1969 P Cr (PLP)

13. In the case of Mst. Bakhat Bano v. The Crown (P L D 1950 Lah. 68) their Lordships of the Lahore High Court held that a confession is inadmissible in evidence unless the Magistrate is found to have made real and substantial enquiries before recording it. It was further held in that case that irregularities in recording a confession can be cured under section 533, Cr. P. C., but it is only when the Court is satisfied that the confession had been made duly though it was not recorded duly. Thus only formal defect in recording the confession is cured under section 533, Cr. P. C. Any defect arising out of violation of any mandatory provision of law is not curable under the said section.

14. In the case of the Crown v. Labau Magh (9 D L R 46), Rahman, J. while delivering judgment of a Division Bench of this Court observed as follows; "Finding himself faced with this difficult situation, Mr. Chowdhury argued that unless a confession is shown to be absolutely voluntary, it is not admissible in evidence and, in the case before us, he argued, there being no such satisfactory proof the confession cannot be admitted in evidence at all. In support of this contention he has placed great reliance upon the case of Emperor v. Panchkari Dutt 29 C W N 300, where Mukerji, J. expressed, inter alia, the view that `in order to ensure the voluntariness of a confession, the questioning of the accused before he makes the confession forms a factor, the importance of which can seldom be overestimated. It has been enjoined in decisions of which the number is legion that the Magistrate must question the accused with a view to dis covering whether the prisoner confesses voluntarily, and this questioning must be in pursuance of a real endeavour to find out the object of it, the requirement not being satisfied by putting a few formal questions.' He then went on to examine the questions put by the Magistrate in that case, and came to the view that the questions that had been put were useless for the purpose and furnished no sufficient data for coming to the conclusion that the statement was voluntary. Indeed his Lordship observed that the Magistrate had in that case not only questioned him to find out whether he was making the statement voluntarily, but on the contrary, had directed him to make the statement voluntarily. We have no reason to disagree with the propositions of law adumbrated by Mukherji, J. but on examination of the question put to the accused by the Magistrate in the present case to test the voluntariness of the confessional statement, we find them to be materially different from those with which Mukherji, J. had to deal as will appear from the questions and answers set out hereunder: Q.‑Will you really confess? A.‑Yes, it is a fact that I shall confess. I could not stand the sight, so I murdered. What is the use denying confession? Q.‑Did anybody belabour you? A.‑I have no enemy. Nobody has beaten me. It is a fact that I murdered, as I could not tolerate. Q.‑You will not say anything other than truth? A.‑I shall speak the truth. We are satisfied from the above that the questions put really endeavoured to find out if the accused was voluntarily making the confession, and the answers given leave no room for doubt that the accused was voluntarily making the confession without any inducement or threat from any quarter."

15. In the present case the learned Magistrate signed the printed certificate in para. 5 of the form prescribed for recording confession. It runs thus: "I now carefully explain afresh to the accused‑ (1) that I am not an officer of Police but a Magistrate ; (2) that he is not bound to make a confession ; (3) that if he does make a confession it may be used in evidence against him ; (4) that he should not say anything because others have told him to say it but is at liberty to say whatever he really desires to say ; (5) that he should say nothing which is untrue ; and I sign my name hereunder in token that these matters have been fully explained and that he appears to me to understand them." It is thus clear that the questions put in the case reported in 9 D L R 46 are not materially different from what appear in paragraph 5 of the printed form. But the actual questions put by the Magistrate under column 6 of the form are the following "Q.‑You know that I am not a Police Officer but a Magistrate. Q.‑You know that you are not bound to make any confession and that your confession may be used against you." To both the questions each of the appellants replied in the affirmative. P. W. 11 Mr. K. A. Islam has stated in his cross‑examination `I have mentioned all the questions that I put to the accused in the form'. Thus what has been stated in paragraph 5 is inconsistent with the questions appearing under paragraph

6. It is absolutely clear from the aforesaid statement of the Magistrate himself that he put no other questions to the accused except those which have been recorded under para.

6. It amounts to this that the Magistrate did not tell the appellants that they should not say anything because others told them to say it and that they were at liberty to say whatever they really desired to say and that they should say nothing which is untrue. In the 9 D L R 46 case the accused was asked whether he would really confess and whether any body belaboured him and he was further cautioned in the form of a question that he should not say anything other than truth. The answers given by the accused in that case manifestly showed that the accused was in a state of emotion and he wanted to make a clean breast of the murder he had committed. The instant case is altogether different. It is perfectly clear from a careful reading of the confessions along with the evidence of Mr. K. A. Islam that there was no real endeavour to find out why the appellants wanted to make the confessions.

16. Another decision is relevant to the facts of the present case and that is the case of Juma and others v. The Crown (P L D 1954 Lah. 783). In that case Shabir Ahmed, J. who delivered judgment of the Division Bench in the Lahore High Court observed: "The question whether or not a Magistrate, who records a confession under section 164 of the Code of Criminal Procedure, was satisfied that the confession was voluntarily made is one which will have generally to be decided on the statement of the Magistrate because it relates to the state of his mind at the particular time."

17. After quoting subsection (3) of section 164, Cr. P. C the learned Judge proceeded to observe further as follows: "Though this subsection makes it incumbent that the person brought before a Magistrate during the course of investigation to make a confession should be told that he was not bound to mate a confession, and if he does so, it may be used as evidence against him, yet it leaves to the Magistrate to ask such questions as he considers necessary to satisfy himself that the confession was being made voluntarily. The mere fact that the questions prescribed by this Court in Correction Slip No. 73, dated the 14th January 1953 were not asked could not by itself be sufficient ground for holding that the Magistrate who recorded the confession, was not satisfied that the confession, was voluntarily made as the confession, will be irrelevant under section 24 of the Evidence Act only if it appears to the Court called, upon to deal with the confession that it had resulted from inducement, threat or promise proceeding from a person in authority. The mere fact that the questions mentioned in the instructions issued by this Court are not asked cannot be held to prove that the confession was the result of inducement, threat or promise, though the Magistrate who fails to ask those questions will be remiss in the discharge of his duties. It is for the Court, before which a confession is sought to be used, to decide whether or not section 24 hits the confession and if a Court is satisfied that in spite of the instruction, as distinguished from mandatory provisions of law, not having been satisfied the confession was voluntary, non‑compliance with the instruction contained in the printed form prescribed by this Court would not be sufficient ground for holding that the confession was irrelevant or inadmissible."

18. The satisfaction of the Magistrate as to the voluntary nature of the confession no doubt relates to the state of his mind at the time the confessional statement is recorded. The Magistrate might have been in a particular state of mind at the time of recording the confession and might have been satisfied that the confession was voluntarily made, but when he would be in a different state of mind at some other time he would perhaps not be satisfied about the voluntary nature of the confession. The satisfaction of the Magistrate is, of course, important but it is for the Court before which a confession is sought to be used to decide whether the confession was actually voluntary. The Magistrate's satisfaction will have to be examined in the light of the questions put by him to the accused and the answers given by the latter. Those questions must be put in pursuance of a real endeavour to discover whether the confession was voluntary or whether it was caused by torture or tutoring or inducement, threat or promise proceeding from a person in authority. With great respect, we are unable to agree with the learned Judge that a confession will be irrelevant under section 24 of the Evidence Act only if it appears to the Court called upon to deal with the confession that it had resulted from inducement, threat or promise proceeding from a person in authority regard being had to the fact that the whole purpose of section 164 (3) is to ensure voluntariness of the confession apart from and irrespective of its being hit by section 24 of the Evidence Act. It is evident from the wording of subsection (3) that the Magistrate should suo motu be satisfied by questioning the accused as to the voluntariness of the confession. In fact, the question of the accused by the Magistrate forms the very basis of the satisfaction. The importance of questioning in pursuance, of a real endeavour to find out the voluntariness or otherwise of the confession can hardly be over‑emphasised.

19. The Magistrate who recorded the confession having come to the witness box and deposing as P. W. 11 has, no doubt, said, that he believed that the confession was voluntarily made. Whether there was a sound basis for this belief is a matter for examination by the Court which deals with the confession. We have already found that the mandatory provisions of section 164(3) of the Criminal Procedure Code have not been complied with in this case. For that reason the confessions are inadmissible in evidence.

20. In view of the above findings, it is hardly necessary to go into the questions of correctness of the confessions. Yet the question may be examined briefly ; appellant Okiluddin has stated in his confession that he assaulted the deceased Sattar Chowdhury with a lathi and accused Jahim, Atikur, Rustom and Ghutu slaughtered him. But the other five appellants stated in their confessional statements that Jabbar caught the head of Sattar Chowdhury and Okiluddin slaughtered him. The story that Jabbar Chowdhury was at the root of this murder and that he participated in the act of killing of the deceased has not been given up. In the circumstances, we are unable to hold that the confessions are true.

21. Thus in any view of the case, convictions of the appellants on the basis of the confessions cannot be maintained.

22. The evidence as regards any of the circumstances is unworthy of credit. At any rate, the prosecution has failed to prove the facts constituting the circumstances alleged by them beyond reasonable doubt. It may be observed in this connection that none of these circumstances is such an incriminating fact as may be considered incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than the guilt of the accused persons.

23. It was held in 8 C W N 278 that it is a fundamental principle, and one of universal application in cases on circumstantial evidence, that in order to justify any inference of guilt the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis other than that of his guilt. This is the principle of law which has been consistently followed in all subsequent judicial decisions.

24. After giving careful thought to the entire evidence and circumstances of the case and the points of law involved in it, which we have considered above, we find that the prosecution has failed to bring home the charge against the appellants. The result, therefore, is that the appeal be allowed, the conviction of the appellants and the sentence passed on each of them are hereby set aside. It is directed that the appellants be set at liberty forthwith, if not wanted in any other connection. MAKSUM‑UL‑HAKIM, J.‑I agree. Appeal allowed.