1975 P Cr (PLP)

(5) One contusion 1/2' x 2' on the back of left wrist. (6) One contusion 1' x 2' on the back of left elbow. (7) One contusion 1' x 2' on the front of knee. In the opinion of the doctor the cause of death was asphyxia due to strangu lation by a piece of rope.

5. On 20th July 1970 the appellant is alleged to have come to Waryam (P. W. 12) and made extra‑judicial confession of having killed Mst. Khurshid as she had illicit relations with Muhammad Aslam (P. W. 13). Waryam (P. W. 12) produced the appellant before the Sub‑Inspector on 20th July 1970. The Sub‑Inspector made an application (Exh. P.E.) and also produced the appellant before Mian Faiz Rasul. Magistrate 1st Class, Dipalpur for re cording his confessional statement under section 164, Code of Criminal Procedure. The confessional statement (Ex. P. F.) was recorded by the Magistrate on the same day.

6. The appellant pleaded not guilty to the charge. Ho stated that Me. Khurshid Begum was his younger sister. She was mentally deranged and often ran away from the house. She has not died and was missing. He stated that his enemies have planted this case on him. He did not produce any defence.

7. The learned Sessions Judge after carefully reviewing the prosecution evidence and relying mainly on the judicial confessional statement (Exh P.F.) convicted and sentenced Muhammad Sharif appellant as mentioned above. 8, I have heard the learned counsel for the appellant as well as the learned State counsel. I have also gone through the record of this case.

9. The case against the appellant is founded on his judicial confessional statement. He has repudiated this confession. A retracted confession is always a source of anxiety to those who have to see that the 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. It will thus be seen that a confession, however, true it may be 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, I am bound to presume under section 80 of the Evidence Act that it was genuine and that the certificate or note 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 Code of Criminal Procedure. Subsection (2) provides that confession shall be recorded in the manner prescribed under section 364 of the Code of Criminal Procedure. Subsection (3) lays down that the Magistrate 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 memorandum as given in the subsection at the foot of such a record. In the instant case I find that a note as required by this subsection is appended at the foot of the confession (Exh. P. F./1). This provision of law has, therefore, been complied with.

10. In my opinion the language of subsection (3) of section 164 of the Code of Criminal Procedure does not admit of any ambiguity. It is a mandatory provision of law, which required that a warning should be given before recording of the confession. It obviously means that the warning is to be given before the commencement of the recording of the confession. It will be 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. 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 Magistrate:‑ "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." This necessarily implies that besides putting the set questions the Magistrate is required to make a real endeavour to find out t1he 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. It. In the present case it appears that no questions were put to the accused to find out the period during which he remained with the police. Even this question was not put as to whether he was making the confession under any threat, promise or inducement. I 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, and he should be informed that he was before a Magistrate and that whether he made any 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 he 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 seldom, that a culprit is produced before a Magistrate for getting the confession recorder, 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 in inquiry before recording the confession.

12. I 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 Muhammad Sharif appellant. The Magistrate admitted at the trial that when Muhammad Sharif was produced before him he put question to the appellant required by the law but did not reduce them in writing alongwith the answers given by the appellant. He also admitted that he did not repeat his note in the beginning of the statement (Exh. P. F./1). He further admitted that he did not tell the appellant that he shall not be handed over to the police after recording the statement. He further stated that after recording the statement he handed over the appellant to the police.

13. In this case I find sufficient material on the record to hold that the appellant's confession was not voluntarily made. It is not the satis faction 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, Muhammad Sharif appellant denied at the trial made this statement. This throws a flood of light on the prosecution having case and creates a doubt in my mind, as regard the genuineness and voluntary nature of the confession. For the aforesaid reasons I hold that the confession had not been recorded in accordance with law and was not also voluntarily made and, as such, it was inadmissible. I, therefore, exclude it from consideration in determining the guilt of the appellant.

14. The learned Sessions Judge did not rely on the extra‑judicial con fession alleged to have been made by the appellant before Waryam (P.W. 12). Moreover I find that Mst. Bakhtan (P. W. 11) mother of the deceased did not identify the photographs (Exh. P. C. and Exh. P. C./1) as belonging to her daughter Mst. Khurshid. I am, therefore, of the opinion that in these circumstances no reliance can be placed on such flimsy evidence. The dead body had already been recovered and nothing was recovered at the ins tance of the appellant, and there is, therefore, no evidence to connect the accused with the offence.

15. I accordingly accept this appeal, set aside the conviction and sentence of the appellant and acquit him. The appellant shall be set at liberty forthwith if not required in any other case. Appeal accepted