P (PLP)

In the Court of

The Crown Versus The confession of

taken by me

, a Magistrate of the

District, this

day of

19 Memorandum of Enquiry (The Magistrate shall first, as required by Section 164 (3), Code of Criminal Procedure, explain to the accused person that he is not bound to make a confession, and that if he does so, it may be used as evidence against him, and shall then put and record answers to the following questions. If the answers are of such a character as to require him to do so, he should put such further questions as may be necessary to enable him to judge whether the accused person is acting voluntarily. In arriving at his conclusion on this point the Magistrate should consider inter alia the period during which the accused person has been in Police custody and make sure that the confession is not the result of any undue influence or ill-treatment. Special care should be taken when women or children are produced by the Police for their confessions being recorded). Q.-Do you understand that you are not bound to make a confession ? A.- Q.-Do you understand that your statement is being recorded by a Magistrate, and that if you make a, confession, it may be used as evidence against you ? A.- Q.-Understanding these two facts, are you making a state ment before me voluntarily ? Statement of accused. (Mark or signature of accused). Magistrate I have explained to

that he is not bound to make a confession, and that if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it, and admitted by him to be correct, and it contains a full and true account of the statement made by him. Magistrate Dated

" To the same effect is the direction given by the Punjab Government in its circular letter No. 6091-J-36/39829 (H. Judicial) dated the 19th December 1936:- "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 trim." I am fully aware that the irregularities in recording a con fession can be cured under section 533 Criminal Procedure Code. But it is only when the Court is satisfied that the confession had been made duly although it was not recorded duly. In other words the matter is one of substance and not merely that of form. I must therefore now proceed to examine the material on the record on which reliance was placed on behalf of the prosecution to show that the confession had been duly made by Mst. Bakhat Bano appellant. The only statement is that of the Magistrate: It shows that he had put no questions to the appellant and recorded the statement in the narrative form". The object why Section 364 Criminal Procedure Code requires questions to be put by the Court is twofold. Firstly that the accused may not be allowed to relate a set story which he may have been tutored to reproduce and secondly that he may be asked to explain any thing which in the opinion of the Court needs an explanation. Thus in failing to put any questions and to record the answers given in reply, the Magistrate allowed the very object with which the section was enacted, to be defeated and did not exclude the possibility of a carefully pre-arranged story being related to him. Moreover, he gives no reasons whatsoever in his cross-examination as to why I did not record in writing the preliminary questions about my telling her that I was a Magistrate and not a Police Officer and that she understood it or that she was not bound to make a statement although an opportunity was provided to him to furnish an explanation during his cross-examination It must be admitted that he had stated in his examination-in-chief most if not all of what he was required by law to do before recording a confession to satisfy himself as to its voluntary nature after realizing its consequences fully. But having regard to the facts that his own reputation as a Magistrate anal to a large extent his future prospects depended upon his giving these answers in the manner in which he had given them and to show that .he had taken good care to comply with the requirements or that he could not have committed such a grave omission, I am not prepared to accept them at their face value-in any case it would not be safe to do so. It is not possible for me otherwise to understand why he had failed to make a note of the preliminary questions which he was both under .law and in accordance with the orders of this Court bound to record. Even the ten minutes time which he states as having been given to the appellant to think over her desire to make the confession" was neither sufficient nor in accordance with the-circular of the Punjab Government which has already been quoted. There was no reason for arty hurry and the statement seems to have been, to say the least, recorded in haste-more as a matter of routine than after bestowing considerable thought by the Magistrate and after taking all the precautions which he was by law required to take: It may be that he thought when he started that he was recording the statement of a witness and realized while doing so that he was recording a confession. If this were so and the possibility of such a contingency cannot be ruled out of consideration, the accused may not have been warned of the risk she was running by making the confession before recording it. And if he had come to realize this while recording the confession, the Police might not have been excluded from his room in the beginning and either not at all or at least not for some time after he had started recording the statement. These and the absence of any direct testimony connecting the appellant with her guilt. which the police and everybody else might have honestly believed to have been committed: by her, raise a reasonable doubt in my mind and I consider it to be unsafe to act upon the Magistrate's statement given in Court. I must for the above reasons hold the confession to be inadmissible in evidence. And once it is discarded, there is nothing left on the record on which the appellant's conviction can be sustain ed. I would accordingly allow the appeal and acquit the appellant. She would be released from custody forthwith. M. KHURSHID ZAMAN. J

I agree. K. M. A. Appeal accepted.