P L D 1958 (W (PLP)

Constantine, J.

was of opinion that regulation of practice and procedure of Magistrates was a matter for the High Court as a whole. The function of a Division Bench was not to legislate but to adjudicate. It cannot lay down a procedure, and so it can not say that because the procedure has not been followed, therefore, as a matter of law the confession must be rejected. If it does so, as a matter of fact, then its decision is confined to the facts of that case. Murtaza Husain for Appellant. A. K. Sheikh Asstt. A. G. for Respondent. Dates of hearing: 15th and 16th July 1958. INAMULLAH, J.--‑ This is an appeal by one Sheru, who was convicted by the learned Sessions Judge, Khairpur Mir's on 23rd January 1958 under section 302, P. P. C. and was sentenced to death. The matter is also for confirmation of death sentence. The facts, shortly stated, are these :‑ The deceased Haji Arab, at the time of the incident, lived in the town of Khairpur with his son Ishaq and two nephews Abdul Hakim and Abdul Karim. The appellant Sheru was in the employ ment of Haji Arab for about six months. There were about 15 houses of Hindus in Bachal Shah locality where Haji Arab lived. Haji Arab was obliged to dismiss Sheru on the complaint of his Hindu neighbours, who alleged that Sheru used to misbehave with their women‑folk. The appellant visited the locality of Haji Arab about a week before the incident. On the complaint of the neigh bours, Haji Arab and his nephew Abdul Hakim went to the place where the appellant was and gave him a beating the appellant lodged a complaint before the A. D. M. Khairpur against Haji Arab, Abdul Hakim and two others for assault. On 18th July at about 8‑0 a.m. Haji Arab went to the Vegetable market and while he was returning the appellant attacked him with a hatchet in a lane. This place was at a distance of 15‑20 paces from the market. The deceased received five incised inju ries and died on the spot. The appellant, after having inflicted fatal injuries on the deceased Haji ‑Arab, was seen moving about with a blood‑stained hatchet. He made enquiries from some persons about Abdul Hakim. The appellant, however, failed to find Abdul Hakim. Muhammad Ishaq, son of the deceased, who was near about the place of the incident, came to the spot where his father was lying. Ishaq gave a call to Abdul Wahid, P. W., who was going to his office, to inform his uncle Muhammad Bux, who was also serv ing in the same office, that his father had been killed. Abdul Wahid P. W. brought Muhammad Bux to the scene of offence. Muhammad Bux went to the police, station and lodged the report at 8‑45 a.m. I may mention that the F. I. R. (Exh. 7) in the paper book gives the time as 8‑45 p.m. but the original gives the time as "8‑45 in the morning". Barkhurdar S. I. P., who, had recorded the F. I. R. went to the scene of offence where he found the dead body of Haji Arab. The Sub‑Inspector came back to the police station after having made enquiries from P. Ws. Kundan and Ramchand. After some time, the appellant himself came to the police station. He was, wearing blood‑stained clothes and had a blood‑stained hatchet iii his hand. The Sub‑Inspector secured the clothes and the hatchet of the appellant in the presence of Abdul Khaliq and Muhammad Bux mashirs. He prepared the mashirnama to that effect. The Sub‑Inspector arrested the appellant and then again went to the scene of offence to examine the rest of the witnesses. The appellant was taken to the F. C. M. Khairpur in the fore noon of 19th July 1957, where his confession was recorded. The appellant was challaned in the Court of A. D. M. Khair pur on 29th July 1957 and committed to the Court of Session on 29th October 1957, who agreeing with the unanimous opinion of the assessors, convicted him and sentenced him as mentioned above. The appellant in defence denied the offence. He stated that he was implicated because of enmity with Haji Arab, Abdul Hakim and his brother and that the prosecution witnesses have been set up by Abdul Hakim and his brother. Before the committing Magis trate, the appellant denied making any confession before a Magis trate. The appellant, however, admitted before the Sessions Judge making the confession, but alleged that he made it because the police gave him a beating and forced him to make the confession. He also denied that any blood‑stained hatchet or clothes were recovered from his person. The appellant admitted beating by Haji Arab and Abdul Hakim some 8 days before the incident. The evidence against the appellant consists of :‑ (1) The witnesses, who had seen the appellant inflicting injuries on the person of the deceased, namely, Imdadali, Rasool Bux and Allah Bux. (2) Ishaq P. W., having heard the commotion, came to the scene of incident and saw the appellant running away with a blood‑stained hatchet. (3) The appellant was seen soon after the incident by Ramchand, Ghulam Muhammad and Dhani Bux P. Ws. with a blood‑stained hatchet. (4) The recovery of blood‑stained clothes and hatchet in the presence of P. W. Abdul Khaliq mashir. (5) The motive which is alleged to be the enmity between the deceased and the appellant. (6) The judicial confession which the appellant is alleged to have made on the day after the incident. Mr. Murtza Hussain the learned advocate for the appellant, contested the oral testimony of the eye‑witnesses on two‑fold grounds. Firstly, he contended that the witnesses were not inde pendent. In the second place, he contended that better evidence of other persons, who were present at the scene of offence was available, but they have not been produced by the prosecution and therefore the evidence of these eye‑witnesses should be ignored. I have considered these contentions and I find that there is no force in them. Imdadali, Rasool Bux and Allah Bux admittedly belong to the same locality, where the incident took place. The incident is said to have taken place at about 8‑0 in the morning. It is not surprising if Imdadali and Rasool Bux had gone to take tea in a hotel, which was very near to their houses and while returning from the hotel saw the incident. The cross‑examination of these two witnesses is a short one and no motive is suggested to these witnesses as to why they would falsely implicate the appellant and let go the real culprit. The mere fact that Rasool Bux is distantly related to the deceased and Imdadali is a friend of Rasool Bux, is no ground to disregard their statements. Allah Bux P. W. was supervising the work of sweepers, who were cleaning nali of the street where the incident is said to have taken place. There is nothing in the cross‑examination of these witnesses to suggest that they were not likely to be at the scene of incident or that what they stated before the Court was not true. As for the second point the mere presence of some person's near about the incident does not necessarily mean that they were eye‑witnesses. No questions were put to Barkhurdar S. I. P. if there were other eye‑witnesses. The witnesses Ghulam Muhammad, Dhani Bux and Ramchand, who had seen the appellant going about with blood‑stained hatchet, cannot be disregarded on the ground that they are not independent witnesses. In the cross‑examination of these three witnesses no attempt has been made to suggest that what they had stated was false or that they were partial to the prosecution. In respect of blood‑stained clothes and hatchet the learned advocate for the appellant contended that the clothes and the hatchet were sent to the Chemical Examiner after about a month of the incident and therefore this evidence should be disregarded. It is true that the blood‑stained articles were sent rather late to the Chemical Examiner but this is not a sufficient ground to disregard this piece of evidence. The Chemical Examiner's report is that the hatchet, the loin cloth and the shirt were stained with human blood. The evidence of Abdul Khaliq mashir clearly proved that the blood‑stained clothes and the hatchet were taken by the police from the person of the accused. These articles were shown to the mashir and he identified the same to be those which were recovered from the appellant. There is nothing in the two‑lined cross‑exami nation of Abdul Khaliq to suggest that the blood‑stained clothes and the hatchet were not recovered from the person of the appellant. On the question of motive all that was contended by the learned advocate for the appellant was that the motive was not strong enough to have led to the incident. We know from experi ence that murders have been committed from very slight motive, to gain a small pecuniary advantage and sometimes on mere alter cation. Moreover, adequacy of motive is not of much importance. Proof of motive only weakens presumption of innocence and corroborates evidence of guilt. Mr. Murtza Hussain, the learned advocate for the appellant, raised two‑fold contentions in respect of the confession made by the accused. He, very strongly, contended in the first place that the confession should be ignored as the warning contemplated by subsection (3) of section 164, Cr. P. C. was not given. In the second place, he contended that the confession was not voluntary. Mr. Murtaza Hussain in support of his contention, that no warning as required by subsection (3) of section 164, Cr. P. C. was given, relied on the case of Mst. Said Begum v. The State (P L D 1958 Lah. 559). The present appeal had come in the usual course before a Division 'Bench of this Court. When the case of Mst. Said Begum was cited before the Division Bench it was of the view that the matter should be referred to a Full Bench as this authority required consideration. The facts of Mst. Said Begum's case necessary for the consi deration of the present point, shortly put, are these :‑ When Mst. Said Begum was produced before the Magistrate, "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." Changez, J. observed at page 565 as under:‑ It is a mandatory provision of law, which requires that the warning should be given before the recording of the confession. It obviously means that the warning is to be given before com mencing 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. In the case before us, the learned advocate, relying on Mst. Said Begum's case, contended that no warning was given to the appellant before his confession was recorded by the Magis trate. The appellant was warned at about 8‑0 a.m. that he was not bound to make a confession and that if he did so it may be used as evidence against him and thereafter was allowed time from 8‑0 a.m. to 9‑30 a.m. for reflection. The appellant was then sent for and asked if he was willing to make a confession and on his reply that he was so willing, he was asked as to how long and at what places he was under the police custody. The appellant was further asked if the police or anyone else had offered any inducement, threat or promise on account of which he was making the confession. On reply of the appellant in the negative, the Magistrate asked the appellant as to what he had to say and the confession was recorded. In order to appreciate the contention of the learned advocate, it would be convenient to reproduce section 164 of the Criminal Procedure Code, which reads as under :‑ " 164 (1) Any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the (State) Government may, if he is not a police‑officer record any statement or confession made to him in the course of an investigation under this Chapter or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial. "(2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried. (3) A Magistrate shall, before recording any such 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; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect :‑ I have explained to (name) 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. (Signed) A. B., Magistrate." The relevant provision which needs consideration is sub section (3) of section 164, Cr. P. C. Subsection (3) of section 164, Cr. P. C. precisely regulates the procedure to be followed by a Magistrate in recording confession. It casts three‑fold duties upon the Magistrate :‑ (1) He must, before recording the confession, explain to the person making it that he is not bound to make the confession and that if he does so it may be used as evidence against him. (2) The Magistrate should not record the confession of an accused person unless he is satisfied upon questioning the person making the confession that he was making the confession voluntarily. (3) The Magistrate, after he has recorded the confession, shall make a memorandum at the foot of such record to the effect as provided in subsection (3) of section 164, Cr. P. C. The question before me is whether the warning given by the Magistrate to the appellant that he was not bound to make a confession and if he did so it may be used as evidence against him was given "before recording" of the confession or not. After careful consideration of subsection (3) of section 164, Cr. P. C. I am clearly of the view that the warning so given by the Magistrate to the appellant was sufficient compliance of the law inasmuch as it was given before recording of the confession. It cannot be said by any stretch of imagination that the warning given by the Magistrate in this case was after he had recorded the confession. It is true that the warning was not given 6 immediately before the Magistrate commenced writing down the confession of the appellant, but it was all the same given "before" recording of the confession. The object underlying subsection (3) of section 164, Cr. P. C. is to safeguard the interest of an accused person. It prescribes procedure for the guidance of Magistrate recording confession in order to enable them to record only that confession which is voluntarily given. In order to achieve this object the law lays down that an accused person when produced by the police before a Magistrate must know what his rights and limitations are. He must know that he is not bound to make a confession though he may have been produced by the police before the Magistrate with that object. He must further know his drawback that if he chose to make the confession, it may be used as evidence against him. It is but proper that the accused after the warning must have some time to reflect whether he would like to make the confession. After the time given for reflection, the accused has again to be asked if he is willing to make the confession. On his reply in the affirmative, the Magistrate has further to satisfy himself by putting questions that the confession that the accused is going to make is a voluntary one. It is only after the Magistrate is satisfied that the accused is going to make a voluntary confession that he should record the confession. To my mind, when once the Magistrate has given the warning as a preliminary to the recording of the confession, subsection (3) of section 164, Cr. P. C. does not require the Magistrate to repeat the warning when commencing to write the confession. The warning so given is "before" recording of the confession. The Magistrate is required under subsection (3) of section 164, Cr. P. C. to fulfil two conditions before he records the con fession :‑ (1) He must give the requisite warning. (2) He must satisfy himself that the confession that the accused was making was a voluntary one. A question may arise, in view of these conditions, as to whether the Magistrate should give the warning first and then put the questions in order to satisfy himself that the confession he was going to record was made voluntarily. The language of subsection (3) of section 164 Cr. P. C. as well as the object underlying this provision leads one to the conclusion that the warning should be given first and then questions should be put to the accused in order to find out if the accused was going to make a voluntary confession or not. The reason is obvious. The accused, when produced before the Magistrate, must be told about his right that he is not bound to make a confession and that if he did make a confession it may be used as evidence against him. Once the accused is informed about his right, he might choose not to make a confession and that would be the end of the matter. Thereafter the obligation on the part of the Magistrate to put questions to the accused in order to judge whether the confession he was going to make was a voluntary one or otherwise would not arise. On the other hand, if a Magistrate was to start by putting questions to the accused in order to satisfy himself about the voluntary nature of the confession, it would presuppose that the accused was willing to make a confession. If the order in which the Magis trate has to proceed while recording confession is as stated above it cannot be said that the warning was not given "before" record ing of the confession. It is a general rule of construction that nothing is to be added or to be taken from a statute unless there are adequate grounds to justify the inference that the Legislature intended something which it omitted to express. On proper construction) of subsection (3) of section 164, Cr. P. C., it is not possible to read the word "immediately" before the word "before" in sub section (3) of section 164, Cr. P. C. All that the provision of Law requires is that the warning must precede the recording of the confession. It is possible to imagine a case where an accused is brought before a Magistrate and the Magistrate gives him warning and thereafter he gives time, say, an hour and a half to the accused for reflection. The Magistrate does not do any other work but waits while the accused is before him till the time for reflection has passed. The Magistrate then asks the accused if he was willing to make a confession. On his reply in the affirmative, the Magistrate puts him questions to satisfy himself about the voluntary nature of the confession and then proceeds to record the confession. Though an hour and half has elapsed between the warning and recording of the confession the continuity of the process of recording confession is not broken. It cannot be said under these circumstances that the warning was not given "before recording" of the confession. To my mind the continuity of the process of recording confession is not broken even if the accused after warning is asked to sit in the Court room and in the meantime the Magistrate, instead of sitting idle, does some other work. By Act XVIII of 1923, for the words "no Magistrate" the following was introduced in subsection (3) of section 164, Cr. P. C. :‑ " A Magistrate shall, before recording any such 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 . . . . . ." There are not many cases in which the import of the words "before recording" has been considered. The earliest case which is relied upon by Das, J. in Punia Mallah and others v. Emperor (A I R 1946 Pat. 169) is that of Emperor v. Panchkari Dutt and others (A I R 1925 Cal. 587). Das, J. while considering the effect of not repeating the warning on the next day when the confession continued to be recorded on the second day, observed at page 174 :‑ "There is a clear and direct authority on this point. Learned counsel for the appellants has referred to the case in A I R 1925 Cal. 587 Emperor v. Panchkari Dutt and others. In that case the confession was recorded on 15th and 16th December 1923. The Magistrate did not give any warning to the accused person on 16th December 1923. It was held that the statements made on 16th could not be received in evidence as having been voluntarily made". I find, however, on reference to the case of Emperor v. Panchkar Dutt and others that Mukerji, J. has not construed the effect of "before" in S. 164, Cr. P. C. Mukerji, J. in that case held that section 164, Cr. P. C. in spite of the amendment made in 192) did not apply to the confession recorded in investigation conducted by the police in the town of Calcutta. Mukerji, J. then considered whether the confession was voluntary or not. He held that as no warning was given on the second day of the record ing of the confession the confession was not voluntary. He did not consider the effect of the words introduced by the amend ment in 1923. The next case is that of Punia v. King Emperor (I L R 24 Pat. 646) a Division Bench case of Patna High Court. In this case Das, J. as already mentioned, relying on Emperor v. Panchkar Dutt and others held that where the confession was recorded on two dates and no warning was given to the accused on the second day, the confession was not admissible in evidence. These cases namely, Emperor v. Panchkari Dutt and others and Punia v. Emperor were considered by a Division Bench of Madras High Court in re Kakana Ramana Reddy and others (A I R 1953 Mad. 74). The learned Judges observed as under : "Our attention was drawn at the time these appeals were admitted to Punia Mallah v. Emperor ; 24 Pat. 646, a Bench decision of the Patna High Court in which Das, J. took the view that where a confession was recorded from an accused person on the 27th of October 1943 and continued to the 28th of October 1943, without any further warnings being given on the second day, there was a failure to comply with S. 164 (3). With great respect we are unable to follow that view, which followed the view taken by Mukherjee, J. in Emperor v. Panchkowri Dutt, 52 Cal.

67. Mukherjee, J. sitting by himself took the view that where a confession made on one .day was continued the next day and the Magistrate did not question the accused again and there was nothing to satisfy himself that the confession made on the second day was voluntary, that part of the confession so made was inadmissible. With respect we find it extremely difficult to split up a confession made one day and continued the following day into something partly admissible and partly inadmissible and think either the whole confession should be admitted or rejected. In the Patna decision, it was pointed out by Das, J. that the confession as regards the particular dacoity with which that accused was concerned, was narrated on the second day on which no warnings were given. In this particular case by far the greater part of the confession was made on 3‑1‑1950 and all that would according to the view taken by Mukherjee, J. be admissible and only the latter portion recorded on 4‑2‑1950 would be ruled out. We have not hesitation in taking the view that it is sufficient if before commencing to record a confession, a Magistrate puts the necessary questions required by S. 164, Cr. P. C. to the accused and that it is not mandatory that he should keep on repeating these questions to him after every break in the recording of a long confession". In Rangappa Hanamappa and another v. State (A I R 1954 Bom. 285) Gajendragadkar, J. observed at page 288 :‑ "There can be no doubt that the questions prescribed by the Circulars had to be put by the learned Magistrate on the second day, because S. 164, with reference to which the said Circulars have been issued, requires the precaution to be taken before recording confessions. He, however, held that this was a mere irregularity. The cases namely, Emperor v. Panchkari Dutt and others ; Punia v. King Emperor and Rangappa Hanamappa and another v. State are clearly distinguishable. An analysis of these cases would show that the continuity in recording the confession was broken. The confession could not be completed on the first day and the accused persons had to be sent to jail in police custody. They must have been brought before the Court on the following day for confession in police custody. under these circumstances, the intention underlying subsection (3) of section 164, Cr. P. C. could not be achieved unless the accused persons were again warned. Where, however, the continuity on recording the confession is not broken as in the present case or, as in Mst. Said Begum's case, I am clearly of the view that nor further warning is contemplated under subsection (3) of section 164, Cr. P. C. The interpretation of the relevant words "before recording" of a confession occurring in subsection (3) of section 164, Cr. P. C. came for consideration before a Division Bench of the Judicial Commissioner's Court, Sind in Dur Muhammad and another v. Emperor (A I R 1930 Sind 305) Percival, C. J. observed :‑ "The main evidence against the accused is his confession. The learned pleader for the accused has taken objection on the ground that the accused was not warned immediately before the confession was recorded by the Magistrate, but there is no ruling to the effect that this warning should be given imme diately before the confession is recorded, or should be repeated again just before the prisoner's arrival before the Magistrate. It maybe noted that the Magistrate went to the length of allowing the accused seven hours to think over the question and to decide whether he would make a confession or not. There are instructions that time should be allowed for reflec tion, and the Magistrate has certainly given full effect to these instructions". I would, for the reasons given above, respectfully disagree with the view taken in Mst. Said Begum's case and hold that the warning given to the appellant, under the circumstances of the case, was sufficient compliance of subsection (3) of section 164, Cr. P. C. Mr. Murtaza Ali, the learned Advocate, has also contended that the confession was not voluntary. In support of his contention that the confession was not voluntary, he relied on the circumstance that the accused was produced by the police on the second day of the incident. He elaborated his contention by stating that the Magistrate was available at a very short distance from the place of incident and the Sub‑Inspector should have produced the accused before the Magistrate on the very day of the incident. It would appear from the statement of the Sub‑Inspector, Barkhurdar, who had conducted the investigation of the case that by the time he had recorded the statements of the prosecution witnesses and sent the dead body for post mortem examination, the Court time was over and he could not send the accused for his confession. No question has been put to the Sub‑Inspector in cross‑examination to suggest that the accused was given any promise or threat to give this confession. The short cross -examination of the Sub‑Inspector by the advocate of the accused runs as under :‑ "I was examined in the lower Court. In that Court I may have not mentioned that I went to the garden also, in search of the accused. I had not begun the investigation on the complaint of the accused, received from the Court of the A. D. M. Khairpur. I received it on 18th July 1957. This is the only cross‑examination by the advocate of the accused. There is nothing on the record to suggest that the accused did not give his confession voluntarily. In this connection, it is also necessary to mention that the rules applicable for the guidance of Magistrates in recording confessions, within the jurisdiction of the Karachi Bench of West Pakistan High Court is not what is provided under Chapter 13 G Vol. 3 of the High Court Rules and Orders. In this connection a reference may be made to section 10 of the Establishment of West Pakistan Act, 1955. Relevant provision of section 10 of the said Act runs as under :‑ "

10. Continuation of laws.‑(1) Except as otherwise provided in this Act, and subject to any order of the Governor‑General under section 5 of this Act and to the powers of any competent legislature, all laws in force in West Pakistan immediately before the appointed day shall continue to apply to the areas and the persons to whom they would have applied if this Act had not been passed. (2) For the purposes of this section "law" includes any Act of the Parliament of the United Kingdom, any law passed by p.; a competent legislature in India or Pakistan and any Order‑in -Council, Letters Patent, Ordinance, order, regulation, rule, bye‑law or public notification made or issued by a competent authority." Under section 554 (ii) (b) and (c) of the Criminal Procedure Code, certain rules were framed by the Judicial Commissioner of Sind with the previous sanction of the relevant Government for the guidance of the Magistrates while recording confession of the accused. So far as I am aware these rules have not been superseded so far by any competent authority within the meaning of section 10 of the West Pakistan Establishment Act, 1955. It is not necessary to reproduce the various instructions that have been given to the Magistrates regarding the confession of an accused person. They are given in Chapter VI. Part C at page 111 of the Criminal Circulars published on 22nd April H 1953. The relevant rules for the purposes of the point involved are 2, 3 and 4 at page 11I of the Criminal Circulars. They run as under:‑ "(2) The Magistrate should remove the accused from the custody of the police who bring him and should place him in the custody of his revenue peons or his own police orderlies. (3) The Magistrate should then explain to the accused that he is not bound to make a confession and that, if he does so, it will be taken down in writing and may thereafter be used as evidence against him. (4) The Magistrate should then allow the accused time for reflection, during which the police who brought him and the investigating police shall not be allowed to have access to him. This time should be at least one hour". The circular then gives directions to the Magistrate to put questions to find out whether‑the accused is willing voluntarily to make the confession or not. The Magistrate, in the present case, has substantially complied with the instructions that are contained in the Criminal Circulars applicable to the Magistrates within the jurisdiction of this Bench. For the reasons given above, I would dismiss the appeal and confirm the sentence of death. CONSTANTINE, J.

‑ I agree, and out of respect for the Division Bench from whose ruling we are dissenting, I state my reasons briefly. The word "before" does not mean "immediately", "before". You must justify restricting the generality of an expression by the context, the object of the section, or some such reason. Here the object of the section is to ensure that the accused, probably l ignorant and possibly dull witted, understands his position, and to refuse time for the warning to sink in is, I consider, to defeat, rather than to advance, the intention of the legislature. The second point is that the regulation of the practice and procedure of Magistrates continues to be a matter for the High Court as a whole under the Constitution (Article 5 of the Third Schedule) as it was under the Government of India Act. The function of a Division Bench is not to legislate, but to adjudicate. It cannot lay down a procedure, and so it cannot say that because the procedure has not been followed, therefore, as a matter of law the confession must be rejected. If it does so, as a matter of fact, then its decision is confined to the facts of that case. I would make it plain to Magistrates in the area of the former Province of Sind that they continue to be governed by the Criminal Circulars issued by the Chief Court of Sind with the approval of Government in particular, time for consideration should continue to be given after the warning. There is of course nothing to prevent a second warning immediately before recording the confession. Similarly the question "Why are you confessing?" May produce an answer positively shewing the state of mind of the accused for instance (as in my own experience as a Magistrate) that his reason for confessing is that his co‑accused has split upon him or that he may as well, make a clean breast of the whole affair. MUNSHI, J.

‑ I agree. I would, however add a few lines to what my learned brethren have said on the subject of confession. The intention of the Legislature in enacting section 164, Cr. P. C. is to ensure that the confession which the prisoner is disposed to make, is not made as a result of inducement, threat or a promise or any maltreatment on the part of the police or person in authority. Subsection (3) of section 164, Cr. P. C. requires the Magistrate, before whom the prisoner is brought for recording his confession, to first tell the prisoner that he is under no obligation to make a confession this is done with a view to assure him that he would not come to any harm, if he revised his decision to make a confession, or went back on his under taking, if any, given by him to the police. After thus informing him of the exact position in which he should consider himself, the Magistrate is to warn him that if he made a confession it would be taken down in writing, and that may be used as evidence against him at the trial. If, despite this assurance and warning, he is inclined to make a confession, the Magistrate is to put him questions, to the nature and number of which, no limit is prescribed, in order to satisfy himself that the confession, which he is disposed to make, is made voluntarily. After he is thus satisfied, he will proceed to record the confession, and then, at the end of it he has to append a certificate as to its voluntariness. Oar learned brethren, in Mst. Saeeda Begum's case, have no doubt recognised the importance of warning, but the point on which we find ourselves in disagreement with them, is, as to whether, the prisoner should or should not be given an oppor tunity for 'reflection after the warning. The procedure laid down in that judgment, read as it is, does not make any provision for an opportunity for reflection after the warning. According to that procedure, when the prisoner is brought before the Magistrate, the latter is first required to have his handcuffs removed, and also the police guard which brought him to the Court, the idea being, that he may be able to ponder calmly in a healthy atmosphere, where there is no policeman to influence him, and then, when he is brought back before the Magistrate, the latter has to give him the necessary warning, and immediately thereafter he has to commence recording his confession. If this procedure is allowed to hold the field, the position will be, that, when the prisoner is given an opportunity for calm consideration, he, at that time does not have the benefit of the warning contemplated by subsection (3) of section 164, Cr. P. C. on the other hand, when the warning is given, he does not have an opportunity for consideration. This, in my opinion, will defeat the very object of S. 164 (3), Cr. P. C. Here is a man disposed to make a confession presumably as a result of an inducement, threat or a promise, on the part of the police, in whose custody he has remained till the time he is brought before the Magistrate ; and up to that stage, he has before him only one side of the picture which was painted before him by the police, during the period he was in their custody. So, unless he is shown the other side of the picture as contemplated by S. 164 (3), Cr. P. C., and told, that serious consequences will flow from the confession which he has come prepared to make, the object of giving him time for reflection, will not be achieved, for, without the necessary warning, the material on which he will ponder will be the same as supplied to him while he was in police custody, and on this material, he has already taken a decision. Better atmosphere, without the necessary warning, in my opinion, will not improve matters. With the warning, a new situation arises. The prisoner gets fresh material for reflection. He can now take an indepen dent decision in the light of the warning. It is a common knowledge, that, before the prisoner is brought before the Magistrate for recording his confession, the police, in order to nullify the effect of the warning, which they know, the Magistrate will give, take jolly good care to create prejudice in his mind, against the Magistrate. Placed in such a state of mind, it will be too much to expect of him to take a decision on such a, vital point without reflection. The above procedure will also not be in conformity with the latter part of subsection (1) of S. '164, Cr. P. C. which provides that the Magistrate may put questions to the prisoner, after he shows readiness to make a confession after the warning. This provision of law cannot be given effect to, if the confession is to be recorded immediately after the warning. I therefore, with all due respect, disagree with the view taken by my learned brethren in Mst. Saeeda Begum's case. A. H. Appeal dismissed.