2003 P Cr (PLP)

__________________________Division 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. Undertaking these two facts, are you making a statement before me voluntarily? A. 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. Dated ______________. Magistrate. " According to evidence the appellant was arrested by P.W.14 on 22-9-1987. He remained in police custody till 24-9-1987. On 24-9-1987 an application Exh.P.E. which was signed by A.S.P./S.D.P.O. Nasir Khan P.W.14, seeking recording the statement of the appellant under section 164, Cr.P.C. was submitted to the Magistrate who recorded his order Exh.P.E./1 and Exh.P.E./2 on the application. According to this recorded order the appellant was asked twice by the Magistrate as to whether he intended to make any confession who stated in the affirmative and, thereafter, according to this order, the police was asked to leave the Court-room, so that the statement of the appellant could be recorded. A bare perusal of the order reveals that the provisions of subsection (3) or section 164, Cr.P.C. were not adhered to. It was never explained to the appellant that he was not bound to make any statement. According to the recorded order the appellant was asked twice as to whether he wanted to make a confession or not. The police remained present during that time. In such a situation the appellant was hardly in a position to say to, specifically, when the appellant was never assured that after recording of his statement he was not to, be handed over to the police.

11. In the case of Ghulam Muhammad v. The State PLD 1971 Lah. 850 while commenting upon the confession recorded under section 164, Cr.P.C. read with section 364, Cr.P.C. the learned Division Bench of this Court held as follows:-- "All that the Magistrate told the accused was that he should sit down and think over the matter and then make a statement according to his own free will. This warning was not sufficient to bring to the mind of the confessor the serious results that had to follow the confession. The warning is to be administered in the language used in subsection (3) of section 164, Cr.P.C. and where it is administered in a casual way the Courts have refused to rely on such a confession. The Magistrate even did not explain to the accused before time was allowed for consideration that he was not bound to make a confession and if he made one, it will be used against him. The warning administered by the Magistrate in this case does not conform to the one prescribed by the Statute and this failure is enough to vitiate the confession apart from other circumstances which make it unacceptable."

12. In the case of Syed Azeem Shah v. The State PLD 1987 Quetta 96 the learned Division Bench of Quetta High Court did not rely upon the confession when before recording the confessional statement the accused was not explained that he would not be handed back to police.

13. P.W.13, Ch. Riasat Ali, Magistrate admitted during his cross -examination that the handcuffs of the appellant were not removed nor he had recorded any certificate at the foot of the confession as envisaged by section 364, Cr.P.C. According to this P.W., he had given time to the appellant to think over whether he intended to make a confession or not. This time comes up to 45 minutes as according to the order Exh.P.E./1 recorded by this P.W. the accused-appellant was produced before him at 11-15 a.m. and he recorded his statement at 12-00 noon. It is indeed unfortunate that the Magistrate never realized that it was very serious matter which could result in the life and death of the appellant. Instead or making the appellant aware of the fact in clear terms that he was not bound to make any confession and what would be the consequence of making the confession this Magistrate thought it proper that 45 minutes time was enough to ensure the voluntariness of the confession. The trial Court has completely lost sight of the fact that during the time which was allotted to the appellant for reflecting over the matter the police remained present in the Court-room and the handcuffs were never removed. As already stated above, the Magistrate never assured the appellant that he would not be handed back to the police.

14. In the case of Wazir and others v. The State PLD 1960 (W.P.) Kar. 674 the learned Division Bench held that after the recording of confession the accused person should be sent to judicial custody, and they should in fact be informed before hand that whether they make a confession or not, they shall not be delivered back to police custody. If the confessing accused is sent back to police custody after he has made a confession, such a course seriously vitiates the voluntary nature of the confession. Where the voluntary nature of confession is doubtful, it can hardly be credited with any evidentiary value at all.

15. The confession was not considered to be voluntary in the case of Hakeem Gul v. The State PLD 1964 (W.P.) Pesh. 1 when the accused was not informed that he would not be sent back to police custody.

16. As far as the question that how much time should be given to accused to reflect and think over before his confession is recorded is concerned, the superior Courts had consistently held that it should be sufficient, however, there had been a differences of opinion as to how much time would be sufficient.

17. In the case of Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 it was observed by the Supreme Court of India that the effective way of treeing the mind of the accused person from the fear of the police was to send him to jail custody and give him adequate time to consider whether he should make a confession at all. Their Lordships further observed that it was difficult to lay down any hard and fast rule but it was reasonable to insist upon giving an accused person at least twenty-four hours to decide whether or not he should make a confession.

18. In the case of Ghulam Muhammad (supra) the learned Judges of the Division Bench agreed with the observations made in the above-mentioned case and were of the opinion that if this salutary practice is followed, the voluntariness of confession would be more assured.

19. It has also been noticed that application Exh.P.E. whereby a request was made to the Magistrate to record the statement of the accused bore the signatures of Nasir Khan Yousaf who was posted as D.S.P., Saddar, Bahawalpur but he never appeared before the Magistrate and the application was presented to the Magistrate by P.W.15. The Magistrate never recorded this fact. The Magistrate, on the contrary stated before the trial Court that A.S.P. himself submitted the application Exh.P.E, and he produced the accused before him. The statement of the Magistrate is belied by the statement of P.W.14 but also by the statement of P.W.15 who stated that he had drafted Exh. P. E. on the direction of A. S. P., Nasir Khan and then he got the confessional statement of the appellant recorded by the Magistrate. The appellant was handed back to the police after recording of confession.

20. In view of the above-noted circumstances, my view the confession is inadmissible in evidence as the same cannot be termed as voluntary. As a sequel to this finding I allow this appeal, set aside the judgment dated 3-6-1992 passed by the trial Court. The appellant, who is on bail, is acquitted. His bail Bonds are cancelled and the sureties are discharged. Appeal allowed. H.B.T./G-281/L Appeal allowed.