (2), held that a plea of guilty under section 271 is not a confession such as it dealt with in the Evidence Act in respect to relevance or irrelevance. It is a statement which if accepted by the Court amounts to a waiver on the part of the accused of trial, in which alone a confession might be utilized in evidence. The same view was taken in the case of Abdul Qadir (infra) with the addition confession ought not to be recorded in such a case.
9. As given above the appellant only gave a brief reply of 'yes' to the composite charge which was meant for both the accused. The record does not show that the charge was explained to the appellant though it is stated in the judgment that it was explained. It is also not clear if the appellant had a counsel or she had the opportunity to consult one. In any E case, the mere utterance of word 'guilty' was not regarded as a plea of guilt which the Court is bound to record. It was held in Abdul Qadir v Empero (3), that it is desirable to record a complete statement of the accused to find out what he exactly means by pleading guilty. The Court further
(1) AIR 1954 Mad. 1020 (2) AIR 1934 Pat. 330 (3) AIR 1947 Born. 345 observed in the above case that the Court must ascertain that the accused knew what he was doing and the consequences thereof and that there should be a medical report or medical evidence upon him. The present case is covered by this observation as the appellant also claims to be not in a fit statement of mind on the day she answered the charge.
10. In any case, it was not obligatory on the Court of Sessions to accept the plea of guilty irrespective of the fact whether the accused had fully understood the charge and the implication of the plea. The present section 265-E, equivalent be section 271 reads as under :- "265-E.-(1) The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make.
(2) If the accused pleads guilty, the Court shall record the plea, and may in its discretion convict him thereon."
This provision shows that while recording of plea of guilty is a mandatory provision the passing of order of conviction is discretionary. The discretion under section 265-E(2), Cr. P. C., it is long established shall be exercised in favour of the accuse I in cases of murders. However that should be more so in the cases where an offence can be committed only jointly by two persons and one of them has pleaded not guilty. In that situation the Court shall only be of finding out whether the two named accused had committed the offence and it will be unfair if one of them has already been punished. In that situation the punishment already awarded to one of them will be not for the offence but for an utterance which may be proved later to be untrue and incorrect in respect of the other accused. This has in fact happened in the present case, as, stated above.
11. Thus for we have discussed the old secular law. However, it is the Islamic law which must govern the field now. We have, therefore, ventured to look at the case in the light of Islamic law to decide it.
According to Abu Hanifa and Ahmad four times confession is necessary for a proof of the offence of Zina. The view is based on the tradition that when Maaiz Ibne Malik came to the Holy Prophet (p.b.h.) and confessed that he had committed Zina, the Holy Prophet (p.b.h.) turned his face away from him. The Holy Prophet (p b.h.) turned his face even on the 2nd and 3rd confession. However, only on his 4th confession he ordered punishment. This tradition ha3 been related by many `Mohaddisin'. It is further stated by Abu Barza on the authority of Abu Bakr that the Holy Prophet (p.b.h.) warned Maaiz that if he repeated his confession for the 4th time, the punishment will become due.
12. Shafie and Malik do not subscribe to this view and treat one confession as sufficient. Their view is also based on the tradition of the Holy Prophet (p.b.h.) as narrated by Abu Huraira and Zaid bin Khalid and also called `Hadith-e-Aseer saying, "Oh Unais! Go to that woman and if she confessed stone her to death." Apparently, the words four times is missing here. It is also possible that by that time the term confession had a known significance to say that culpable confession meant repeating four times. Abdullah-al-Qurtabi quotes in his "Decisions of the Holy Prophet (p.b.h.)" page 41 translation published by Adbistan Lahore, 1962 from Moata Imam Malik that a Bani Aslam came to Abu Bakr and stated that he had committed Zina. Abu Bakr asked him if he had told anyone else about it but he replied in the negative. Abu Bakr then advised him to be repentant and pray for mercy from Almighty Allah and not to divulge it to any one else. The man was not satisfied and so he approached Umar but got the same reply from him also. Still dissatisfied he went to Holy Prophet (p.b.h.) and repeated his guilt. The Holy Prophet (p.b.h.) turned his face every time, he repeated his plea. On his insistence for four times, the Holy Prophet (p.b.h.) inquired if he was insane or sick. The report was that he was quite alright. The Holy Prophet (p.b.h,) then inquired if he was married or unmarried. After getting a reply that he was married he ordered that the man be stoned to death. The same incident is quoted from 'Sahib. Bukhari' and 'Abu Daud' also.
13. Some decisions of Ali are reported in 'Abu Turab' published by `Idara Ulum Ahle-Bait 12/B, Shad Bagh, Lahore. At page b3 the subject reported is about confession. According to Sheikh Saddiq a man came to Ali and said that he tad committed Zina and, therefore, punishment of `Hadd' be imposed on him. Ali turned his face on him and asked him to sit down He then turned his face to the audience and remarked why do not the people keep quiet and pray for forgiveness when an offence is committed by them. The same man again stood up and prayed that he be purged from the sin of Zina he committed. Ali inquired why did he say so ? He replied for the object of being purged. Ali told him there was nothing better than penitence ; then diverted his attention from him and started talking to others. The man again stood up with the same prayer. Ali asked him if he could read Qur'an ? He replied in the affirmative. Ali asked him to recite a few verses which he read well. Ali then asked him if he was mindful of the duties, Allah had imposed on him, to which he again replied in the affirmative and explained some. He then asked him if he was suffering from pain or disease or was annoyed with some one. He replied in the negative. Ali then asked him to go away and not to come back till he was summoned, so that he could make some secret inquiries in the meanwhile. The inquiries confirmed that the man was neither sick nor out of senses. The man again showed up and made the same prayer. Ali said "Go back never to return but if you do come again the punishment will become due".
14. Similarly is the case of a woman. Ali inquired if she was married to which she replied, yes. He then inquired if she was there on a voyage, she affirmed. He asked her if she was pregnant to which she greed. He then ordered her to go away and come back after giving birth to the child. She re- appeared after childbirth and prayed for being purged. Ali pretending that he did not know about the case asked her all the previous questions again and asked her to feed the child with her milk for two years and then come back. After she had gone so far that she could not hear him, Ali thought loudly that she already had two testimonies against her. The woman returned after two years and repeated the prayer. Ali asked her all the questions from the beginning again and she replied as before. Ali sent her back again for the reason that the child was not yet old enough so that he would not fall in a well or fall off a roof. The woman went back disappointed and crying. Ali prayed that she had already amassed three testimonies against her. On the way she met Amar bin Haris. He inquired the cause of her sorrow and she gave the entire account. Amar told her to go back and tell Ali that he (Amar) would take care of the child. Ali repeated all the questions again and she repeated her answers. Ali then observed that there were four testimonies against her and he was obliged to award punishment and could not suspend it as observed by the Holy Prophet (p.b.b.),
15. A similar situation arose in the case of a young man who came to confess that he had committed sodomy. He was also returned, three times but he too re-appeared for the fourth. Ali gave him option of one of the three sentences proposed by him and he selected one of those. The same book cites two instances at pages 167 to 169 in which confession was made but it subsequently turned one to be cases where the guilt had been confessed either due to fear or because of the circumstances in which he found himself, i,e,, expediency. On their retraction of the confession and inquiry their plea was found correct and they were let off. May be it is for this reason that action on a single confession has not been allowed. The single confession has also been equated with one testimony and therefore wherever more than one testimonies are required by a express provision, the stipulated sentence or penalty for it cannot b imposed unless the confession is repeated for the required times. This is so stated in "Fatawa-e-Alamgiri". There is further stipulation tha confession in one sitting is to be taken as one even though repeated number of times and that the confessor should be taken out of the sight o the Qazi before he re-appears for making another. Please see: `Kitabal Fiqh Alal-mazahifil Arba by Abdul Rahman Aljaziri, Volume 5 (Chapte Confession of offences).
16. The following principles are derivable from the above discussion :- "(1) The confession must be made without fear, promise or pressur and it is the duty of the Qazi to be satisfied about it.
(ii)In order to ascertain, the above, the Court must allow the accused, time, opportunity and to have legal advice and must also explain the legal consequences of confession.
(iii) The Court must verify that the man is not sick or insane and is in fit state of mind.
(iv) The confession must be made four times and at different sittings so that the accused is out of the sight of the Court and away fro the Police or parties' pressure before coming back for subsequent confessions."
17. It may also be noted that the ultimate aim of the Islamic Law correction and reformation and heavy punishment is only for incorrigible cases. In chapter Maida (5:39) {{URDU TEXT}} it is laid down that whoso repenteth after his wrong doing and amendeth, Allah will relent towards him. Lo!
Allah is Forgiving, Merciful." There is also a saying of the Holy Prophet (p.b. b.) that one who repents is as he had never committed any sin. In the incident of Maaiz also it is said that on hearing that he ran away while he was being stoned, the Holy Prophet (p.b.h.) observed why did not people leave him alone and he might have repented Allah may have forgiven him. Again, in cases where the guilt is not fully established the benefit must be given to the accused.
18. In view of the above, we find that the conviction recorded as against the appellant should not be maintained for the simple reason firstly, that the so-called confession was not only inoperative but also stands retracted further. There is no evidence on the record showing that the sexual intercourse had been committed. It is the case of the prosecution that she was away from her home for about a week and was staying with Ali Sher in the hired house. The lady doctor's report and the report of the Chemical Examiner, however, showed that no sexual inter course took place.
The confession was thus not true. Even the co-accused has been acquitted and no further proceedings were taken by the State against him.
12. The net result is that we allow this appeal, set aside the conviction and sentences and direct that the appellant shall be set at liberty forthwith unless she is wanted in any other case.