PLJ 2022 Cr.C. 365
[Lahore High Court, Multan Bench]
Present:
Sohail
Nasir, J.
MOHIB
ALI--Appellant
versus
STATE--Respondent
Crl. A.
No. 13-J of 2014, heard on 1.11.2021.
Pakistan Penal Code,
1860 (XLV of 1860)--
----Ss. 302(b),
364(A) & 376(i)--Conviction and sentence--Challenge to--Nature of crime is
serious and heinous in nature as a girl of 7/8 years was not only committed to
rape but done to death by strangulation--But on this reason alone an offender
cannot be sent to gallows--Emotion, sympathy, empathy and kindness are aliens
during dispensation of justice--For a Judge only principle is to follow is
"Let justice be done though heavens fall--Under High Court Rules and
Orders following questions have been formulated which a Magistrate is bound to
put to an accused under all circumstances for purpose of his satisfaction that
same is being made with free will and consent, without any promise, duress,
compulsion, threat, ill treatment or any other extraneous
consideration--Prosecution itself has confirmed that appellant was arrested
much earlier to 17.01.2011 which means that he remained under illegal
confinement since actual day of his arrest, so on this ground alone confession
has lost its worth--When confession of appellant (PM) was recorded--It was in
complete deviation of statutory provisions and procedure prescribed earlier and
principles settled by apex Court--Criminal appeal is allowed--Appellant is
acquitted from case.
[Pp.
368, 370, 374, 376, 377 & 379] A, B, C, E, F & H
Confession--
----A volunteer confession by accused always remained an
important consideration for apex and higher Courts of country. [P.
374] D
False Confession--
----According to National Registry of Exonerations, 27% of
people in registry who were accused of homicide gave false confessions, and 81%
of people with mental illness or intellectual disabilities did same when they
were accused of homicide--Most of cases having evidence of confession are
failed when brought in Court on various reasons. [P. 379] G
Mr. Abdul Samad Ali and Mr. Muhammad Ilyas Jamil, Advocates
for Appellant.
Mr. Muhammad Laeeq-ur-Rehman Khan, ADPP for State.
Nemo for Complainant.
Date of hearing: 1.11.2021.
Judgment
Mohib Ali (appellant) had faced trial in case FIR No. 437
(PA/1) recorded on 01.12.2010 under Sections 302/34, PPC at police station
Sadar District Rajanpur on the complaint of Habib-ur-Rehman (Pw-6)
for the allegations of commission of rape and Qatal-e-Amad[1]
of Javeria (aged 7/8 years). During investigation Section 376-A, PPC was also
added. On conclusion of trial vide judgment dated 28.11.2013 passed by
the learned Additional Sessions Judge Rajanpur,
he was convicted and sentenced as under:-
(i) Under
Section 302(b), PPC imprisonment for life and to pay Rs. 100000/-(one
lac) as compensation to the legal heirs of deceased in terms of Section 544-A,
Cr.P.C. In default of payment of compensation he was ordered to further undergo
six months SI.
(ii) Under
Section 364-A, PPC imprisonment for life.
(iii) Under Section 376(i), PPC imprisonment for life
and fine of Rs. 50000/-(fifty thousand). In default of payment of fine, he was
ordered to further undergo 6 months SI.
2. All the sentences were ordered to
run concurrently. Benefit of Section 382-(B), Cr.P.C.[2]
was also extended to appellant. It is important to mention here that as
appellant was Juvenile[3]
so trial was conducted by the learned Sessions Judge as Juvenile Court whereas
his co-accused Qasim Ali was tried by the same Court in its ordinary
jurisdiction. It will not be out of context to refer here that Qasim Ali was
acquitted from the case.
3. Facts of the case are that on 01.12.2010 Muhammad Sharif
Sub-Inspector (Pw-9) on receipt of information of this occurrence
arrived in the area of Asni where Habib-ur-Rehman (Pw-6) made a
statement (PA). He maintained that Javeria aged about 7/8 years was her
daughter; on 30.11.2010, when in the evening he returned to his house his
daughter was missing; search was started and announcement was also made from
the loudspeakers of the mosque but of no consequence; on the second day
(01.12.2010) at about 07:30 am he along with Abdul Qadir (Pw-7)
Bilal (not produced) and others during search, when arrived at the graveyard,
they found the dead body of Javeria; there was strangulation around her neck
with her Shalwar[4]
and also blood on her private part of the body.
4. After endorsement, Muhammad Sharif SI sent the complaint to
police station on the basis of which FIR (PA/1) was recorded by Zafar Hussain
SI (Pw-1).
5. Appellant was arrested on 17.01.2011. During investigation,
according to prosecution, appellant made a confession before Mr. Irfan Ahmad
learned Magistrate (Pw-11). In the process of investigation also
Abdul Qadir (Pw-7) and Bilal claimed that in the evening of
30.11.2010 they had seen the appellant and his co-accused Qasim Ali where
Javeria was also present and they were giving a fruit (guava) to her. On the
basis of said material the report under Section 173, Cr.P.C. (Challan) was
submitted in Court.
6. A charge under Sections 302/364-A/376(ii)/34, PPC was framed
against appellant which he pleaded not guilty and demanded his trial.
7. In support of its case prosecution had produced Zafar Hussain
SI/author of FIR (Pw-1), Dr. Muhammad Rizwan (Pw-2),
Asghar Ali/draftsman (Pw-3), Khalil Ahmad HC/Moharrar (Pw-4),
Khalid Hussain/Constable (Pw-5), Habib-ur-Rehman/complainant (Pw-6),
Abdul Qadir (Pw-7), Ghulam Akbar/Constable (Pw-8),
Muhammad Sharif SI/IO (Pw-9), Lady Doctor Mah Jabeen (Pw-10)
and Mr. Irfan Ahmad Magistrate (Pw-11).
8. Bilal Hasani being unnecessary was given up by the learned
Assistant District Public Prosecutor, who after producing the report of
Chemical Examiner (PM) had closed the prosecution’s evidence.
9. In his examination made under Section 342, Cr.P.C., version
of appellant was as under:
“It is an unseen
occurrence. No PW had seen the occurrence. PWs are related inter se so they are
interested witnesses and they have deposed against me falsely only to
strengthen the prosecution case. My maternal uncle (Mamoo) Sarwar is
brother-in-law of complainant. I am an orphan and only the bread winner of my
family including three sisters. Master Faiz father of prosecution witness Bilal
Hasani had demanded the hand of my sister for his son prior to the occurrence
but I had refused to give the same, so they had grudge against me and falsely
involved me in this unseen occurrence”
10. Appellant opted not to produce defence evidence or to
appear in terms of Section 340(2), Cr.P.C.
11. Both learned counsel for appellant
jointly contend that it is a case of circumstantial evidence based on weak
testimony of Abdul Qadir (Pw-7) therefore, conviction of
appellant cannot sustain. They further add that so-called confession of
appellant is suffering from serious infirmities and illegalities which under no
circumstance can be a base for conviction of appellant.
12. On the other hand, learned ADPP in an emotional manner
maintains that a girl of 7/8 years of age was not only committed to rape but
murdered without any sin, so the appellant deserves no leniency; there was no
enmity whatsoever of the private witnesses with the appellant, hence question
of false involvement does not arise; Abdul Qadir (Pw-7) who had
seen the appellant and his co-accused with the deceased on 30.11.2010 in the
evening is a credible witness and his testimony cannot be thrown out of
consideration; prosecution on the strength of qualitative evidence was
succeeded to prove its case beyond reasonable doubt who has been rightly
convicted by the learned trial Court. Learned ADPP finally maintains that the
learned trial Court by not awarding normal penalty of death has already taken a
lenient view in favor of appellant.
13. HEARD.
14.
I am conscious of the fact that the nature of crime is serious and heinous in
nature as a girl of 7/8 years was not only committed to rape but done to death
by strangulation. But on this reason alone an offender cannot be sent to
gallows. Under all circumstances the basic principles cannot be compromised
that this is the duty of prosecution to prove its case beyond reasonable doubt;
the evidence produced by prosecution must be credible and reliable having the
ring of truth; case cannot be decided on the basis of surmises and conjectures;
weak and infirm evidence must lose its worth particular when it is a case of
capital charge and that the maxim “Justitia nemini neganda est” (Justice
is to be denied to nobody) is the basic consideration while deciding a case.
15. It also reminds me an article[5]
‘Heart vs. Head: Do Judges Follow the Law or Follow Their Feelings”
by Andrew J. Wistrich, Jeffrey J. Rachlinski and Chris Guthrie (United States
of America). This Article explores the question whether feelings about litigants
also influence judges’ decisions. Some of the important abstracts are as
under:-
i. United
States Circuit Judge Jerome Frank[6]
asserted that “Mr. Prejudice and Miss. Sympathy are the names of witnesses,
whose testimony is never recorded, but must nevertheless be reckoned with in
trials by jury.
ii. Sympathy
and empathy in the jury box can be defended as softening the sometimes sharp
edges of our legal system. Judges, however, are supposed to make reasoned
decisions based on the facts and the law rather than on the basis of sympathy
or empathy for litigants.
iii. Judicial oaths require Judges to put their feelings towards
litigants aside.
iv. Equating
empathy with partiality, Senator Charles Grassley[7]
asserted that “the most critical qualification of a Judge is the capacity to
set aside one’s own feelings so that he or she can blindly and dispassionately
administer equal justice for all.
v. Asked
about the proper role of a Judge during her Senate confirmation hearing, United
States Supreme Court Justice Sonia Sotomayor[8]
responded “Judges can’t rely on what’s in their heart. ... It’s not the heart
that compels conclusions in cases. It’s the law.”
vi. Judge
Michael Boggs[9]
testified before the Senate Judiciary Committee “the comforting part about
being a Judge is that the law should prevail in each and every case. Sympathy
or empathy for the party has no role.”
vii. The idea that one
set of rules applies to the sympathetic litigant and another set applies to the
unsympathetic litigant is not consistent with the rule of law.
viii. An Ohio[10]
appellate Judge expressed deep sadness for “the tragic loss of life the case
presents” but then added that “when I put on the robe as Judge, I must not let
my feelings, my emotions ... influence my review and application of the law. (State
v. Cutts, July 22, 2009, Hoffman, J, concurring).
16.
Emotion, sympathy, empathy and kindness are aliens during the dispensation of
justice. For a Judge the only principle is to follow is "Let justice be
done though the heavens fall".[11]
This principle signifies the belief that justice must be realized regardless of
consequences.
17. The Honorable Supreme Court of Pakistan in Naveed
Asghar’s case[12]
on the question of heinousness of a crime was pleased to hold that:
“The ruthless and
ghastly murder of five persons is a crime of heinous nature; but the frightful
nature of crime should not blur the eyes of justice, allowing emotions
triggered by the horrifying nature of the offence to prejudge the accused.
Cases are to be decided on the basis of evidence and evidence alone and not on
the basis of sentiments and emotions. Gruesome, heinous or brutal nature of the
offence may be relevant at the stage of awarding suitable punishment after
conviction; but it is totally irrelevant at the stage of appraising or
reappraising the evidence available on record to determine guilt of the accused
person, as possibility of an innocent person having been wrongly involved in
cases of such nature cannot be ruled out. An accused person is presumed to be
innocent till the time he is proven guilty beyond reasonable doubt, and this
presumption of his innocence continues until the prosecution succeeds in
proving the charge against him beyond reasonable doubt on the basis of legally
admissible, confidence inspiring, trustworthy and reliable evidence. No matter
how heinous the crime, the constitutional guarantee of fair trial under Article
10A cannot be taken away from the accused. It is, therefore, duty of the Court
to assess the probative value (weight) of every piece of evidence available on
record in accordance with the settled principles of appreciation of evidence,
in a dispassionate, systematic and structured manner without being influenced
by the nature of the allegations. Any tendency to strain or stretch or
haphazardly appreciate evidence to reach a desired or popular decision in a
case must be scrupulously avoided or else highly deleterious results seriously
affecting proper administration of criminal justice will follow. It may be
pertinent to underline here that the principles of fair trial have now been
guaranteed as a Fundamental Right under Article 10-A of the Constitution and
are to be read as an integral part of every sub constitutional legislative
instrument that deals with determination of civil rights and obligations of, or
criminal charge against, any person”
18. On the touchstone of above said principles now I proceed to
examine the evidence produced by the prosecution. Statement of
Habib-ur-Rehman/complainant (Pw-6) has already been referred in
the opening paragraphs of this judgment, where he did not disclose any clue
whatsoever about any of the assailants. In the same document/complaint names of
Abdul Qadir (Pw-7) and Bilal Hasani were also mentioned who
associated the complainant for the search of his daughter.
19. In witness box both Habib-ur-Rehman and Abdul Qadir made
material improvements in their statements. Habib-ur-Rehman in his
examination-in-chief stated as under (relevant lines only):-
“I also informed
Abdul Qadir and Bilal PWs telephonically about missing of my daughter. They
came to my house in the evening on the same day. Above named PWs informed me
that they had seen the deceased in the company of Mohib and Muhammad Qasim
accused present in Court who were giving her guava fruit. Then we went to the
accused persons and inquired about deceased. They disclosed that they had left
deceased near graveyard”
20. In cross-examination he was duly confronted by defence and
it was established that the reproduced lines were result of improvements.
21. Perusal of statement of Abdul Qadir (Pw-7)
also makes it clear that he, too, changed his story and by improving maintained
as under:-
“About two years
back on 30.11.2010 at about 3:30 pm when I was residing in Qasba Asni, I along
with Bilal (PW) were present at a shop in the said village when we saw
Mohib Ali and Qasim Ali accused persons present in Court taking away Mst.
Javairia daughter of the complainant while giving her guava fruit. We returned
back home and after about 1½ hours came to Rajanpur. I received telephone call
from Habib ur Rehman complainant just before Maghrib prayer time that her
daughter Mst. Javairia deceased was missing. Then we returned back to Asni and
started search of deceased and got an announcement in the loud speaker of
mosque. Then I along with Habib ur Rehman complainant went to Mohib Ali and
Qasim Ali accused persons present in Court and inquired about deceased. They
disclosed that they had left the deceased near the graveyard”
22. The question of improvement by
a witness came for consideration before the apex Court in Syed Muhammad
Shah’s[13]
case and it was held that:
“Secondly, statements of
the witnesses in the Court in which improvements are made to strengthen the
case of the prosecution are not worthy of reliance. It is held in the case of
Amir Zaman v. Mehboob and others (1985 SCMR 685) that testimony of witnesses
containing material improvements are not believable. Reference can also be made
to the cases of Haji Bakhsh v. The State (PLD 1963 Kar. 805), Qaim Din and
others v. The State (1971 P Cr. LJ 229) and Fazla and another v. The State (PLD
1960 Lah. 373)”
23. Again on same question in Sardar
Bibi’s case[14]
it was held that:
“As doctor, while
conducting post-mortem examination, declared that the deceased persons received
bullet injuries hence for the first time during trial, Falak Sher and Sikandar
were shown to be armed with 30 bore pistol and Munir being armed with 7mm
rifle. This willful and dishonest improvement was made by both the witnesses in
order to bring the prosecution case in line with the medical evidence. In the
FIR the complainant alleged that fire shot of Falak Sher hit Zafar Iqbal
deceased on his chest and the fire shot of Sultan Ahmed accused also hit on the
chest of deceased Zafar Iqbal. According to doctor, there was only one fire-arm
entry wound on the chest of the deceased Zafar Iqbal. In order to meet this
situation, witnesses for the first time, during trial made omission and did not
allege that the fire shot of Sultan hit at the chest of Zafar Iqbal, deceased.
So the improvements and omissions were made by the witnesses in order to bring
the case of prosecution in line with the medical evidence. Such dishonest and
deliberate improvement and omission made them unreliable and they are not
trustworthy witnesses.”
24. Same view also finds support from Muhammad Arif’s case.[15]
25. If Abdul Qadir and Muhammad Bilal Hasani had joined
Habib-ur-Rehman on the same day i.e. 30.11.2010, started search and both
they told that they had seen the assailants and deceased together, why this
important fact was not unveiled by Habib-ur-Rehman when he made the statement
(PA) to Muhammad Sharif SI? It is important to refer here that by no stretch of
imaginations in his statement, Habib-ur-Rehman maintained that he made any
telephone call to Abdul Qadir and Muhammad Bilal and they associated him on
30.11.2010 but what was claimed that both the witnesses came to him in the
morning of 01.12.2010.
26. In view of above, the worth,
veracity, credibility and reliability of Habib-ur-Rehman and Abdul Qadir are
completely smashed.
27. The prosecution therefore, is
left only with the confession (PM) made by appellant.
28. Before I discuss and appreciate
the merits of the confession, I will like to refer the relevant provisions of
law and principles settled on this subject by the apex Court.
29. Section 164, Cr.P.C. and the
Rules and Orders of the Lahore High Court, Lahore Volume III and Chapter 13 are
directly related to recording of a confession. Under Section 164, Cr.P.C.:-
i. Power to record confession lies with a Magistrate of the
First Class and any Magistrate of the Second Class specially empowered.
ii. It can be recorded in the course of an investigation, or at
any time afterwards before the commencement of the trial.
iii. It shall be recorded and signed in the manners provided in
Section 364, Cr.P.C.
iv. The Magistrate is under a statutory duty that before recording
any confession he shall explain to the accused that he is not bound to make a
confession and if he does so it can be used as evidence against him.
v. The Magistrate shall record confession only if he has reason
to believe that it is being made voluntarily.
30.
Under the High Court Rules and Orders the following questions have been
formulated which a Magistrate is bound to put to an accused under all
circumstances for the purpose of his satisfaction that the same is being made
with free will and consent, without any promise, duress, compulsion, threat,
ill treatment or any other extraneous consideration.
Q. No. 1. Do you understand that you are not bound to make a Confession?
Q.No. 2. Do you understand that your statement is being recorded by
Magistrate, and that if you make a Confession, it may be used as evidence
against you?
Q.No. 3. How long have you been in Police custody?
Q.No. 4. 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?
Q.No. 5. Understanding these facts are you making a Statement before me
voluntarily?
Q.No. 6. What are your reasons for wishing to make a Statement?
31. It must be noticed that above
are the minimum number of questions and there can be no deviation however, if
the answers are of such a character as to require a Magistrate to do so, he can
put such further questions as may be necessary to enable him to judge whether
the accused is acting voluntarily. So the entire exercise is to ensure that
what an accused wants to say that is the volunteer voice of his conscious, mind
and heart. It must not be ignored also that before a 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 out of the hearing of Police Officer or other
persons likely to influence him.
32.
A volunteer confession by accused always remained an important consideration
for the apex and higher Courts of the country. In “Azeem Khan’s case[16]
the principles reinforced by the apex Court are as under:-
i. Before
recording confession and that too in crimes entailing capital punishment, the
recording Magistrate had to essentially observe all the mandatory precautions
(laid down in the High Court Rules and Orders).
ii. Fundamental
logic behind the same was that, all signs of fear uncalculated by the
investigating agency in the mind of the accused were to be shed out.
iii. Accused was
to be provided full assurance that in case he was not guilty or was not making
a confession voluntarily then in that case he would not be handed over back to
the police.
iv. Sufficient
time for reflection was to be given after the first warning was administered.
v. At the expiry
of such time, recording Magistrate had to administer the second warning and the
accused shall be assured that now he was in the safe hands.
vi. All police
officials whether in uniform or otherwise including Naib Court attached to the
Court must be kept outside the Court and beyond the view of the accused.
vii. After
observing all these legal requirements if the accused person was willing to
confess then all required questions as formulated by the High Court Rules and
Orders should be put to him and the answers given, be recorded in the words
spoken by him.
viii. Statement of
accused should be recorded by the Magistrate with his own hand and in case
there was a genuine compelling reason then, a special note was to be given that
the same was dictated to a responsible official of the Court like Stenographer
or Reader and oath shall also be administered to such official that he would
correctly type or write the true and correct version.
ix. Accused shall
be sent to jail on judicial remand and during this process at no occasion he
shall be handed over to any police official/officer whether he was Naib Court
wearing police uniform, or any other police official/officer because such
careless dispensation would considerably diminish the voluntary nature of the
confession made by the accused.
33. By applying the law and principles referred above, it is to
be appreciated that if the evidence of confession in this case meets the
required standards or short of it? First of all it is to be seen that whether
appellant was arrested on 17.01.2011 as claimed by Muhammad Sharif SI (Pw-9)
or the position was otherwise? Statement of Habib-ur-Rehman/complainant (Pw-6)
shows that he had seen the appellant in police custody first time after 4/5
days of the occurrence that means by or before 05.12.2010 appellant was with
the Investigating Officer. Even Abdul Qadir (Pw-7) in cross
examination categorically replied that appellant was arrested on the day of
recovery of dead body.
34.
In view of above, prosecution itself has confirmed that the appellant was
arrested much earlier to 17.01.2011 which means that he remained under illegal
confinement since the actual day of his arrest, so on this ground alone the
confession has lost its worth.
35. For the sake of arguments, if it is presumed that appellant
was arrested on 17.01.2011, even then the prosecution has multiple barriers to
cross. First time appellant was produced before the learned Magistrate (Mr.
Irfan Ahmad) on 18.01.2011 with a request (DB) by the Investigating Officer to
record his confession and surprisingly the learned Magistrate passed a unique
order which is as under:
“The police has
requested for recording statement of accused person under Section 164, Cr.P.C.
Upon queries of this case it appears that accused person is under some pressure
and influence. The request of recording statement under Section 164, Cr.P.C
will remain pending and the same would be decided when the accused person would
be produced in this Court on the next of hearing”
36. Again, on 22.01.2011, appellant was produced by Muhammad
Sharif SI (Pw-9) with similar request (DC) before the learned
Duty Magistrate (Mr. Muhammad Ashraf) and again an astonishing order passed was
as follow:
“Since, accused is
in police custody, therefore, keeping in view this aspect he is directed to
engage his counsel to proceed further, in this request of the police for the
statement of accused under Section 164 Cr.P.C. At the same time notice to
co-accused be issued for four days”
37. Story further goes on, when on 26.01.2011 third time
Investigating Officer brought the appellant (DD) before the learned duty
Magistrate (Mr. Muhammad Ashraf). Even this time better sense did not prevail
and following order was passed:
“It is fresh
request of local police to record the statement of accused person under Section
164, Cr.P.C. It is further noted that on 22.01.2011 Investigating Officer was
directed to produce co-accused person before the Court, but, he has failed.
Keeping in view this aspect he is further directed to arrest co-accused person
and produce before the Court on 31.01.2011, after that this request shall be
entertained”
38. Before reverting to the final day when confession was
recorded, I want to observe that the learned Magistrates one after the other
committed serious illegalities while passing the orders (ibid) on the
repeated requests of the Investigating Officer. On the very first day
(18.01.2011) when the appellant was produced before the learned Magistrate (Mr.
Irfan Ahmad), he was supposed to proceed in the manners as prescribed under
Section 164, Cr.P.C. read with the relevant Rules and Orders of this Court.
After formulating the questions and taking their answers, he could declare that
appellant was seeming to be under pressure and in that eventuality he/learned
Magistrate was not supposed to return his custody to the Investigating Officer
but to send him to Jail and to call him again at an appropriate date according
to his own satisfaction so as to find out that still there was or not any
pressure or influence on appellant? In any case even thereafter, appellant had
to be sent to Jail and no authority was vested with the learned Magistrate to
hand over his custody to the Investigating Officer. Similarly, the learned duty
Magistrate could not adjourn the matters by assigning so-called reasons for the
arrest of co-accused, issuance of notice to him or asking the appellant to
engage an Advocate. If the first learned Magistrate committed illegality, at
least second learned Magistrate (Duty) on 22.01.2011 and 26.11.2011 could do
the right instead of following the same illegality made by him and the first
learned Magistrate.
39.
Let’s forget what was done in past and come to the point that what happened on
31.01.2011, when the confession of appellant (PM) was recorded. It was in
complete deviation of the statutory provisions and procedure prescribed earlier
and the principles settled by the apex Court. The leaned recording Magistrate
(Mr. Irfan Ahmad) committed following illegalities:-
i. At
the time of alleged confession Muhammad Sharif SI was present inside the Court.
ii. The
questions as formulated under the High Court Rules and Orders were not put to
appellant.
iii. Appellant was not asked that since when he was in police
custody.
iv. The
question that said confession if made can be used against appellant was not
asked from him.
v. The
question that if appellant wanted to make confession voluntarily is also
missing.
vi. No
oath was taken from the Stenographer who under the dictation recorded questions
and answers as well as the order with regard to satisfaction of the learned Magistrate.
vii. There is no mention that handcuffs of appellant were removed
before he was called upon for his confession.
viii. Not a single minute was given to appellant to reconcile and to
give a second thought before he had to make the confession.
ix. The
confession was recorded on Oath.
40. Whatever has been referred above,
it takes me to a definite conclusion that the evidence of confession could
never be a base for conviction of appellant and the same has been wrongly
believed by the learned trial Court.
41. It is said that confession
evidence is powerful but flawed. Mr. Saul M. Kassin[17]
in his research (Confession Evidence Commonsense Myths and Misconceptions) [18]
about false confession has shared his experience as under:-
“Confessions
have been proven false in a numbers of ways, for instance, when it turns out that
no crime was committed, the real perpetrator is found, or the confessor’s
involvement was physically impossible. Whatever the mechanism, although the
prevalence rate is unknown, false confessions occur with some degree of
regularity. In Europe, 12% of prisoners, 3% to 4% of college students, and 1%
to 2% of older university students reported that they have confessed to crimes
they did not commit (Gudjonsson, 2003). In North America, police investigators
recently estimated that 4.78% of innocent people confess during interrogation
(Kassin et al., 2007). Within the recent population of post conviction DNA
cases, roughly 25% contained confessions in evidence--a sample that represents
the tip of a much larger iceberg (Drizin & Leo, 2004; Gross, Jacoby, Matheson,
Montgomery, & Patel, 2005; Scheck, Neufeld, & Dwyer, 2000)”
42.
Mr. Erin Blakemore in Washington Post[19]
(June 23, 2019) had reported that according to the National Registry of
Exonerations,[20] 27% of
people in the registry who were accused of homicide gave false confessions, and
81% of people with mental illness or intellectual disabilities did the same
when they were accused of homicide.
43. Even in Pakistan the situation is
not less than worst. Most of the cases having the evidence of confession are failed
when brought in the Court on various reasons. Maimoona Rafique Advocate in her
article[21]
(False Confession: A Cause of Wrongful Convictions in Pakistan) has written:
“According
to research, the untrained investigator feels they have a sixth intuition about
suspect guilt and deceits leading them to mistakenly believe the false
confessions they get are real. Furthermore, the unethical or prejudiced
investigator has an improper mentality when it comes to the interview. They are
convinced that the suspect is guilty. As a result, they don’t think the suspect
is talking the truth until he or she confesses; everything else is considered a
lie and treated as such”
44. Referring United Kingdom she further wrote that even in
that jurisdiction, about 25% of the suspects make the false confession due to
the pressure of police, techniques they haven’t know, or even they were not
aware by the law that they are not bound to answer they may remain silent. Many
of the accused confessed and become convicted and afterward they become to know
that those convicted persons were just an innocent person.
45.
Ending the discussion made above, this criminal appeal is allowed.
Impugned judgment dated 28.11.2013 is set aside. Appellant
is acquitted from the case. He is in custody and shall be
released forthwith if not required in any other case.
(A.A.K.) Appeal allowed