P L D 1959 (W (PLP)

HABIB ULLAH, J.--‑This is an appeal by the State through the Public Prosecutor, West Pakistan, against the order of Sardar Ghulam Muhammad Khan, Sessions Judge, Bahawalpur, whereby Allah Yar respondent, who was tried under section 302, P. P. C. for the murder of his wife Mst. Faiz Bibi, has been acquitted.

2. The brief facts of the case as gleaned from the evidence are that Mst. Faiz Bibi, the wife of the respondent, had contracted illicit connections with one Hasan Shah. The respon dent tried to persuade the deceased to give up her connections with Hasan Shah but she did not listen to him. She used to put him off by denying the accusation. On the evening of the 27th March 1956, the respondent left his house for his field, telling his wife that he would return late. He, however, came back to his house after about half an hour. He found his wife sitting in her room looking at the photo of her paramour Hasan Shah. The respondent snatched the photo and snubbed his wife. After some time the wife demanded back the photo which the respondent declined to return. It appears that they engaged in unpleasant arguments the whole night. The wife some time after midnight went out but the respondent brought her back. She left for the second time but the respondent again succeeded in preventing her from going away. When she made a thud attempt to leave the house, the respondent stopped her. This involved them in a quarrel where after the respondent threw her down and strangled her to death. This happened some tune in the early hours of the morning. In the meantime, Wali Muhammad (P. W. 9), who happened to pass near the house of the respondent in the street while on his way to the jungle for answering the call of nature, heard some noise from inside. On going there, he found Mst. Faiz Bibi lying motionless with the respondent standing nearby. On enquiry, the respondent related the entire story to him and confessed that he had killed his wife by throttling her. Wali Muhammad went to the house of his brother. Ali Muhammad (P. W. 8), who is a Lambardar of the village and apprised him of the incident. Meanwhile the respondent also reached there and made a clean breast of the whole matter. Thereafter, Wali Muhammad, Ali Muhammad and the respondent came to the scene of occurrence where the dead bode of Mst. Faiz Bibi was lying. Leaving the respondent in charge of Wali Muhammad and others, Ali Muhammad went to the police station to lodge a report. Since the police officers were not present there and the Head Constable was said to be in Zhak No. 34 in connection with the investigation of another case, Ali Muhammad contacted him there and reported the matter to him. When the Head Constable reach the spot, he found the dead body of Mst. Faiz Bibi lying in her house and the respondent present there. He was arrested. On the following day, A. S. I. Shah Feroze also reached the village and took up the investigation in his own hand.

3. On the 3rd April 1956, the respondent was produced before a Magistrate who recorded his confession. At the trial, however, the respondent retracted his confession and ascribed it to torture at the hand of the investigating officer. He denied the charge and stated that his wife had been killed by Wali Muhammad (P. W. 9) who had illicit connections with her.

4. It is clear from the medical evidence that the deceased died of asphyxia due to throttling, and it has been frankly con ceded by the learned counsel of the respondent also that Mst. Faiz Bibi was strangled to death. He, however, vehemently contended that the confession being illegally recorded was inadmissible in evidence and as such could not be taken into consideration. In support of his argument, he relied on a Division Bench decision of this Court, Mst. Said Begum v. The State (P L D 1958 (W. P.) Lah. 559). The proposition of law enunciated by their Lordships in their judgment was stated in these words :‑ "It appears from his (Magistrate's) statement that when she (the confessing accused) was produced before him, he had given the necessary warning and then had allowed her about half an hour to ponder over the matter, and after the expiry of that period, he had asked her straightaway to make a statement, and when she had expressed her willingness to do so, he had pro ceeded to record her statement without giving any warning to her at that stage as required by subsection (3) of section 164, Criminal P. C. This subsection clearly requires that before recording the confession such a warning should be given. The time which is usually given to a confessing prisoner to think over, is to ensure that the prisoner is no more under any extra neous influence. We have grave doubts if the method adopted by the Magistrate was in conformity with the law.* * * * * * * But in our opinion the language of subsection (3) does not admit of any ambiguity. It is a mandatory provision of law, which requires that the warning should be given before the recording of the confession. It obviously means that the warning is to be given before commencing the recording of the confession. It will be a meaningless warning if it is given half an hour, or an hour or a few hours earlier. The very object will be frustrated if the warning is not given at the commence ment of the recording of the confession. * * * * * We find sufficient material on the record to hold that her confession was not voluntarily made. It is not the satisfaction of the Magistrate who recorded the confession which matters ; it is really the satisfaction of the Court which counts. The 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 or not. * * * * * * * * * * * * This throws a flood of light on the prosecution case and creates a doubt in our mind as regards the genuiness and voluntary nature of the confession. It appears that the woman had remained with the police for a number of days before she was produced before the Magistrate. For the aforesaid reasons we hold that the confession had not been recorded in accordance with law and was also not voluntarily made and, as such, it was inadmissible. We, therefore, exclude it from consideration in determining the guilt of the accused."

5. With the greatest respects for their Lordships, it is not easy to agree with their view. That the necessary warning must be given to the confessing accused before commencing the record ing of the confession is not a matter for controversy, and it is not disputed that in the present case, such a warning was given to the respondent, but the learned counsel has raised the objection that the requisite warning should have been given immediately before the Magistrate commenced the recording of his confession, as laid down by their Lordships in the case noted above. Subsection (3) of section 164, Criminal Procedure Code, says: "A Magistrate shall before recording any such confession 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 as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily ; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect :‑ There is nothing in the provision of subsection (3) to require that the warning must be given immediately before commencing the recording of the confession. I have not been able to discover any such condition in its language. All it requires is this that confession should not be recorded unless a warning is given as contemplated by subsection (3). It is obvious from the language of the subsection that the object of giving the warning is to ensure that the confessing accused is under no extraneous in fluence, such as inducement, threat or promise, while making a confession. It is equally obvious that this object can be more fully achieved if the confessing accused is first given a warning as required by subsection (3) and then allowed a sufficient time for reflection. It is hardly necessary to argue that the object will be defeated if the necessary warning is given to the accused person and then immediately thereafter without allowing him any time to ponder over the matter the Magistrate commences the recording of the confession. The advantages and disadvantages of the two positions are quite clear on the face. In one case the confessing accused is given sufficient opportunity to think over the matter after he is given the warning and the danger of making a confession without pondering over the consequences of the con fessional statement is avoided, while in the other case, though the accused has been warned, he will have no opportunity to think over the matter. It is not quite understandable as to how the object underlying the provision of subsection (3) would be frustrated if after the necessary warning the confessing accused is also afforded a sufficient opportunity in terms of time to reflect whether he should or should not make a confession, when the consequences of making the confession have been duly explained to him. If, as ruled by my learned brothers in the case noted above, the confessing accused is given time not preceded by the requisite warning, he will be sitting idle with nothing to think over and absolutely unaware of the consequences which will follow his confession. It is neither the respondent's learned counsel's case, nor is it the view of their Lordships, that the confessing accused should be given two warnings, one before the time is allowed for thinking over the matter and another subsequently after its expiry and immediately before the Magistrate commences the recording of the confession. After having fully considered every aspect of the present case, there is no doubt left in my mind that all legal formalities required by section 164, Criminal Procedure Code, have been complied with, and the confession of the respondent being according to law and valuntary is admissible in evidence and can be acted upon if it is corroborated.

6. The learned counsel of the respondent also made reference to two other cases, Emperor v. Pancham (A I R 1933 Oudh 192) and Abdul Subhan and another v. Emperor (A I R 1940 All. 46). The facts of the first case are quite different from those of the case under discussion. In that case the accused person was in police custody for more than twenty four hours without a remand having been obtained from a Magistrate as required by law, and after his confession was recorded he was again handed over to police custody. It was held by their Lordships that he was not a free agent when he made his confession and that the Magistrate who recorded his con fession did not remove the fear of the police from his mind. Their Lordships also found that the confession itself bore intrinsic evidence of its not being a true one. It is important to point out here that the confession consisted of only one brief sentence, namely, "I felt aggrieved and pushed her down into the canal and came to my house". Their Lordships for the reasons set out above held the confession to be neither voluntary nor true and as such inadmissible.

7. The relevant facts of the Allahabad case were that the accused persons was in police custody for several days in violation of the rules and law and no magisterial remand was obtained during the period. When the accused person was produced before the Magistrate, he clearly stated in his con fession that he was making his statement due to police threat. There being no corroboration whatsoever of the retracted con fession, it was held insufficient for conviction. Therefore, this authority also provides no guidance in the present case.

8. Next, it was objected that the identity of the dead body recovered from the house of the respondent was not fully established. In this connection, attention was called to the post mortem report wherein three persons, namely, Sultan Mahmud, Allah Bachaya and Ghulam Muhammad, were mentioned as the persons who identified the dead body of the deceased before the doctor at the time of post‑mortem examination. What actually happened, as appears from the record, is that while Sultan Mahmud was not examined in the trial Court, the Public Prosecutor apparently through oversight did not put any question to Allah Bachaya and Ghulam Muhammad in respect of the identity of the dead body. But this omission is not at all fatal to the prosecution case because Allah Ditta (P. W. 7), father of Mst. Faiz Bibi deceased, was examined in the trial Court and he stated in unequivocal terms that the dead body of his daughter was identified by him before the doctor. It was never the defence case in the trial Court that Mst. Faiz Bibi was alive and that the dead body found in the house of the respondent was of some other person. The record leaves no room for doubt that the dead body was that of the wife of the respondent.

9. As to the merits of the case, there is sufficient material on the record to corroborate the retracted confession. It will be recalled that the respondent is alleged to have killed his wife because of her illicit connections with one Hasan Shah. The learned trial Judge has disbelieved the evidence of Ali Muhammad (P. W. 8) in this respect for the simple reason that this witness is not a family member of the deceased and that, therefore, he is not expected to know anything about the character of the deceased. He also did not consider the motive proved because the prosecution had failed t4 produce Hasan Shah, the alleged paramour of the deceased. His further argument in support of his finding was that Allah Ditta, the father of the deceased, denied the allegation that his daughter , was of bad character. I am constrained to remark that the approach of the learned Judge to the question of motive was neither correct nor proper. It does not require any efforts at imagination that Hasan Shah, the alleged paramour, and Allah Ditta, father of the deceased, would be the last persons to come forward in Court and declare that the deceased had illicit connections with him (Hasan Shah). Ali Muhammad is the Lambardar of the village, living at a short distance from the house of the respondent, and is an absolutely disinterested and impartial person. There is no reason why his statement in respect of the motive should not be believed. I think there is no doubt about the motive, which was clearly mentioned in the first information report. It is not possible to imagine that this motive has been simply invented to rope in the respondent.

10. The retracted confession is also corroborated further by the recovery of the photo of Hasan Shah from the wooden box of the respondent lying in his residential room. The story of photo was given in detail in the first information report which was lodged promptly, and long before the photo was produced by the respondent from his box to the investigating officer on his arrival. The learned trial Judge has disbelieved the photo story on the flimsy ground that there was discrepancy in the statements of the witnesses on the point, namely, whether the deceased was looking at the photo when her husband dropped in or it was lying on her cot. This discrepancy, which is evidently very minor, was sufficient, in the opinion of the learned Judge, to reject the story that the respondent killed his wife because she was looking at the photo of her paramour. The learned trial Judge conveniently overlooked the important fact that it was not easy for Ali Muhammad Lambardar to have fabricated a false story in regard to the photo while lodging his report, long before it was actually recovered from the house of the respondent. As to the recovery of the photo, there is the testimony of disinterested witnesses, namely, Haji Ghulam Muhammad (P. W. 10) and Allah Bachaya (P. W. 11), that the respondent himself produced the photo of Hasan Shah from his box lying in his residential room and handed it over to the investigating officer.

11. There is also evidence on the record in respect of the extra‑judicial confession of the respondent, which corroborates the retracted confession. Immediately after the occurrence the respondent admitted his guilt before Wali Muhammad and shortly afterwards before Ali Muhammad Lambardar. When Haji Ghulam Muhammad and Allah Bachaya reached the scene of occurrence from their village at the request of the mother of the deceased, the respondent made a confession before them also. The learned trial Judge, while rejecting the testimony of these witnesses, remarked :‑ "In the first instance, inherent weakness of this type of evidence established by numerous judicial pronouncements cannot be lost sight of. There is no controversy about it that evidence of extra judicial confession is of the most weakest kind. Unless the actual words are known and it is supported by the evidence of the most reliable witnesses it cannot be taken into consideration by the Courts. Ali Muhammad P. W. is a Lambardar whose duty is to support the police case. Wali Muhammad is his brother. He cannot be said to be above the influence of the police. Evidence of Faiz Muhammad Shah D. W. who was given up by the prosecution has completely falsified statements of Ali Muhammad and Wali Muhammad P. Ws. The prosecution has failed to discredit evidence of this defence witness. He states that Ali Muhammad and Wali Muhammad P. Ws. admitted before him that they knew nothing about the occurrence. Whatever has been deposed to by them it was under the influence of the police because Ali Muhammad was Lambardar". Proceeding further the learned Sessions Judge gave the following opinion about the evidence of the other two witnesses, Ghulam Muhammad and Allah Bachaya :‑ "Statements of Ghulam Muhammad and Allah Bachaya P. Ws. are not worth the paper on which they are written. They have no connection whatsoever with the prosecution. They reside at a distance of about three miles from the place of occurrence. I do not know what compelled them to run to the scene of occurrence. They state that mother of the deceased requested them to visit the place of occurrence. The purpose of the visit is not given. The mother of the deceased has not been produced to say that she brought them at the site. Moreover, it is not mentioned in their police statements that mother of the deceased asked them to accompany her to the place of occurrence. From all this it appears that they are chit hunters of the police brought at the spot simply to depose about extra‑judicial confession of the accused with a view to strengthening the prosecution case. Actual words used by the accused cannot be ascertained with certainty from depositions of all these witnesses. I hold that the evidence of extrajudicial confession is false".

12. The reasons given by the learned trial Judge in support of his finding that the evidence of extra‑judicial confession was false are so flimsy that they hardly require any elaborate discussion. He has thought it fit to assume that the evidence of Muhammad Shah produced in defence was simply gospel truth and that it was sufficient to rebut the sworn testimony of Ali Muhammad and Wali Muhammad whom he has sur prisingly described as "chit hunters of the police". The testimony of the other two witnesses, Ghulam Muhammad and Allah Bachaya, has been dismissed with one stroke of pen as false for the simple reason that they had no business to visit the scene. of occurrence. It has been conveniently overlooked by the learned Sessions Judge, who pretends to be unaware of the purpose of their visit to the house of the deceased, that they had been requested by the deceased's mother who lives in their village at some distance from the house of her daughter, to go to the spot to help her. One cannot find anything unusual in the conduct of these witnesses to go to the scene of occurrence at the request of the mother of the deceased who followed them there. It is significant to point out here that all these witnesses are absolutely disinterested and impartial persons, and there is no suggestion whatsoever from the respondent's side that the , have any malice against him. They were all mentioned in the first information report.

13. Next, we come to another important piece of corro borative evidence, namely, the 'injuries found on the person of the respondent. According to the doctor who examined him on the third day of the occurrence (30th March), he had the following injuries :‑ (1) An abrasion, 1/2" x ‑1./8", skin deep, with scab on the right side of lower lip. (2) An abrasion, 1" x 1/8", skin deep, with scab about 1/2" from injury No. 1. (3) An abrasion, 1‑1/8" x l/8', skin deep, on the left cheek. (4) Two abrasions 1/2"x 1/8", skin deep, with scabs on the external surface of the right wrist joint. The injuries were caused with nails and were of within seventy two hours' duration. 1:4.. It is not denied that injuries were found on the person of the respondent, but it is contended that these were caused by the investigating officer who gave beating to him. In support of the allegation evidence was led in defence to show that the respondent was belaboured by the investigating officer twice and on each occasion he was given thirty or forty blows with shoes. The defence story in regard to these injuries is simply preposterous and fantastic. As already pointed out above, the injuries, which were very minor and sustained by the respondent on his lips, cheek and wrist joint, were caused by nails as stated by the doctor, and were not the result of any shoe‑beating. There is no eye‑witness in the case and, therefore, it is not possible to say with the necessary degree of certainty that these injuries were caused by the deceased, but it is easy to imagine that these must have been sustained by the respondent at the hand of the deceased who had a quarrel with him. This conclusion receives some support from the confession of the respondent wherein he stated that when he last stopped his wife from going away from the house, she quarrelled with him. The actual words are; "To woh mere sath larne lagi".

15. It is not possible to agree with the suggestion of the learned counsel of the respondent that the deceased seemed to have been killed by Wali Muhammad as alleged by the res pondent in his statement at the trial. There is nothing on the record in support of the suggestion. It is important to point out here that the respondent was found present in his house immediately after the occurrence standing near the body of his wife, that there was no other person present there, and that he made no efforts to make a report about the murder of his wife either to anybody in the village or to police against Wali Muhammad or somebody else. On the other hand, he himself went to the house of Ali Muhammad Lambardar and made a confession.

16. I have given my utmost consideration to all the facts and circumstances of the case and feel no hesitation in reaching the conclusion that the retracted confession is true and was made voluntarily and that it is corroborated by the evidence discussed above. The order of the trial Court is improper and perverse. Therefore I set aside the order, accept the appeal and convict Allah Yar respondent under section 302, P. P. C. In view of the infidelity of the deceased, I do not think the respondent deserves capital punishment. He is accordingly sentenced to transportation for life. ORTCHESCN, J.--‑I entirely agree with my learned brother, both with respect to his findings on the merits and with the reasons he has given for respectfully dissenting from the view of the law laid down in Mst. Said Begum v. The State but would like to add one remark regarding the recovery of the photograph in dispute from a box in the respondent's house. The learned Sessions Judge remarked in this connection:-- "If the photograph was ever found by the accused, it is not expected of him to conceal it in the box because there seems to be no idea behind it. It is not appealing to the senses that the accused would have concealed the photograph of the paramour of his wife in the box." In making these observations, the learned Sessions Judge has overlooked the fact that a considerable interval elapsed between the time when the respondent found the deceased looking at the photograph and the time of the murder. It is also in evidence that the deceased asked the respondent to return the photograph to her. In these circumstances, it is by no means surprising that the respondent, who must have considered the photograph to be a strong proof of his wife's infidelity, should have kept it at a safe place. The respondent is clearly guilty of an offence under section 302, P. P. C. The sentence proposed by my learned brother is also appropriate, and I concur. K. B. A. Appeal accepted.