MUHAMMAD ILYAS, J: --This judgment shall dispose of the instant appeal, namely, Criminal Appeal No.73/P of 1992 as well as Criminal Revision No.1/1 of 1993, as they arise out of one and the same criminal case which was registered against as many as 11 persons, under subsection (3) of section 10 and sections 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and section 344 read with sections 109 and 34 of the Pakistan Penal Code.
2. The criminal case was decided by Mr. Zia-ud-Din Khattak, Sessions Judge, Abbottabad, by his judgment, dated the 16th September, 1992. The learned Sessions Judge acquitted all the accused except Bilore alias Dilawar who was absconding.
3. Feeling aggrieved by the judgment of the learned Sessions Judge, the State has filed the appeal referred to at the-outset while Abdul Latif, who is complainant in this case, has preferred the aforesaid criminal revision. The said appeal and the criminal revision were admitted to hearing qua three of the acquitted accused, namely, Gulab Hussain, Razzaq and Asad only.
4. One of the arguments raised by learned counsel for the appellant (State) and learned counsel for the petitioner (in the criminal revision) was that the confessional statements made by some of the acquitted accused, namely, Gulab Hussain, Mst. Gul Jan, Mst. Mukhtar and Taj Muhammad before a Magistrate were not taken into account by the learned Sessions Judge while passing the order of acquittal. It was, therefore, prayed by them that the case may be remanded to the learned trial Court with the direction that it shall be decided afresh after taking into consideration the said statements.
5. The above confessional statements were discarded by the learned Sessions Judge on the ground that they were not made before a Court of competent jurisdiction, namely, a Court of Session. In this connection, reliance was placed by him on Mumtaz Khan v. The State (1992 PCr.LJ 412) (Peshawar). It was contended by the said learned counsel that the judgment relied upon by the learned Sessions Judge was based on the dictum of this Court in Muhammad Naseer v. The State PLD 1988 Federal Shariat Court 58 which related to a case of Hadd and not that of Tazir and since the case in hand is a case of Ta'zir the confessional statements recorded by the Magistrate could be taken into consideration. They also cited Gul Munir and another v. The State (1990 PCr.LJ 1878) (Federal Shariat Court) to support their arguments.
6. In reply, it was submitted by learned counsel for the respondents (acquitted accused) that a Court of Session is a Court of competent jurisdiction in each under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the said Ordinance, regardless of the fact that the case is of Hadd or that of Ta'zir and since the confessional statements in question were not taken down by any such Court, they were rightly excluded from consideration by the learned Sessions Judge.
7. Relevant provisions of the said Ordinance are contained in sections 8 and 10 thereof, which make the following reading:-- "Section 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)at least for Muslim adult male witnesses about whom the Court is satisfied, having regard to the requirements of Tazkiya-tul-Shahood that they are truthful persons and abstain from major sins (Kabair), give evidence as eye-witnesses of the act of penetration necessary to the offence: Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslims.
Explanation.--In this section `Tazkiyak-tul-Shahood' means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness.
Section 10. Zina or Zina-bil-Jabr liable to Ta'zir: --(1) Subject to the provisions of section 7, whoever commits Zina or Zina-bil-Jabr which is not liable to Hadd, or for which proof in either of the forms mentioned in section 8, is not available and the punishment of Qazf liable to Hadd has not been awarded to the complainant, or for which Hadd may not be enforced under this Ordinance, shall be liable to Ta'zir.
(2) Whoever commits Zina liable to Ta'zir shall be punished with rigorous imprisonment for a term which (may extend to) ten years and with whipping numbering thirty stripes and shall also be liable to fine.
(3) Whoever commits Zina-bil-Jabr liable to Ta'zir shall be punished with imprisonment for a term which (shall not be less than for years nor more than) twenty-five years and shall also be awarded the punishment of whipping numbering thirty stripes:'
8. It is clear that confession contemplated by paragraph (a) of section 8 is the confession made before a Court of competent jurisdiction. According to section 20 of the said Ordinance, offences punishable thereunder shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the Code of Criminal Procedure. Therefore, a Magistrate is not a Court of competent jurisdiction within the meanings of paragraph (a) of section 8 of the said Ordinance.
Now, when we go over to section 10 of the said Ordinance we find that if in a case of Zina or Zina- bil-Jabr proof in either of the forms mentioned in section 8 of the said Ordinance is not available, the person committing such Zina or Zina-bil-Jabr shall be liable to Ta'zir. Since the confessional statements in this case were not recorded by a Court of Session, this type of evidence is not in the form mentioned in section 8 of the said Ordinance. Therefore, it could not be made use of for inflicting Hadd on the respondents but it could be taken into consideration for imposing Ta'zir on them.
9. In the case of Mumtaz Khan, while holding that in cases under the said Ordinance, confessional statements shall be recorded by a Court of Session, the Peshawar High Court relied upon dictum in the case of Muhammad Naseer, which was decided by a Full Bench of this Court. What was ruled by this Court in Muhammad Naseer's case was that in the case of Hadd, confession made before a Magistrate was not confession as envisaged by section 8(a) of the said Ordinance and, therefore, it could not be taken into consideration in the case of Hadd which was before the learned Full Bench.
Opinion delivered in this regard is to the following effect:-- "As said above, the confession to be effective in respect of Ordinance VII of 1979 must be recorded not by any Magistrate or a Court but by a Court of competent jurisdiction. Thus whenever the law says that the Court of competent jurisdiction it will mean that the Court competent to try and not any other Court or any Magistrate. It will be seen that trial of the offence of Zina has to be undertaken only by a Sessions Court as laid down in the second proviso to section 20 of the Ordinance VII of 1979 and the jurisdiction of a Magistrate has been expressly excluded. Any statement before a Magistrate, therefore, is not a confession under section 8(a) of the Ordinance VII of 1979 and therefore, has no legal effect."
Accordingly, we, with respect, express our inability to agree with the Peshawar High Court that in all cases under the said Ordinance, including those of Ta'zir, confessional statements which can be taken into consideration should be recorded by a Court of Session. To put it differently, a confession needed for a case of Hadd only is required to be recorded by a Court of Session while in a case of Ta'zir confession before a Magistrate can be taken into account as circumstantial evidence if it does not suffer from any other fatal defect.
10. Before proceeding further we would also like to refer to the case of Gul Munir and another, which was relied upon by learned counsel for the appellant. It was decided by a Division Bench of this Court, comprising Abdul Karim Khan Kundi, J. (now Chief Justice, Peshawar High Court) and one of us (Dr. Fida Muhammad Khan, J.). What was laid down in the said case was that if a confessional statement is not recorded by a Court of competent jurisdiction it could be used as evidence in a case other than that of Hadd, not only against the person making it but also against the co- accused at a joint trial. In the case under report, confessional statement recorded by a Magistrate was taken into consideration for awarding punishment of Ta'zir under subsection (2) of section 10 of the said Ordinance as well as on the charge of murder and that of abetment of murder.
Observations in point are as follows:-- " ....It was contended that confession in respect of Ordinance No. VII of 1979 can only be effective if it is recorded by a Court of competent jurisdiction which is a Court competent to try and that the offence of Zina can only be tried by a Court of Session and if a confession is recorded by a Court other than a Court of Session the same cannot be made a basis for conviction of the accused.
Reference was made to Full Bench judgment of this Court published in PLD 1988 FSC 58. However, after going through the judgment we have found that this Court has held that a confession recorded by a Court other than the one competent to try the case is not a confession not within the meaning of section 8(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which pertains to the mode of proof of Zina or Zina-bil-Jabr liable to Hadd that an accused has to make a confession of the commission of the offence before a Court of competent jurisdiction i.e. The trial Court. Herein the judicial confessions were recorded during the course of investigation under section 164, Cr.P.C. And were certified under section 364, Cr.P.C. And since the same were retracted at the trial and the appellants were not prepared to make confessions before the trial Court within the meaning of section 8(1) of the Ordinance as such there could not be imposed a punishment of Hadd on the appellants for the offence of Zina, but, nonetheless, their retracted judicial confessions voluntarily made during the course of investigation can be used as a proof against the person making it and can be taken into consideration as circumstantial evidence against co-accused at a joint trial for the same offence. Reference is made to Article 43 of the Qanun-e-Shahadat, 1984 in support of the view point enunciated above.
This view, is obviously, in line with our thinking disclosed earlier.
11. Now, we would also like to advert to a case reported as Shah Rasool v, Muhammad Zubair and others PLD 1983 Federal Shariat Court 62 which too was decided by a Full Bench of this Court. In the said case, it was argued that if confession made in a case of Zina is retracted no punishment could be awarded on the basis thereof. It was however, held by the learned Full Bench, in the following words, that a retracted confession cannot be pressed in service for awarding the punishment of Hadd but it can be taken into account for inflicting the penalty of Ta'zir:-- It would, therefore, follow that the effect of retracted confession in a case of Hadd is different from the one in the case of Ta'zir.
12. To sum up, we hold that the confession which can be made use of for the purpose of Hadd is not the same which is required in the case of Ta'zir inasmuch as in the first case the confession must be recorded by a Court of competent jurisdiction i.e., a Court of Session but in the second case it is not necessary that it should be recorded by such Court only. In other words, in the case of Ta'zir confession made before a Magistrate can also be taken into account. Similarly whereas a confession, when retracted, becomes redundant in the case of Hadd, it continues to be a piece of evidence in the case of Ta'zir, although in the case of Ta'zir it is for the trial Court to rely upon or discard the retracted confession in the light of the circumstances of, the particular case before it.
13. In view of the conclusion reached by us, in the case of Ta'zir, which is now before us, the learned Sessions Judge could not brush aside the confessional statements of Gulab Hussain and others on the short ground that they were not recorded by a Court of Session. Since their confessional statements constituted material pieces of evidence, which were omitted from consideration by the learned Sessions Judge, we are inclined to accede to the prayer of learned counsel for the appellant and that of learned counsel for the petitioner that the case may be remanded for fresh decision.
14. Resultantly, we accept the instant appeal and the criminal revision, set aside the impugned judgment whereby the respondents were acquitted and remand the case to the learned Sessions Judge with the direction that he shall re-decide it after taking into consideration the aforesaid confessions together with the statements whereby the confessions were retracted and the pleas of coercion, etc. Raised against the confessional statements.
15. As for grant of bail to the respondents till the fresh decision of the case, we leave it to the learned Sessions Judge to pass such orders as he may deem fit, keeping in view the circumstances of the present case and the law.