P (PLP)

SHABIR AHMAD, J.‑Wali Muhammad has been convicted by the learned Sessions Judge, Montgomery, on two counts of murder and sentenced to death oh each of the counts. He has appealed against his conviction through jail and the record of the case is also before this Court for the confirmation of the death sentences. The allegations against the appellant are that he had on the night between the 12th and 13th of March 1949 sometime about midnight murdered Mst. Jangiran and his own nephew Muhammad Ali. The prosecution evidence shows that about three months before her murder, Mst. Jangiran had been divorced by the appellant possibly because he suspected that she had illicit connection with his nephew Muhammad Ali. About the murder of Mst. Jangiran the prosecution produced two witnesses, i.e., Karam (P. W. 1) and Muhammad (P. W. 5). Karam (P. W. 1) is the stepfather of Mst. Jangiran and it was at his house that Mst. Jangiran was sleeping on the night when she met with her death. Karam states in Court that Mst. Jangiran was sleeping on a cot which was lying between his cot and that of his wife and that at about midnight he heard Mst. Jangiran shouting " hai; hai " and as he got up he saw the appellant giving blows to her. Karain goes on to say that he raised an alarm and the appellant ran away. The statement of Karam is corroborated by the statement of Muhammad (P. W. 5), who is a neighbour of Karam and states that at about midnight he heard an alarm raised by Karam on hearing which he went to the house of Karam and saw Mst. Jangiran lying murdered on her bed. This witness goes on to add that Karam told him that Mst. Jangiran had been killed by the appellant. About the murder of Muhammad Ali the prosecution relies on the depositions of two witnesses, namely, Ali Muhammad (P. W. 8) and Ali Muhammad (P. W. 9). Ali Muhammad (P. W. 8) states that he saw the appellant causing injuries to Muhammad Ali which resulted in the death of Muhammad Ali. Ali Muhammad (P. W. 8) appears to have been employed by Muhammad Ali deceased, to help him in his cultivation and on the night of the murder of Muhammad Ali was sleeping on a charpoy very near the charpoy of Muhammad Ali. Ali Muhammad (P. W. 9) deposes that a little after midnight he heard a hue and cry raised by Ali Muhammad (P. W. 8) and on going to the spot was told by Ali Muhammad that the appellant had murdered Muhammad Ali. Besides the evidence of the witnesses mentioned above, there is another piece of evidence which connects the appellant with the double murder and that is the confession which the appellant made before a Magistrate of the First Class, on the 15th of March 1949. The Magistrate, who recorded the confession, has appeared as a witness. He deposed that he took all the precautions that were necessary and satisfied himself that the confession was being made voluntarily by the appellant. The record of the confession also makes it clear that all the‑precautions that could possibly be taken were taken in the case and the Magistrate had satisfied himself that the confession was being made voluntarily and not due to any pressure by the police or by somebody else. The learned counsel, who appeared for the appellant, contended that, because the Magistrate did not record the confession in the form of questions, and answers, the confession should be excluded from consideration. The learned counsel relied on the decision of a Division Bench of this Court reported as 1950 Pakistan Law Decisions 68 (Mst. Bakhat Bano v. The Crown) for the proposition that the confession should be recorded in the form of questions and answers. We are of the view that a confession under section 164 does not require to be recorded in the form of questions and answers and it would in most cases be impossible to record the confession in the form of questions and answers because the Magistrate to whom a person charged with an offence is taken so that his confession may be recorded does not generally know what the case is. The confession in this case must, therefore, be held to have been properly recorded and to be admissible in evidence: Coming to the other evidence. Jed by the prosecution, we see no reason to doubt the deposition of Karam who was an eye witness of the murder of Mst. Jangiran, nor is there anything on the record to make us doubt that the statement of Muhammad (P. W. 5) is anything but the truth, What we have said about Karam (P. W. 1) and Muhammad (P. W. 5) applies with equal force to Ali Muhammad (P. W. 8) and Ali Muhammad (P. W. 9) who are not proved to have any motive to implicate the appellant falsely. As the prosecution evidence has, in our opinion, brought home the guilt to the appellant, the conviction of the appellant for both the murders is upheld. Next question is one of sentence. The learned counsel for the appellant urged that the sentence of death was not called for. We have given consideration to the arguments addressed by counsel for the appellant for the reduction of sentence the death sentence should not have been passed. The appellant in his confession stated that he had a few hours before he made the murderous assault on Mst. Jangiran and Muhammad Ali seen them having sexual intercourse with each other and that had made him lose his temper and led him to commit the double murder. Even if we accept the statement of the appellant made in his, confession as correct, we do not see that a reduction of sentence is called for. He had divorced his wife about three months before the murder and as a reasonable man he should not have felt provoked if the woman whom he had divorced had sexual intercourse with, anybody else, As there is no ground for the reduction of the sentence, the sentences of death imposed upon the appellant are confirmed and the appeal is dismissed. MUHAMMAD MUNIR, C. J.‑ I agree that for the reasons given by my learned brother, this appeal should lie dismissed and the sentences of death confirmed and need do no more than examine the validity of the contention that the confession made by the appellant before Mr. Inait Ali Khan, Magistrate, 1st Class, on 15th March 1949 is inadmissible. The point taken is that since the Magistrate recorded the confession in the narrative form and not in the form of questions and answers he acted in contraven tion of section 364 of tire Code of. Criminal Procedure and that, therefore, the record of the confession is inadmissible in evidence. The argument is sought to be founded on certain, observations to be found in Mst. Bakhat Bano v. The Crown, P. L. D. 1950 Lah.

68. In that case the Magistrate had recorded the confession under section 164 of the Code of Criminal Procedure without making any real endeavour to discover whether it was voluntary and had taken it down in the narrative form. Sir Abdur Rahman, A. C. J., with whom Zaman, J. agreed, held the confession to be inadmissible mainly because the Magistrate is not making any attempt to ascertain whether the confession was voluntary or not had disobeyed the mandatory, provisions of section 164 of the Code of Criminal Procedure. Dealing with the question whether a confession made before a Magistrate in the course of police investigation should be recorded in the narrative form or in the form of questions and answers, the learned judge said :‑ " It shows that .he .had put, no questions to the appellant and recorded the statement. In the narrative form. The object why section 364, Criminal Procedure Code, requires questions to be put by the Court is two‑fold. Firstly, that the accused may not be allowed to relate a set story which 'he may have been tutored to reproduce and secondly, that he may be asked to explain anything. which in the opinion of the Court needs an, explanation. Thus in failing to put any questions and to record the answers given in reply, the Magistrate allowed the very object with which the section was enacted to be defeated and did not exclude the possibility of a carefully pre‑arranged story being related to him." There observations undoubtedly lend themselves to this construction that a confession made to a magistrate under section 164 of the Code of Criminal Procedure should be recorded in the form of questions and answers and not in a narratiye form, If that is the true effect of that decision, then with all respect, I find myself unable to agree with it. In order to seek an answer to the question involved it is necessary to examine the terms of the relevant sections of the Code of Criminal Pro cedure and the position of these sections in the Code. Sections 164 and 364 are as follows :‑ 164. (1) " Any Presidency Magistrate, any Magistrate of the First Class any Magistrate of the Second Class specially empowered in this behalf by the Provincial 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 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 pro vided 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." 364. (1) " Whenever the accused is examined by any Magistrate, or by any Court other than a High Court estab lished by Royal Charter or the Chief Court of Oudh, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English : and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be inter preted to him in a language which he understands, and he shall be at liberty to explain or add to his answers. (2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or judge of such Court, and such Magistrate or judge shall certify under his own hand that the exami nation vas taken in his presence and hearing, and that the record contains‑a full and true account of the statement made by the accused. (3) In cases in which the examination of the accused is not recorded by the Magistrate or judge himself, he shall be bound, as the examination proceeds, to make a memorandum thereof in the language of the Court, or in English, if he is sufficiently acquainted with the latter language ; and such memorandum shall be written and signed by the Magistrate or judge with his own hand, and shall be annexed to the record. If the Magistrate or Judge is unable to make memorandum as above required, he shall record the reason of such inability. (4) Nothing in the section shall be deemed to apply to the examination of an accused person under section 263, or in the course of a trial held by a Presidency Magistrate". Section 164 empowers Magistrates to record confessions of accused persons in the course of police investigation and occurs in Chapter XIV, which is headed" information to the police and their powers to investigate". Section 364, however, does not expressly deal with the confessions of accused persons but with the mode of recording the examination of such persons and occurs in Chapter XXV, which is headed " Of the mode taking and recording evidence in inquiries and trials'. It refers back to the examination of the accused under section 342 which occurs in Chapter XXI V, which is headed " General provisions as to inquiries and trials ". That section reads as follows :‑‑ 342 (1) " For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. (2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them ; but the Court and the jury (if any) may draw such inference from such refusal or answers as it thinks just. (3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for any other offence which such answers may tend to show he has committed. (4) No oath shall be administered to the accused." It seems to me to be clear on reading together sections 364 and 342 that the former only prescribes the mode in which a statement made by an accused person in reply to questions put to him under section 342 has to be recorded. When an accused person is examined under section 342, the object of the examination is to be enable him. to explain any circumstances appearing in the evidence against him, the Magistrate being under a clear obligation to question him generally on the case after the witnesses for the prosecution have been examined anal before he is called on for his defence. When a Magistrate acts under section 342, he knows what the evidence against an accused person is and what its effect would be on his decision if it remained unexplained. From the very nature of the case, therefore, the Magistrate has to draw the pointed attention of the accused to the facts deposed to in the evidence which tend to incriminate him, and this the Magistrate can only, do by asking the accused for an explanation of those facts and the evidence about them. It is in regard to the mode of record ing this examination that section 364 lays down certain rules namely, (1) that every question put to the accused and every answer given by him shall be recorded in full, (2) that the examination shall be recorded in. the language in which the accused is examined and if that is not practicable, the language of the Court, or in English, (3) that the record shall be shown or read to the accused and that if he does not understand the language in which it is written, it shall be interpreted to him in a language which he understands, (4) that the record shall be signed by the accused and the Magistrate who shall also certify in his own hand that the examination was taken in his presence and hearing and that its record contains a full and true account of the statement made by the accused, (5) that if the examination is not recorded by the Magistrate himself, he shall, as the examination proceeds, make a memorandum thereof in the language of the Court or in English, which shall be written and signed by the Magistrate‑ with his own hand and annexed to the record, and (b) that if the Magistrate is unable to make a such a memorandum, be shall record the reason of such inability. When an accused person is produced before a Magistrate to have his confession recorded in the course of police investigation, the Magistrate is required by section 164 to record' and' sign the confession in the manner provided in section 364, but before he proceeds to record any such confession; the section also requires him to explain to the person intending to make a 'confession 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 is entitled to record such confession, unless upon questioning the person making it he has reason to believe that it will be made voluntarily. It follows from the terms of this section that a, confession is inadmissible unless the Magistrate, upon questioning the accused is satisfied that it is voluntary. The Magistrate is first required to given, a warning to the accused that he is not bound to make a confession and that if he makes one, it maybe used as evidence against him. The Magistrate, is then required to put questions to the accused with a view to ascertaining whether the confession will be made voluntarily. Now, if the Magistrate puts any questions, as he must under this section, they must be taken down in the form in which they were put and the replies to them in the terms in which they were made. Qua this part of the section, there fore, section 364, which requires a Magistrate to record the whole of the examination of an accused person, including every question put and every answer made, is clearly applicable, but that section can hardly be applied to the confession which an accused person decides to make after the preliminary questioning under the section

164. The Magistrate proceeding to record a confession under section 164 knows nothing about the facts of the case and is wholly unaware of what the prisoner may have to say. Nor is there shy evidence before him, as there is when he proceeds under section 342, on the basis of which he may question the accused. It is therefore, obviously impossible for him at that stage to put questions to the accused person in regard to the subject matter of the confession. Accordingly I am of the view that that portion of section 364, which requires the examination of an accused person to be taken down in the form of questions and answers, is not applicable to confessions made under section 164, and cannot accept as correct the contention that even where the confession of an accused person is recorded during the course of police investigation, it cannot be taken down in a narrative form and must be recorded in the form of questions and answers. In fact, such questions have generally to be avoided so as not to provide ground for the objection that the confession was the result of cross‑examination by the Magistrate and therefore, involuntary. It may be that while a prisoner is telling a story, an intelligent Magistrate may put him a few questions here and there and if he does that, it would obviously be his duty to indicate the questions that he put and the answers that the accused gave to them. But as a rule the Magistrate will find it impracticable to put questions to a prisoner and he will be acting unfairly and indiscreetly if he put a series of searching questions to him. Indeed, the result of any such action on his part may be to make the resporisive confession wholly irrelevant. When section 164 of the Criminal Procedure Code says that the confession of an accused shall be recorded in the manner in which the examination of an accused has to be recorded under section 364, it means no more than that the confession should be recorded in the language in which the accused is examined and that the record of the statement should be shown or read or interpreted to the accused, signed by the both the accused and the Magistrate, and certified that it is a true record of the examination taken in the presence and hearing of the Magistrate. The Magistrate acting under section 164 has, as required by section 364, also to make a memorandum of the confession in his own hand in the language of the Court and to sign and annex it to the record if he does not record the confession himself. If he is unable to make a memorandum, he must state the reason of such inability. Of course, as already pointed out, all questions put by the Magistrate in order to ascertain whether the confession is voluntary or not, have got to be taken down together with their replies as also any questions that may be put while the prisoner is making the statement and the reply to them. For these reasons, I am unable to accept the argument that if a confession under section 164 is recorded by a Magistrate in a narrative form and not in the form of questions and answers, it becomes inadmissible in evidence. A. H. Appeal dismissed.