1989 P Cr (PLP)

Date of hearing: 30th October, 1988. By this petition under section 439 of the Cr.P.C. Ahmad convict seeks the revision of the judgment of the learned Additional Sessions Judge, Faisalabad, dated 3‑10‑1988 dismissing his appeal against his conviction and sentence recorded under section 13 of the Arms Ordinance, 1965, by a judgment of the learned trial Magistrate, dated 19‑8‑1987. The petitioner was sentenced to suffer R.I. for one year.

2. The petitioner was one of the accused persons in a murder case, viz. F.I.R. No. 235, dated 20‑9‑1986. He was arrested in connection with that case and according to the prosecution had allegedly led to the recovery of the weapon of offence, a 12 bore gun, from his house. Accordingly, he was challaned under section 13 of the Arms Ordinance, 1965.

3. It is noteworthy that the murder case is pending trial in the Sessions Court.

4. The challan in the Arms Ordinance case reached the Court of the learned Magistrate on 6‑12‑1986, Copies were supplied to the petitioner on the same day and charge was framed on 20‑12‑1986, and the case was then adjourned for evidence, from time to times till 26‑7-1987, when the petitioner allegedly made a statement under section

243. Cr.P.C. saying that he had on 8‑10‑1986 led the police to his house and produced the weapon of offence, a .12 bore gun. He added that he had no licence for the gun. After recording the confessional statement, the learned trial Magistrate adjourned the case to 29‑7‑1987, when it was adjourned to 19‑8‑1987 for orders. In the meantime, on 1‑8‑1987, the petitioner made a written application before the learned Magistrate saying that on 26‑7‑1987 he was induced by the Assistant District Attorney and then by the Naib‑Court to put thumb‑impression on his alleged confessional statement assuring him that he would get rid of the case; that he was an illiterate person and did not know what he was doing; that when the case was adjourned, he learnt that his thumb‑impression had beer, obtained on a confessional statement. He, therefore prayed that the alleged confessional statement should be set at naught, for, he had not made any such statement. This application was supported by an affidavit of the petitioner. The learned Magistrate, by his order, dated 19‑8‑1987. convicted the petitioner on the basis of his confessional statement dated 26‑7- 1987. As regards his application retracting his alleged confessional statement, the learned Magistrate observed that the confessional statement was made by the petitioner before him; that he had himself dictated it to his Reader and that there was, therefore, no merit in the allegation that the petitioner had been induced to sign the confessional statement by the Assistant District Attorney and the Naib -Court.

5. Before the learned Additional Sessions Judge, one of the grounds of appeal was that the petitioner had not made the confessional statement and that his thumb‑impression had been obtained in the circumstances stated above. The learned Additional Sessions Judge did not advert to this point and was content to hold that as the conviction was based upon a confession, no appeal lay under section 412, Cr.P.C.

6. Now the alleged confessional statement was purportedly recorded under section 243, Cr.P.C. That section applies when the formal charge is framed and the accused is asked whether he admits that he has committed the offence with which he is charged; if he admits that he has committed the offence, his admission is recorded and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. Here, the petitioner had denied the charge when he was formally charged on 20‑12‑1986. As seen above, it was long thereafter, that is on 26‑7‑1987, that his alleged confessional statement was recorded. No reason appears why he should have on that date volunteered to confess his guilt. It is also significant to note that this was the weapon with which the petitioner had allegedly committed the murder subject of F.I.R. No. 235, dated 20‑9‑1986. At the date of the confessional statement the murder case was pending trial and obviously the petitioner must have been conscious of the fact that the conviction under the Arms Ordinance could be used against him in the murder case. It is also important to note that on 26‑7‑1987, the petitioner's counsel was, not present and there is nothing to show that he was asked to consul, leis counsel before making his alleged confessional statement. All these facts should, in my view, have been put the learned trial Magistrate as to the voluntary nature of the alleged confession. The question before the Warned trial Magistrate, in the circumstances of the case, was not whether he had made the confessional statement; it was whether he had voluntary made it and that necessitated an injury into the allegation that the petitioner had been induced to do so by the Assistant District Attorney and the Naib‑Court attached to the Court of the learned trial Magistrate. Unfortunately, neither the learned trial Magistrate for the learned Additional Sessions Judge applied his mind to this aspect of the matter

7. For these reasons. I would accept the revision petition, set aside the conviction and sentence and send the case back to the learned trial Magistrate for deciding it after deciding the question whether the alleged confessional statement was voluntarily made. S.A./A‑525/L Case remanded.