P L D 1950 Baghdad﷓ul﷓Jadid 5 (PLP)

DIN MUHAMMAD, C. J.‑

This order will dispose of Criminal Appeals Nos. 131 to 135 presented respectively on behalf of Sharif, Chiragh Muhammad, Ghulam Farid and Dost Muhammad against their conviction and sentence under section 412 Indian Penal Code. Counsel for the appellants has challenged the legality of this conviction on two grounds:‑ (1) that the evidence of Mr. Dilshad Ali, Magistrate on whom the District Magistrate has solely relied is altogether inadmissible in evidence. (2) that the District Magistrate could not legally question the appellants as to the commission of the offence inasmuch as no legal evidence to that effect had been produced before him and conse quently he could not take into consideration the so‑called confession attributed to the appellants. After giving the matter my careful considerations, I have come to the conclusion that both these contentions being well founded must prevail. The solitary witness examined in all these cases was Mr. Dilshad Ali, Magistrate, Fisrt Class, Bahawalnagar, and the trend of his statement in all these cases was that on the 8th of September 1947, the appellants had produced before him certain articles which they had admitted to be part of the property looted in the recent disturbances and had asked for pardon. This statement clearly amounted to a confession and as it was made before a Magistrate without his observing any formalities of law, it could not be admit ted in evidence at ail. Reference in this connection may be made to A. I. R. 1936 Privy Council

253. In the case before Their Lordships, a First Class Magistrate had deposed that on the application of the police and under the orders of the District Magistrate he had proceeded by car to the scene of the dacoity and to the places material to the events connected with it. The accused also accompanied him. The object was said to be that the accused might be given the opportunity of voluntarily leading the way and showing to the Magistrate the places where incidents in the crime had occurred The Magistrate was then led round by the result and places were pointed out. The result was a full confession of the accused to participation in the robbery. The Magistrate further stated that he had made rough notes of what he was told and after dictating to a typist a memorandum from the rough notes then destroyed them. He even produced the memo randum in question containing the substance but not all of the matters to which he had deposed orally. Being a Magistrate of the First Class he was entitled to proceed under section 164 of the Code of Criminal Procedure. Before their Lordships of the Privy Council it was strenuously contended that the statement of the Magistrate wets inadmissible inasmuch as the Magistrate had not proceeded according to law and had failed to observe all the formalities laid down in sections 164 and 364 Criminal Procedure Code. Their Lordships in this connection made the following observations :‑ "The matter to be considered and decided is one of plain principle and first importance, namely, is such oral evidence as that of the Magistrate admissible ? It was said for the respon dent that it was admissible just because it had nothing to do with section 164 or with any record. It was argued that it was admissible by virtue of sections 17, 21, 24 and 26 Evidence Act, 1.872, just as much as 'it would be if deposed by a person other than a Magistrate ............................................... "The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts and although the Magistrate acting under this group of sections is not acting as a Court, yet he is a Judicial Officer and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to se6tion 164 It is also to be observed that, if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by sections 164 and 364 would be of such trifling value as to be almost idle. Any Magistrate of any rank could depose to a confession made by an accused so long as it was not induced by a threat or promise, without affirmatively satisfying himself that it was made voluntarily The range, of Magisterial confessions would be so enlarged by this process that the provisions of section 164 would almost inevitably be widely disregarded in the same manner as they were disregarded in the present case. "It is for obvious reasons most undesirable that Magistrates and judges should be in the position of witnesses in so far as it can be avoided In their Lordships' view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers than as judicial persons ... ..In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules or procedure or conduct whatever The effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by Magistrates when made during an investigation, and to render inadmissible any attempt to rival with them in the method proposed in the present case. The evidence of the Magistrate should therefore in the opinion of their Lordship have been rejected by the court. There could be no severer condemenation of the type of evidence relied upon in this cage and it is on this account that have reproduced at length these passages from the judgment of their Lordships. The evidence of Mr. Dilshad Ali therefore, cannot be relied upon in any manner and this being the only evidence in the case, the conviction of the appellants so far as it stands on this evidence will not be maintainable. This leads me to the consideration of the second matter raised by council, namely, whether the confession said to have been made before the District Magistrate himself could be used against the appellants. Here to the position taken by the pro secution is untenable. For close upon fifty years, various High Courts in India have laid down in clear terms that unless a circumstance appears in evidence against accused person he cannot he questioned about it and teat if any such question is put to him and in reply he admits the existence of that circumstance, the statement even if it amounts to a confess ion cannot be acted upon at the trial. The first available judgment on this point is a Division Bench judgment of the Madras High Court dating back' to 1915 and reported as 30 I C

447. The Bench was composed of two eminent judges, Sir John Wallis Chief Justice and Mr. Justice Courts‑Trotter. Relying on an earlier judgment of While, C. J. reported as I L R 27 Mad. 238 (1904) as well as an English judgment delivered by Erle, J: in R V Berriman, the learned judges laid it down as a rule of law that where no evidence has been given implicating the accused, the Magistrate has no right under the statute to put any question to him or invite him to make a statement, and any statement made by him cannot be used against him at the trial. A similar question arose before Martinue J. in the Lahore High Court and the learned judge re‑affirmed this principle following both the Madras judgments referred to above A I R 1923 Lahore

225. In A I R 1928 Uudh 373 Nanavatty J. took it as a well established principle and acted accordingly. In A I R 1929 3indh 255 a Division Bench composed of Percival J C and Aston A J C also accepted this principle as correct and cited among others a judgment of the Calcutta High Court dating as far back as 1899 (I L R 26 Caltcuta 49). Skemp J. in A I R 1936 Lah. 28, Mockett J. in A I R 1937 Mad. 209 and Pandarang Rao J. in A I R 1938 Mad. 904 also followed the same course: The only dissenting judgment is that of Mackney J. reported as A I R 1935 Rang. 509, where although he agrees that if there is no evidence led by the prosecution on a particular matter against an accused person, the Magistrate has no right to question him about it, lie considers that if once a question has been put and answered, the answer can be taken into consideration by the Court. It is obvious that in making this observation he is ploughing a lonely furrow. Even otherwise the principle enunciated by him, runs counter to every v all established principle of law especially the one enunciated h; their Lordships of the Privy Council in A I R 1936 P C

25. If once the reasoning employed by him is adopted, all things however illegally introduced will become admissible. For instance, if a police officer would depose to a confession made by an accused person it would become admissible, for however, illegally and wrongly obtained the statement exist. Similarly, a Court would be bound to take into consideration a confession of the accused even though the Magistrate who had recorded it had observed no formalities of law. It should be remembered that only such material can be used against an accused person as has been obtained in accordance with the relevant provisions of law and nothing that is not so obtained is relevant. On the grounds set forth above it was not possible for the District Magistrate to use the applicants confession against them. I am constrained therefore, to allow all these appeals, set aside the conviction and sentence of the appellant and acquit them. The fine if realized will be refunded. I need not add that I fully realize that the result is unfortunate as these cases had arisen out of the recent distrubances but sitting as a Court of law I am bound to administer justice regardless of consequences. A. H. Appeals allowed.