1989 PLP 1704 (MLD)

It was contended by the learned counsel for the appellant that there was no direct ocular evidence to connect the appellant with the a4acged crime. That the only evidence available with the prosecution was foot prints test and retracted judicial confession. As far as the footprint test was concerned, the learned trial Judge has discarded the same. So far as the confession was concerned it was retracted and the learned Magistrate Mr. Rasool Bux who recorded confession did not inform the appellant that he was before the Magistrate and therefore even on this score alone no reliance could be placed on confession. The learned Counsel for the State has contended that in view of the fact that confession does not show that the appellant was informed by the Magistrate that he was before the Magistrate and the same was retracted, he would not support the conviction. I have considered the contentions of the learned counsel. There is total absence of direct evidence to connect the appellant with the alleged crime. As far as footprint test was concerned, it has not been relied upon by the learned trial Judge and for cogent reasons. The mashirnama of wardat shows, that there was grass at the place of wardat and footprints were not visible and therefore the learned judge was right in discarding the evidence of footprint test. Adverting to the next piece of evidence i.e. the retracted judicial confession, it will suffice to say that the confession does not show that the appellant was informed by the learned Magistrate Mr. Rasool Bux Baloch that he was before a Magistrate; although Mr. Rasool Bux Baloch stated in his evidence that he had informed the appellant that he was before a First Class Magistrate. In the case of Ramzan v, The State‑PLD 1966 WP Kar. 242 it was observed by this Court that: "Cr.P.C. section 164 (3)‑nothing on record to show that warning contemplated by section 164(3) had been given to accused, confessional statement, held, inadmissible though Magistrate recording confession deposed at trial that such warning had been issued." In the case of ABDUL HALEEM v. THE STATE (1984 P. Cr. L J. page 611), it was observed by a Division Bench that: "Courts must look for strict compliance of subsection (3) of section 164 CrPC before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrates who arc charged with a duty of recording confession do not take the process of recording confession seriously with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that the procedure which is followed in recording confession is reiterated for, their guidance. Magistrates would be well advised to follow the procedure which is given below:‑ "As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before Court but would be remanded to judicial lock‑up, He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following questions should be put to him:‑ (i) For how long have you been with police? (ii) Has any pressure been brought to bear upon you to make confession? (iii) Have you been threatened to make confession! (iv) Has any inducement been given to you? (v) Why are you making this confession? (vi) Have you been maltreated by police?" After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him, as are, given in the printed form and then he should proceed to record his confession in verbatim." In view of the above factual as well as legal position I am of the considered view that since the learned Magistrate had failed to inform the appellant that he was before a First Class Magistrate and the accused was not p asked to as to. why he was m king confession the confession was vitiated and was inadmissible in evidence; moreover it has been retracted and is not corroborated. Since there is no other piece of evidence available against the appellant, I allow this appeal, set aside sentence arid the conviction of the appellant, and he is acquitted of the charge. He shall be released forthwith if not required in any other case. N.H.Q./A‑546/K Appeal allowed.