P L D 1958 (W (PLP)

CHANGEZ, J.‑Mst. Said Begum, aged 34 years, has been convicted by the Additional Sessions Judge, Gujrat, under section 302, P. P. C. for the murder of her husband Ahmad Khan and has been sentenced to transportation for life. One Nadir Ali was also tried with her but was acquitted. She has filed this appeal against her conviction and sentence.

2. The case for the prosecution is that in the month of Maghar 1955, Rahmat Khan (P. W. 7), resident of village Duranwali, came to village Santal to see his first cousin Ahmad Khan deceased. After seeing him he went back to his village. About a month later he learnt that Ahmad Khan was missing from the village. Accordingly he came to village Santal and enquired from Mst. Said Begum, wife of the deceased, as to where her husband was. Mst. Said Begum informed him that her husband had gone to village Budhan to bring his son Muhammad Azam from his first, wife. The deceased was originally married to a daughter of Kale Khan (P. W. 8) of village Budhan. She died about ten or twelve years ago leaving behind her son Muhammad Azam who is a simpleton. Rahmat Khan P. W. then went to village Budhan and was informed by Kale Khan P. W. that the deceased had not come to his village. From there he went back to his own village. After another month he again visited village Santal and found that the deceased had not returned. On his enquiry Mst. Said Begum told him that the deceased had gone to village Tara Garh to see his peer. Rahmat went to village Tara Garh but could not find any clue. He again returned to his own village and fifteen days later he again visited the house of the deceased and then he was informed by Mst. Said Begum that the deceased had gone to Lahore. He then proceeded to Lahore in search of the deceased and continued his search for about four months but he was unable to find out the whereabouts of the deceased. He then went to village Budhan and asked Kale Khan P. W. to accompany him to village Santal in order to find out the whereabouts of the deceased. He and Kale Khan P. W. then came to village Santal and made enquiries from Mst. Said Begum and she told them that her husband had gone to Sind. This reply did not satisfy them and they went to the house of Muhammad Alam Lambardar (P. W. 9) where Allah Ditta and Fazal Dad also came. They informed the Lambardar that the whereabouts of Ahmad Khan could not be found out and that he should enquire from Mst. Said Begum about him. As it had become late on that day, the party consisting of Rahmat Khan, Kale Khan, Muhammad Alam, Allah Ditta and Fazal Dad went to the house of Mst. Said Begum on the following day at about peshiwela and enquired from her as to where her husband was. She at first gave evasive replies but on further enquiry Mst. Said Begum told them that she along with Nadir Ali accused had murdered Ahmad Khan. She gave full details about the occurrence and stated inter alia that she had developed illicit intimacy with Nadir Ali and then both of them had decided to murder Ahmad Khan and on the night in question Nadir Ali accused came to the house of the deceased, armed with a toka, and sat in the cattle shed and when Ahmad Khan slept, he came in that room and then both of them gave toka blows to the deceased and while she was giving the toka blows, Nadir Ali accused also received some minor injuries as he was holding the deceased. After his murder, the dead body was placed in the cattle shed under the heap of bhuki, and some fuel wood was placed on it. She also informed them that on the following night they dug out a pit in the eastern kotha of the house and both of them brought the dead body from the cattle shed and buried it in the pit and thereafter Nadir Ali went away from the village on some employment and returned after about two months and then on his suggestion they dug another pit in the room and transferred the dead body from that pit to the other and then plastered it. After Mst. Said Begum had confessed before these witnesses Allah Ditta brought Nadir Ali accused and he was questioned. He at first denied all knowledge about the occurrence but when Mst. Said Begum told him that she had already disclosed the story, then Nadir Ali also confessed his guilt and repeated the same story as was given by Mst. Said Begum. The accused then pointed out the place where they had buried the dead body of Ahmad Khan. Leaving behind Muhammad Alam, Kale Khan, Allah Ditta and Fazal Dad, Rehmat Khan P. W. went to the police station to make the report and on the way he met Sub‑Inspector Raja Amir Muhammad near village Hajiwala and made the report Exh. P. C. before him. The Sub‑Inspector sent the report to the police station for the registration of the case and himself proceeded to the spot, where both the accused were produced before him by Muhammad Alam and Kale Khan P. Ws. who also pointed out the place to him where the deceased was buried. The Sub‑Inspector locked the room and deputed one of his constables to guard the room. On the following day, Nadir Ali accused on interrogation led to the recovery of toka from his cattle‑shed which was taken into possession vide memo Exh. P. D. He also prepared the injury statement of Nadir Ali accused and got him medically examined.

3. On the 13th of September 1956, both the accused were produced before different Magistrates for getting their confessions recorded under section 164, Criminal P. C. Malik Abdur Rahman, Magistrate 1st Class, (P. W. 3), recorded the statement Exh. P K. of Nadir Ali accused on the 13th of September 1956 and Ch. Muhammad Islam, Magistrate 1st Class, (P. W. 5), recorded the statement Exh. P. L. of Mst. Said Begum on the same day.

4. On the 15th of September 1956, Dr. Said Ahmad (P. W. 1) accompanied the Sub‑Inspector to the spot where a place was dug out in one of the rooms of the deceased by Allah Ditta (P. W. 14) and from the pit a piece of matacarpal bone of the left hand was recovered. Some earth was also taken into possession from that pit. Then another place was dug out from where a dead body was recovered. There was a shirt and a chaddar on the dead body. The condition of the body was as follows :‑ All the soft parts over the bones were absent, joints were intact except shoulder joints, both ankle joints and wrist joints: Lower jaw was lying separated. A thin layer of soft tissues (skin) was present over the abdomen and hair was present on the skull on the occipital and temporal regions. . Hair was black on the occipital region but on the temporal region there were found a few gray hair. Teeth were all present. Height of the skeleton was about six feet. The following injuries were noticed :‑ (1) There was a cut mark on the right side of the occipital bone, 3/4" x 1 /8" oblique. (2) Slicing away of the mastoid process and causing a hole in the skull. It was " in diameter. (3) Right transverse process of the 4th cervical vertebra had been cut. It was the body of a stout male of about 35 to 40 years of age. It was in advanced‑stage of decomposition. All other organs of the body were absent due to decomposition. Death, in the opinion of the doctor, was due to shock and haemorrhage caused by cutting the neck and also due to the penetrating wound of the skull. The injuries appeared to have been caused with a sharp edged weapon. The doctor also expressed the opinion that the death must have taken place immediately after receiving the injuries and that the time that elapsed between death, and post- mortem examination was about ten to twelve months. The pieces of cloth, which were removed from the dead body, were Exhs. P. 2/1 to

5. After investigation the accused were sent up for trial.

5. At the trial, fifteen witnesses were examined in support of the prosecution case. Nadir Ali accused denied having any illicit connection with Mst. Said Begum and further denied the commission of the offence. He also denied having made any extra judicial confession before Rahmat Khan, Kale Khan and Muhammad Alam P. Ws. and pleaded that he had been falsely implicated in the case. Mst. Said Begum denied having illicit intimacy with Nadir Ali accused. She further denied having killed Ahmad Khan deceased. She also denied having made any extra judicial confession before Rahmat Khan, Kale Khan and Muhammad Alam P. Ws. She, however, admitted making the confession Exh. P. L. before the Magistrate, but alleged that she had made that statement as a result of the pressure by the police and that she had been told that she would be made an approver. She also pleaded that as her mother was ailing, her husband had taken her to her parents' village and left her there and when she returned from there after, about a month, she found her husband missing, and Rahmat Khan P. W. was there in the house. She enquired from Rahmat Khan as to where her husband was. He told her that he might have gone to Budhan to meet his son and after some days she sent him to village Budhan to enquire about her husband from where he returned two or three days later and informed her that her husband would come after two or three days and he started living with her, and after some time he attempted to develop illicit connection with her on which she left this village and went to village Majra where her parents live and that she was arrested by the police later from the village of her parents. She also added, at the trial, that Rahmat Khan and other P. Ws. were her deadly enemies and they had conspired to falsely implicate her in the case. The accused did not call any witness in their defence.

6. The learned Additional Sessions Judge after carefully reviewing the prosecution evidence acquitted Nadir Ali accused, but relying mainly on her' judicial confession Exh. P. L. convicted and sentenced Mst. Said Begum as mentioned above.

7. The case against the appellant is, therefore, founded on her judicial confession. She has repudiated this confession. A retracted confession is always a source of anxiety to those who have to see that justice is properly administered. The learned counsel for the appellant has attacked the admissibility of this confession on the ground that it had not been made voluntarily. In view of section 24 of the Evidence Act, a confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person proceeding from a person in authority and sufficient in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It will thus be seen that a confession, however true it may 'be is irrelevant in a criminal trial if it comes within the mischief of section 24 of the Evidence Act. It being a judicial confession recorded under section 164 of the Code of Criminal Procedure, we are bound to presume under section 80 of the Evidence Act that it was genuine and that the certificate or note as to the circumstances under which it was taken are true and that the confession was duly taken, provided it was taken in accordance with law. Unless the latter condition is fulfilled, no presumption can be raised. The mode of recording a confession and the procedure to be adopted in that connection are provided in subsections (2) and (3) of section 164 of the Cod6 of Criminal Procedure. Subsection (2) provides that confessions shall be recorded in the manner prescribed under section 364 of the Code of Criminal Procedure. Subsection (3) lays down that the Magis trate shall, before recording a 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. He is further required to make a memo randum as given in the subsection at the foot of such a record. In the instant case we find that a note as required by this sub section is appended at the foot of the confession Exh. P. L. This provision of law has, therefore, been complied with.

8. The question, which falls for determination, is whether the Magistrate had given the necessary warning to Mst. Said Begum at the time of the recording of her confession that she was not bound to make any confession and that if she did, it may be used as evidence against her. Although we were bound to presume that this must have been done, but we find from the evidence of the Magistrate that in fact no such warning was given to the accused. It appears from his statement that when she 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 straightway if she was prepared to make a statement, and when she had expressed her willingness to do so, he had proceeded 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 confes sion 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 snore under any extraneous influence. We have grave doubts if the method adopted by the Magistrate was in conformity with the law. It appears that this point had never arisen before. Counsel for the parties have not cited, and we have been unable to find any authority on the point involved. 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 o the confession. It obviously means that the warning is to b 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 commencement of the recording of the confession.

9. The same objection applies to another point raised on behalf of the appellant as to whether the Magistrate ha d questioned the accused to satisfy himself if she was making a voluntary confession. The Magistrate has admitted that no such question were put by . him at the stage of the recording of the confession, although he had put some questions earlier when she had been produced before him. The subsection clearly prohibits 'the Magistrate to record a confession, unless by questioning the prisoner, he is satisfied that it is being made voluntarily. It must be a real endeavour on the part of the Magistrate to find out in the confession is being made voluntarily. We do not think that the purpose is really achieved by putting the set questions as given in the printed forms prescribed for recording a confession. In the form given in Chapter 13 of Volume III of the High Court Rules and Orders, the following note is given for the guidance of the Magistrates :‑ . "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." This necessarily implies that besides putting the set questions the Magistrate is required to make a real endeavour to find out the voluntary nature of the confession. It goes without saying that it is a solemn duty which should be performed with great care and caution, and not mechanically.

10. In the present case it appears that no questions were put to the accused to find out the period during which she remained with the police. Even this question was not put as to whether she was making the confession under any threat, promise or induce ment. We think that the Magistrate will be well advised to adopt the following procedure in this connection. As soon as a person is produced before a Magistrate for getting his confession recorded, his handcuffs should be removed and all the police officers shall be turned out of the Court room, arid he should be informed that he was before a Magistrate and that whether he made an statement or not, he will not be handed back to the police, but will be sent to the judicial lock up. He should then be given sufficient time to ponder over the matter. Then he should be warned that he was not bound to make any statement and if h did so, it may be used as evidence against him and then the following questions should be put to him :‑ (1) For how long have you been with the police ? (2) Has any pressure been brought to bear upon you to make a confession ? (3) Have you been threatened to make a confession ? (4) Has any inducement been given to you ? (5) Have you been told that you will be made an approver ? (6) Why are you making this confession ? Then if the Magistrate is satisfied that the prisoner is making the confession voluntarily, he should put the set questions; as given in the printed form and then record the confession. The job is, no doubt, thankless and somewhat tedious, but it must be remembered that on it depends the fate of the prisoner. It is well known that it is only in cases where the prosecution feels, its helplessness in procuring legal evidence against a culprit that he is produced before a Magistrate for getting a confession recorded. It is very rare, that a culprit is produced before a Magistrate for getting the confession recorded, when the evidence for the prosecution is otherwise strong. As such, a greater duty is cast upon a Magistrate recording a confession, to be satisfied that such a confession is voluntarily made, and to that end he must conscientiously devote his inquiry before recording the confession.

11. We regret to note that in the present case no serious attempt appears to have been made to find out if the confession was made voluntarily by Mst. Said Begum. The confession of the co‑accused Nadir Ali, which was recorded by Malik Abdur Rahman, Magistrate 1st Class, illustrates the manner in which some of the Magistrates feel satisfied about the voluntary nature of the confession. The magistrate admitted at the trial that when Nadir Ali accused was produced before him, he was weeping profusely, yet we find that not a single question was put to the accused as to why he was weeping. The Magistrate also admitted that after the first sentence uttered by the accused, he stated that he had not murdered Ahmad Khan deceased and that the police had asked him to make a statement that he had murdered him, but in spite of this protest, the Magistrate proceeded to record his confession, and it is really surprising to find that he appendix the usual note that he believed that the confession had been mad voluntarily. This discloses, to say the least, a shocking state of affairs. In these circumstances the Magistrate should not have recorded the confession at all, and at any rate should not have appended the note that the confession had been made voluntarily. This was just to show how some of the Magistrates conduct themselves while recording the confession of a culprit.

12. In the case of Mst. Said Begum, besides the legal objections referred to above, 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 prepare that the Court dealing with such a confession should have no difficulty in finding for itself whether the confession was mad voluntarily or not. Allah Ditta (P. W. 14) had stated before the Committing Magistrate that the accused had come with the Sub- Inspector and before his arrival two constables had come to the village and had remained in charge of the house for six days and that on the arrival of the constables in the village Mst. Said Begum had gone to village Majra and had returned with the Sub‑Inspector. He denied at the trial, having made these statements and was duly confronted. This throws a flood of light on the prosecution case and creates a doubt in our mind, as regards the genuineness 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.

13. The learned Additional Sessions Judge did not rely on the extra judicial confession alleged to have been made by Mst. Said Begum before Rahmat Khan (P. W. 7), Kale Khan (P. W. 8) and Muhammad Alain (P. W. 9). We have read their evidence and we have no hesitation in holding that this is nothing short of padding. Whereas Rahmat Khan and Muhammad Alam P. Ws. have given the details of the confession as narrated in the earlier part of the judgment, Kale Khan P. W. stated as follows :‑ "Mst. Said Begum stated that she and Nadir Ali had murdered the deceased and that they had committed a mistake and should be forgiven and she did not state anything further. No place was pointed out to us by a accused." This statement does not give any dells which the other two witnesses have so graphically given. He is definite that no place was pointed out by the accused, while Rahmat Khan and Muhammad Alain P. Ws. stated that the accused had pointed out the place. We are, therefore, of the opinion that in these circumstances no reliance can be placed on such flimsy evidence.

14. The fact, however, remains that a skeleton was recovered from one of the rooms of the deceased. A crude attempt was made to identify the skeleton, by the pieces of rage Exhs. P. 2/1 to 5 which were found on the body. We think that it was impossible to. identify the skeleton to be that of Ahmad Khan. The pieces of rage had no peculiar identifying marks. The evidence as regards the pointing out of the place as note above is highly discrepant. The Sub‑Inspector does not claim that the place, from where the skeleton was dug out, was pointed out by Mst. Said Begum. There is, therefore, no evidence to connect the accused with the offence.

15. We accordingly accept this appeal and setting aside the conviction and sentence acquit the appellant and direct that she shall be set at liberty forthwith. Appeal accepted.