SARDAR MUHAMMAD DOGAR, J.--Muhammad Shafi and his son Allah Nawaz were tried by the Sessions Judg, Rahimyar Khan, alongwith Haji Ahmad and Din Muhammad brothers of Muhammad Shafi, Siraj Ahmad and Mumtaz Ahmad his other sons, for having committed the murder of Mst.
Sheeman (wife of Muhammad Shall and mother of Allah Nawaz) and Muhammad Farman alias Majnu, on 9-10-1990 at 3-00 a.m. in their house in Basti Luqman Arain, Village Gloor Massu Khan, at a distance of 3 k.m. from Police Station Rukanpur. Nazir Ahmad and Budhu were tried alongwith them for having abetted the crime.
2. Haji Ahmad, Din Muhammad, Siraj Ahmad, Mumtaz Ahmad, Nazir Ahmad and Budhu were acquitted vide judgment dated 31-71-991.
3. Vide same judgment, Muhammad Shafi and Allah Nawaz were convicted under sections 302/34 and 308/34, P.P.C. and sentenced to death as Qisas, for having committed Qatl-i-Amd of Muhammad Farman.
Learned trial Judge had held them guilty on the basis of the following statement, made by Muhammad Shafi, in answer to the question, 'why this case against you and why the P.Ws. had deposed against you?':- "I alongwith my son Allah Nawaz saw both the deceased persons committing sexual intercourse on account of which we lost our self-control and murdered them under grave and sudden provocation. P.Ws. were not present, at the spot. They have falsely deposed against us on account of enmity"; and owned by Allah Nawaz in following terms, while answering the same question:-- "My reply is the same as deposed by my father co-accused Muhammad Shafi in his statement."
Learned trial Judge had treated the said 'answers' of the convicts, as `confessions'.
Although, they were held guilty of having committed Qatl-i-Amd of Mst. Sheeman also, but as according to the provisions of section 306, P.P.C. they were not liable to Qisas, they were directed to pay a sum of Rs.1,70,610 as Diyat, in accordance with the provisions of section 308, P.P.C. read with section 34, P.P.C. The amount on realisation was directed to be disbursed amongst her heirs according to their Sharai shares; excluding both the convicts. they were directed to pay the amount in 3 instalments, within a period of 3 years, failing which they were directed to be dealt with in the manner, provided for failure.
4. The convicts have challenged their convictions through Criminal Appeal No.84 of 1991 (BWP), while learned trial Judge has made reference (Murder Reference 26 of 1991) for confirmation of death sentence.
5. Riaz Ahmad was tried by the Additional Sessions Judge, Bahawalpur, alongwith Muhammad Yar and Pir Bakhsh, for having murdered Muhammad Ramzan alias Gulzar on 14-1-1991 at 4-00 p.m. in their house in Basti Abbas Nagar, at a distance of 2 miles from Police Station Abbas Nagar, District Bahawalpur.
6. Vide judgment dated 3-9-1991, he was convicted under section 302, P.P.C. for having committed Qatl-i-Amd and was sentenced to death as 'Qisas. The other accused tried alongwith him, were acquitted vide same judgment.
7. Riaz Ahmad has challenged his conviction and sentence vide Criminal Appal No.89 of 1991 (BWP).
Learned trial Judge has made reference (Murder Reference No.33 of 1991) for confirmation of death sentence.
Riaz Ahmad was convicted on the basis of the following statement made by him in answer to the question, 'have you anything else to say?':-- "The deceased Ramzan used to loot the honour of my mother. It was a dark night. I awoke at in the night and saw the deceased had already trespassed in our house and was present alongwith my mother in the room of my house for illicit connection. I saw them in objectionable position. I could not control my sentiments and under grave and sudden provocation, I inflicted injuries on the person of Ramzan in our room while my mother had run away from there, during this time. I myself went to the Police Station and informed the Investigating Officer. I produced the weapon there voluntarily. The witnesses were not there as it was about mid-night time, nor were my co-accused with me at that time. I had alone injured the deceased. It is wrongly stated that Ramzan was lifted and injured outside my house or that he had gone out of his house to ease himself. It is also incorrect that it was day light time."
Learned trial Judge had treated the said statement as a 'confession'.
8. Since same point of law is involved in both the appeals and the references, they are being disposed of together.
9. Apart from other changes made in the Pakistan Penal Code, by way of promulgation of Qisas and Diyat Ordinance, a new section 304 was also introduced, which reads as follows:-- "304.--Proof of Qatl-i-Amd liable to Qisas, etc.--(1) Proof of Qatl-i-Amd liable to Qisas shall be in any of the following forms, namely:--
(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O.No.10 of 1984).
(2) The provisions of subsection (1) shall, mutatis mutandis, apply to a hurt liable to Qisas."
It is on the basis of the provisions of clause (a) of section 304 that the appellants before us, were held guilty, convicted and sentenced. The relevant point, therefore, before us, is not, whether there was sufficient evidence on record warranting the maintenance of coviction of the appellants, rather we are required to examine, as to--
(a) whether the statement made by the convicts while answering a question, put under section 342, Cr.P.C. can be treated as `confession'? and
(b) whether the same can be accepted as voluntary and without any duress, as true 'confession'?
10. Confessional statements of the accused were always considered as relevant and admissible in evidence. For that, provision was laid in the Evidence Act of 1872 and later in Qanun-e-Shahadat as well. Provisions in that regard were also laid in the High Court (Lahore) Rules and Orders.
11. Methodology for recording judicial confession was laid under section 164, Cr.P.C. read with section 364, Cr.P.C. The latter contains the instructions and the procedure to be followed by the Magistrate who records the confessional statement. Important features of section 164, Cr.P.C. mentioned in clause 4 of Chapter 13 of Volume III of Lahore High Court Rules and Orders, reads as follows:-- "4.--Some important features of section 164 as it stands, now are:-- (a)Statements or confessions made in the course of an investigation can be recorded only by a Magistrate of the 1st Class or a Magistrate of the second class, who has been specially empowered by the Provincial Government.
(b) Confession must be recorded and signed in the manner provided in section 364.
(c) Before recording any such confession the Magistrate shall explain to the person making it that he is not bound to make a confession, and that if he does so it may be used in evidence against him.
(d) No Magistrate shall record any such confession unless upon questioning the person making it he has reason to beli&Ve that it was made voluntarily, failure to question has been held to vitiate the confession. (ILR 2 Lahore 325).
(e) The memorandum set forth in section 164(3) must be appended at the foot of the record of the confession.
(f) It is not necessary that the Magistrate receiving or recording a confession or statement should be a Magistrate having jurisdiction in the case."
The questions prescribed to be put to the accused by the Magistrate before recording confessional statement are laid in rule 5 of Chap.13 of Volume III. They were elucidated by way of Correction Pamphlet No.26, dated 15-4-1953. They are as under:-- "In the form of confession made by an accused on page 3, Chapter 13 for the existing questions substitute the following:--
(1) Q.--Do you understand that you are not bound to make a omission? A.--
(2) Q.--Do you understand that your statement is being recorded by a Magistrate, and that if you make confession, it may be used as evidence against you?
A.--
(3) Q.--How long have you been in police custody? A.--
(4) Q.--Do you understand that after making a statement before me you will not be remanded to police custody, but will be sent to the judicial lock-up?
A.
(5) Q.--Understanding these facts, are you making a statement before me voluntarily?
A.--
(6) Q.--What are your reasons for wishing to make a statement? A.--
12. Rule 6 of the same Chapter, provides that unless there are exceptional reasons to the contrary, confessions should be recorded in open Court and during Court hours. Police Officers investigating the case should not be present.
13. Clause (A) of Punjab Government Circular Letter No.6091-J3039829 (H-Judl.), dated 19-12-1936, for the guidance of the Magistrates, reads as follows:-- "(a) In order to ensure that a statement or confession under section 164 of the Code of Criminal Procedure is made voluntarily, the following precautions should be taken. Before the Magistrate proceeds to record the confession he should arrange.. .. so far as is compatible with his safety and that of his staff and with the safe custody of the prisoner.. .. that the latter is left for some time (say, for half an hour) out of the hearing of police officers or other persons likely to influence him.
(b) .............
(c) ............."
14.During the period prior to the codification of section 304, P.P.C. clause (a), the Courts have always been critically examining the voluntariness and truthfulness of the 'confession' before placing reliance upon that, for convicting or upholding the conviction of the accused. Reference in that regard can be made to the following precedent cases:-- 15.Confession was defined by their Lordships of the Privy Council in Pakala Narayana Swami v.
Emperor (AIR 1939 Privy Council 47) as follows:-- "A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission.of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession e.g. an admission that the accused is the owner of and was in possession of the knife or revolver which caused a death with no explanation of any other man's possession."
In the case reported as Muhammad Sharif v. The State 1975 PCr.LJ 889, the conviction of the appellant was based on the judicial confession alongwith some other material which was set aside by the learned Judge on having reached the conclusion, that the Magistrate who had recorded the confessional statement had not followed the procedure laid down for recording confessional statement. Learned Judge while coming to the conclusion that no serious attempt appeared to have been made by the Magistrate to find out if the confession was made voluntarily, also observed that it is not satisfaction of the Magistrate who records the confession but it was really the satisfaction of the Court which counted. Learned Judge observed that record of the confession must be so prepared that the Court dealing with such a confession should have no difficulty in finding for itself whether the confession was made voluntarily.
In the case reported as Abdul Haleem v. The State 1984 PCr.LJ 611, their Lordships while discarding the evidence of confession observed that since the Magistrate had not provided enough time to the accused for reflection, before making statement and no assurance was given to him by the Magistrate that he will not be remanded to police custody and that nor the Magistrate had tried to find out whether he had not been maltreated, the voluntary character of the confessional statement was doubtful.
In that case their Lordships had also placed reliance on the following observation of the Supreme Court of India:-- "It is hardly necessary to emphasize that the act of recording confessions under section 164, Criminal Procedure Code is a very solemn act and, in discharging his duties under the said section, the Magistrate must take care to see that the requirements of subsection (3) of section 164, are fully satisfied.
It would of course be necessary in every case to put the questions prescribed by the High Court circulars but the questions intended to be put under subsection (3) of section 164 should not be allowed to become a matter of a mere mechanical enquiry. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused wants to make, is, in fact and in substance voluntary.
The whole object of putting questions to an accused person who offers to confess, is, to obtain an assurance of the fact that the confession is not caused by any inducement, threats, or promise having reference to the charge against the accused person as mentioned in section 24 of the Indian Evidence Act."
Reliance was also placed by their Lordships on the observation of their Lordships of the Supreme Court reported in PLD 1975 SC 187 which reads as follows:-- "The whole object of legal and judicial insistence on the meticulous observance of all the necessary formalities and precautions laid down with minute particularity is to ensure that the confessional statement should be absolutely free from the slightest tinge or taint of extraneous influence such as threat, promise or inducement and the Courts are placed under an obligation to affirmatively satisfy themselves that it is free and voluntary."
The conviction of the appellant in the case reported as Manoo alias Manthar v. The State 1992 PCr.L.J 1963, was set aside on coming to conclusion that judicial confession of the accused could not be relied upon as before recording the same necessary formalities as required under the law were not complied with.
In the case reported as Khuda Bakhsh v. The Crown 1969 SCM R 390 while setting aside the conviction of the appellant, the confession was held to be irrelevant after observing that there are indications that the confessional statement appeared to be tutored and the person making the confession was sent back to the police.
In the case reported as Muhammad Yaqoob v. The State 1992 SCM R 1983, while laying down the principles for assessing the evidentiary value of the confession, their Lordships observed as follows also:-- "Under Islamic jurisprudence, in order to make a confession reliable, it should be voluntarily made and not on account of any coercion, duress or violence."
In the case reported as Said 'Beg= v. The State PLD 1958 (W.P.) Lahore 559, their Lordships observed that the confession was inadmissible as voluntary nature of the same was doubtful due to the fact that the accused had not been warned immediately before recording the statement.
In judgment reported as Ghulam Hassan v. State PLD 1983 FSC 497, their Lordships while acquitting the accused observed that on account of failure by the Magistrate to observe legal formalities before recording confessional statement, the same was rendered inadmissible.
In the case reported as Nazir-ud-Din Ahmad v. The State PLD 1%3 (W.P.) Baghdad-ul-Jadid 10 the statement of one of the appellants i.e. Hafiz Muhammad Abdullah was recorded which amounted to confession. Later, he took up the objection that he had made statement under the impression that he will be tendered pardon and stated that if he was not to be pardoned, he will make another statement with regard to the particulars and the facts. His plea was accepted and the statement made by him which amounted to confession was excluded from consideration on the ground that he had made that statement due to wrong impression.
In the case reported as Dhani Bakhsh v. State PLD 1975 SC 187, their Lordships while deciding the appeal had placed reliance on the observation of the same Court in another case reported at page 813 of PLD 1964. The observation noted therein reads as follows:-- "In the instant case, however, we find that the mode and method of recording the confession of one accused in the presence of the other casts doubt on its voluntariness, which is the basic requirement of law, as also for its appeal to the judicial conscience. The whole object of legal and judicial insistence on the meticulous observance of all the necessary formalities and precautions laid down with minute particularity is to ensure that the confessional statement should be absolutely free from the slightest tinge or taint of extraneous influence such as threat, promise or inducement and the Courts are placed under an obligation to affirmatively satisfy themselves that it is free and voluntary."
Reference was also made in that to the observation reported in (1876) 13 Cox. CC 209 which reads as follows:-- "It is not merely a question as to whom the confession is made or when is made; but it is a matter in which you have to get at the mind of the prisoner, and see whether or not it is probable that the confession was made voluntarily, in the proper sense of the word."
In the judgment reported as Muhammad Naseer v. The State PLD 1988 FSC 58, their Lordships observed that the confession in a case of Zina for the purpose of Hadd sentence must be made four times in four different meetings and the accused should be free from any outside influence, pressure, coercion or duress. Their Lordships observed that the confession must be independent and should be made because of fear of Allah and hereafter in order to earn urge of the fate of the offence.
16. It is worth noticing that language of clause (a) of section 8 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, is almost the same as the language of clause (a) of section 304, P.P.C. For ready reference, the language of the relevant provision of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 is noted below:-- "8. Proof of Zina or Zina-bil-Jabr liable to hadd.--Proof of Zina-bil-Jabr liable to Hadd shall be in one of the following forms, namely:--
(a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or
(b) ....................................."
Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslims."
17. It is obvious from the above judgments that the Courts have always been very keen to see that 'confessions' are only acted upon when they appear to be absolutely voluntary, free of threat or coercion and not under any undue influence.
18. This was the position when although the evidence of 'confession' was accepted to be legal evidence for recording convictions, but there was no codification that a person can be sentenced to death also, merely on the basis of 'confession'. Now, that such a provision has been added, the Courts shall have to guard this requirement with more keenness and consciousness. It will always have to be kept in mind that the 'confession' being made was not only voluntary, free of any pressure or influence but was also not being made under any mistaken belief that some gain will accrue, rather it should appear to have been made because of fear of Allah Taala, and thereafter, for purge of the effect of the offence, as observed by the respected Chief Justice, Federal Shariat Court, who was the author of the judgment reported at page 58 of PLD 1988.
19. The language of clause (a) of section 304, P.P.C., also guarantees that the 'confession' should be 'voluntary' and 'true'. Statements made casually and the answers given to the questions, by way of routine, cannot always be acted upon safely as 'confessions', particularly so when the result is going to be imposition of capital sentence. It is worth noticing that there is improvement of the language used in clause (a) of section 304, P.P.C. over the language used in clause (a) of section 8 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Clause (a) of section 8 of the Zina Ordinance, contains one of the manners of proof of guilt against the accused, who is charged of having committed Zina, while clause (a) of section 304, P.P.C. contains the manner of proof of commission of murder by the accused. Nonetheless, the language of clause (a) of section 304, P.P.C. is far more progressive and careful than that of clause (a) of section 8 of Zina Ordinance. For ready reference, both are being noted below:-- "Clause (a) of section 304, P.P.C.--The accused makes before a Court competent to try the offence a voluntary and true confession of the commision of the offence; Clause (a) of section 8 of Zina Ordinance.--The accused makes before a Court of competent jurisdiction a confession of the commission of the offence;".
Since the legislature itself has laid stress on the words, 'voluntary' and `true', the Courts should adhere to the language strictly, while acting upon that.
20.Section 342, Cr.P.C. does not envisage recording 'confessions' of the accused. In fact the purpose and purport of the section is clear from the language of the section.. The provisions of the said section are meant for enabling the accused to explain any circumstance/circumstances appearing in the evidence against him. Such questions are asked after the witnesses for the prosecution have been examined, and before the accused is called to enter upon his defence. The whole object of section 342, Cr.P.C. is, that attention of the accsued should be drawn to the specific points in the evidence, on which the prosecution claims, that the case is made out against him.
While recording answers to the questions put during the examination under section 342, Cr.P.C. the accused is never warned that if he makes any statement, which may lead or tend to incriminate him, he will have to suffer the consequences. In fact, he is never cautioned even.
21.Out of the cases, in hand, Riaz Ahmad appellant (in Criminal Appeal No.89 of 1991 (BWP)), after being charged under section 302/34, P.P.C. on 11-5-1991, was asked, 'Have you heard the charge against you?'. He got recorded the answer, 'Yes'. He was thereafter asked the question, 'Do you plead guilty to the charge?'. He got recorded the answer, 'No'. It is clear from the said answer that he had no intention to make 'confession'. During examination under section 342, Cr.P.C. he was asked, 'Is it a fact that on 14-1-1991 in the early morning, all three of you, while armed with Lathis, forcibly lifted Muhammad Ramzan deceased with motive to murder him and after taking him in the room of Riaz Ahmed accused, murdered him in furtherance of your common intention?". The answer, he got recorded, was, 'It is incorrect'. The statement which learned trial Judge assumed to be the `confession' of Riaz Ahmad, was, the answer that he had given to the question, `Have you anything else to say?'.
Prior to that he had stated as follows, in answer to the question, 'Why this case against you and why the P.Ws. have deposed against you?'
"The case has been falsely fabricated and the witnesses are liars. They are related to the deceased and are inimical against me."
He had refused to make statement on oath under section 340(2) of the Code of Criminal Procedure, also.
Had he any intention to confess Qatl-i-Amd of Muhammad Ramzan (deceased) he would have pleaded guilty after charge, and would not have been proclaiming that he was.involved falsely in a fabricated case.
22.The appellants in Criminal Appeal No.84 of 1991 (BWP) had also refused to plead guilty after being charged. They had also, during examination under section 342, Cr.P.C. denied that they alongwith their co-accused, had murdered Muhammad Farman alias Majnu and Mst. Sheeman.
Their statements which were taken to be the 'confessions' were the answers, which they had given in answer to to the question 'Why this case against you and why the P.Ws. have deposed against you?" Actually, Allah Nawaz appellant had not even used those words and had only stated that his reply was the same, which his father Muhammad Shall had made.
23.Although, the provisions of section 342, Cr.P.C. do not warrant that the trial Court should warn or caution the accused before his answers are recorded, that if he confesses or admits anything, the same will be used against him, the learned trial Judge in view of the newly-incorporated provisions of section 304, P.P.C., should have warned and cautioned them, if he had the understanding that anything admitted by them, in answer to the question, will be read as 'confession'. The capital sentence, i.e. the sentence of death cannot be awarded so lightly nor can such facts be brought on record casually, which may warrant taking the life of the accused, being tried.
Life is a very valuable and sacred trust and perhaps it is the greatest kindness of Allah Taala, on the earth. It should not be pushed back in any manner, which may appear to be a casual one. All facilities should be provided to enable the accused, to understand as to what he may ultimately have to face, bear or undergo.
24.Here, we would like to refer to a case reported at page 337 of The Criminal Law Journal Reports, Vol. 3, Emperor v. Chinia Bhika Koli (8 Bom. LR 240) in the High Court of Judicature at Bombay (Criminal Appeal No.75 of 1906). In that case, Chinia Bhika Koli was convicted under section 302, P.P.C. and sentenced to death on his having pleaded guilty.
As the judgment is of considerable importance, for the issue/lis before us, and the same is not lengthy either, we are noting the whole of it:-- "JENKINS, C.J.--The accused in this case has been sentenced to death on what is stated to be his own plea of guilty.
It is not in accordance with the usual practice to accept a plea of guilty in a case where the natural sequence would be sentence of death, and so we have felt it our duty in this case to scrutinise the charge with some care to see whether the accused really understood the charge to which he pleaded.
The charge as translated to us is in effect that the accused for the purpose of taking away the ornaments of the deceasesd struck him on the head and thereby committed murder.
A man may plead that he hit some one who thereby died, and that he did it for the purpose of taking away the ornaments of the person injured without necessarily admitting that he committed murder, for murder under the Penal Code requires a certain intention or a certain knowledge.
Under these circumstances we are of the opinion that it is not safe to accept the conclusion of the Sessions Judge and we accordingly send back the case for trial in accordance with law, and for the purpose, we reverse the conviction and sentence."
25. We may mention here that the learned trial Judge had put as many as twelve questions to the accused after he had got recorded his answer as 'Yes' in answer to the question, "Did you kill the boy Amrita in the jungles of Makhmalabad".
We are fully convinced, as a result of the above discussion that conviction of the appellants is not sustainable as the said statements can hardly be termed as 'voluntary' and 'true' confessions' required under clause (a) of section 304, P.P.C. as proof for Qatl-i-Amd, warranting sentence of death by Qisas. The convictions and sentences of the appellants in both the appeals are, therefore, set aside. Their cases are remanded to the respective trial Judges, for fresh trial in accordance with law.
We may observe here, that if the accused choose to make `confessions', the trial Judges may act upon them after recording the same properly and in accordance with law.