BJS Preparation Series : Comprehensive Analysis of The State v. Mukhtar Ali and Others: Confession and Evidence in Criminal Law- by Judge Nazmul Hasan-Part-II

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 BJS Preparation Series

Case Law on Criminal Laws

Question: Can two accused persons be convicted mainly on their own retracted confessions, and can one confession support the other? Discuss it with relevant case law.

Answer:

1. Case Header

Item	Details
Case Name	The State v. Mukhtar Ali and Others
Court	Dhaka High Court
Citation	10 DLR (1958) 155
Nature of Case	Jury Reference
Reference No.	Jury Reference No. 10 of 1957
Judges	Rahman and Khan, JJ.
Decision	Reference rejected; acquittal upheld

2. Related Acts and Sections

Act	Section	Relevance in the Case
Evidence Act, 1872	Section 5	Used in discussing what facts/evidence may be considered by the court
Evidence Act, 1872	Section 21	Confession/admission is relevant against the maker
Evidence Act, 1872	Section 30	Main issue of the case; whether confession of one co-accused can be used against another
Evidence Act, 1872	Section 114	Presumption regarding accomplice evidence needing corroboration
Evidence Act, 1872	Section 145	Used for contradicting witnesses with previous statements
Pakistan Penal Code	Section 302	Charge of murder
Pakistan Penal Code	Section 34	Common intention
Code of Criminal Procedure	Section 307	Sessions Judge made reference to High Court after disagreeing with jury verdict

 

3. Subject of Law Related to the Case

This case mainly deals with:

• evidentiary value of a retracted judicial confession

• use of one co-accused’s confession against another co-accused

• whether confession of one accused can corroborate confession of another accused

• limits of a reference against a jury verdict

• distinction between question of fact and question of law

In simple words, the case asks:

Can two accused persons be convicted mainly on their own retracted confessions, and can one confession support the other?

 

4. Background

Three persons were tried for murder under sections 302/34 of the Pakistan Penal Code before a Special Jury. The jury unanimously found all of them not guilty.

The Sessions Judge accepted the acquittal of one accused, but he disagreed with the jury regarding Mukhtar Ali and another accused. He thought the jury’s verdict was unreasonable and referred the matter to the High Court under section 307 of the Code of Criminal Procedure.

So, the High Court had to decide whether the reference was valid and whether the confessions were enough to overturn the jury’s verdict.

 

5. Facts in Brief

• The deceased, Abdur Rahman, was sleeping at night on the verandah of his house with his two wives.

• It was alleged that during the night he was murdered by a severe cut on the throat.

• One of the accused, Mukhtar Ali, had also allegedly been sleeping nearby on the same verandah.

• The next morning, Mukhtar Ali himself went to the police station and lodged the first information.

• Initially, the investigating officer did not suspect the accused.

• About 17 days later, suspicion arose.

• One accused, Naimuddin, allegedly led the police to a bush and produced a blood-stained dhasha.

• Human blood was found on the dhasha.

• Both Mukhtar Ali and Naimuddin made judicial confessions before a Magistrate.

• Later, at the Sessions trial, both accused retracted those confessions.

• There was no direct eye-witness to the murder.

• Therefore, the prosecution case mainly depended on the retracted judicial confessions and some surrounding circumstances.

 

6. Points Raised by the Petitioner

Here, the petitioner side was the State / prosecution.

The main points raised were:

1. The jury verdict was perverse and unreasonable.   The Sessions Judge believed that the jury wrongly refused to rely on the confessions.

2. Both confessions were very similar.   Since the confessions matched on date, time, and place, they should have been accepted as true and voluntary.

3. Confession of one co-accused could support the other.   The Sessions Judge relied on section 30 of the Evidence Act and argued that one confession could corroborate another.

4. There was independent corroboration.   The State’s lawyer further argued that:

• Naimuddin’s confession was supported by the recovery of the blood-stained dhasha from a hidden place known to him.

• Mukhtar Ali’s confession was supported by the fact that he lived in the homestead and would know where the weapon was kept.

1. There was motive.   The prosecution alleged that Mukhtar Ali had a motive because of the deceased’s alleged illicit relationship with his mother.

So, the State argued that the confessions were voluntary, true, and sufficiently supported by surrounding facts.

 

7. Points Raised by the Respondent

Here, the respondent side was the accused persons.

Their main arguments were:

1. One retracted confession cannot corroborate another retracted confession.   This was the central defence argument.

2. Section 30 does not make co-accused confession full evidence.   It only says the court may take it into consideration. It does not say it becomes substantive evidence against another accused.

3. Retracted confession is weak evidence.   A conviction based only on such confession is unsafe.

4. The prosecution story had serious doubts.   For example:

• no eye-witness to the murder

• contradictions in witness statements

• doubtful motive evidence

• suspicious circumstances about how the murder occurred

• absence of blood stains on the wives though they were sleeping beside the deceased

• uncertainty about mud marks on the deceased’s knees

• improbability that the deceased would not make any sound during such a violent attack

1. Recovery evidence was also doubtful.   Witnesses did not fully support the prosecution version regarding arrest and recovery of the weapon.

2. This was mainly a question of fact for the jury.   Since the jury had already taken one possible view of the evidence, the Sessions Judge should not have made a reference merely because he personally disagreed.

 

8. Court’s Decision

The High Court rejected the reference.

It held that:

• the confession of one co-accused cannot be used to corroborate the confession of another co-accused

• section 30 of the Evidence Act does not make such confession substantive evidence against another accused

• in a case resting mainly on retracted judicial confessions, the issue whether those confessions are true and voluntary is largely a question of fact

• that question was for the jury to decide

• therefore, the Sessions Judge should not have made a reference merely because he disagreed with the jury’s view

As a result:

• the unanimous verdict of not guilty was accepted

• the accused were acquitted

• the Court directed that they be released forthwith, if not required in any other case

 

***9. Ratio Decidendi

The ratio decidendi of the case is:

1.     A confession of a co-accused is not substantive evidence against another accused.   Under section 30 of the Evidence Act, it may only be taken into consideration in a limited way.

2.     One co-accused’s confession cannot legally corroborate another co-accused’s confession.   This is especially true where both confessions are retracted.

3.     Retracted judicial confession is a weak type of evidence and should be used with great caution.

4.     Where the issue is whether a retracted confession is voluntary and true, that is mainly a question of fact.   If the jury has taken one reasonable view, a reference should not be made only because the Sessions Judge prefers another view.

In one line:

A retracted confession of one co-accused cannot be used as corroboration of another co-accused’s retracted confession, and a jury’s factual assessment of such confessions should not lightly be disturbed.

 

***10. Exam-Oriented Ready Note for BJS Exam

Ready Note

The State v. Mukhtar Ali and Others, 10 DLR (1958) 155, is an important case on section 30 of the Evidence Act and the evidentiary value of retracted judicial confession. In this case, the accused were tried for murder under sections 302/34 of the Pakistan Penal Code. There was no eye-witness, and the prosecution case mainly depended on the judicial confessions of two accused persons, which were later retracted. The jury unanimously found the accused not guilty. The Sessions Judge disagreed and made a reference to the High Court under section 307 CrPC.

The main legal issue was whether the confession of one co-accused could be used to corroborate the confession of another co-accused. The High Court held that section 30 of the Evidence Act does not make the confession of a co-accused substantive evidence against another accused. It only allows the court to take such confession into consideration in a limited way. Therefore, one co-accused’s confession cannot corroborate another co-accused’s confession, especially when both are retracted.

The Court further held that whether a retracted confession is voluntary and true is mainly a question of fact. Since the jury had already taken one possible view and acquitted the accused, the Sessions Judge should not have made a reference merely because he held a different opinion. Accordingly, the reference was rejected and the acquittal was upheld.

BJS Key Point

Section 30 Evidence Act = co-accused confession is not substantive evidence; it cannot by itself form the basis of conviction, nor can one retracted confession corroborate another retracted confession.

One-Line Rule for Exam

Confession of a co-accused is only a supporting circumstance, not independent evidence.