' Gangoo Ram son of Dharia Ram appellant, through this appeal has challenged his conviction and sentence imposed upon him by the learned Additional Sessions Judge, Rahimyar Khan vide judgment, dated 23-6-1992. The appellant was sent up to face trial in case F.I.R. No,46 of 1986 registered at Police Station Liaquatpur for an offence under section 302, P.P.C. Read with section 201, P.P.C. For causing murder of Mst. Porbi. The trial Court convicted the appellant under section 302, P.P.C. And sentenced him to life imprisonment. A fine of Rs,10,000 was also imposed upon the appellant which if realized was to be paid to the legal heirs of the deceased while in default thereof the appellant was to suffer further R.I. For three years. The appellant was also convicted under section 201, P.P.C. And sentenced him to undergo R.I. For seven years. He was also directed to pay fine of Rs,1,000, in default thereof the appellant was to undergo further R.I. For three months. Both the sentences were to run concurrently and the benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. Case F.I.R. No,46 Exh.P.A./3 was registered by Jamshaid Ali, A.S.-I. P.W.11 for an offence under section 302, P.P.C. At Police Station Liaquatpur, District Rahimyar Khan on 15-4-1986 on the basis of written application Exh.P.A. Drafted by Mushtaq Ahmad, P.W.B. According to the F.1.R. On 13-4-1986, in the evening time the complainant who is a Forest Guard was returning from the forest and was present in field No,14 of Burji No,111 of Abbasia Canal when he sensed very strong odour. The complainant discovered an unidentified dead body was lying there. He drafted application Exh.P.A.
And submitted it to Abid Hussain, Block Officer, who advised him to report the matter to the police.
Consequently, Reputt No,12 Exh.P.A./2 was entered by Jamshed Ali, A.S.-I. In the daily diary on 14-4- 1986. Jamshed Ali, A.S.-I. After entering report, sent the dead body for post-mortem examination on 14-4-1986 and after the receipt of the report of post-mortem registered F.I.R.
3. On 14-4-1986, Jamshed Ali, A.S.-I. Took into possession pair of shoes, P.1-2, twelve bangles which are normally worn by non-Muslim women, P.3-14 vide memo. Exh.P.C. Which was attested by Muhammad Nawaz P.W.3 and Abid Hussain, Block Officer, P.W.2. The aforementioned articles were collected from the place where the dead body was lying. On 15-4-1986, Muhammad Ashraf, Constable, P.W.12 gave a necklace which was, allegedly, worn by the deceased to Jamshed Ali, A.S.- I. Who took into possession vide memo. Exh.P.D.
4. The appellant was arrested by Nasir Khan Yousaf, D.S.P., Saddar, Bahawalpur on 22-9-1987. On 23-9-1987 while in custody the appellant led Abdul Latif, S.-I./S.H.O. And P.Ws.4 and 5, brother and son of the deceased to the place of occurrence and showed them the place where he had hidden the bangles and shoes of the deceased. A memo. Exh.P.H. Was prepared to that effect by P.W.15 which was attested by P.Ws.4 and 5.
5. On 24-9-1987, the appellant was produced before Ch. Riasat Ali, Magistrate 1st Class, Bahawalpur, P.W.13 who recorded the confession of accused which was placed on record as Exh.P.F.
6. During the trial, the prosecution produced 15 witnesses to support its case. Dr. Gulzar Ahmad Khan who had conducted the postmortem appeared as P.W.1 and stated that it was dead body of an unidentified female. The dead body had lost its face and head. The neck had been cut, most of the bones had been lost and the dead body was in advanced position of decomposition. No muscles on the face had been left and maggots were crawling all over the dead body including the chest cavity. The vagina had been eaten up by the maggots. According to the doctor he could observe two incised wounds caused on the neck and right thigh of the deceased. He further opined that no time elapsed between the injury and the death, however, the time elapsed between the death and the post-mortem was about a month. Dharam Chand, brother of the deceased and Ramoo Ram son of the deceased appeared as P.Ws. 4 and 5. They stated that they identified the dead body as that of Ms.. Porbi as the shoes, bangles and necklace belonged to her. They also stated about the place of occurrence, allegedly shown to them by the appellant and the preparation of memo. Exh.P.H. These witnesses also testified that the appellant had confessed his guilt before them. However, P.Ws.3 and 4 were not believed qua their evidence relating to Exh.P.H.
Andconfession made by the appellant before them by the trial Court. P.W.8 stated about the drafting of complaint and the registration of case. P.W.13 Ch. Riasat Ali, Magistrate stated about recording of confession made by the appellant before him. P.W.3 Muhammad Nawaz stated about the spot recoveries. P.W.11 Jamshed Ali, A.S.-I. Stated about the registration of the case and investigation. P.W.14 Nasir Khan and P.W.15 Abdul Latif stated about the arrest of the accused and investigation of the case. The rest of the witness are formal in nature.
7. After the conclusion of trial the statement of the appellant was recorded under section 342, Cr.P.C. Who denied the charges and stated that he had been involved in a false case due to mere suspicion and enmity with the P.Ws. Who were brother and son of the deceased. He further stated that he did not make any voluntary confession before the Magistrate and that he was tortured by the police and was threatened that if he did not make confession he would again be taken to police station and would be tortured there and it was due to the fear of police torture that he made a confessional statement before the Magistrate although he was innocent and had not committed the murder.
8. Neither the appellant appeared as a witness in his own defence as envisaged under section 340(2), Cr.P.C. Nor he led any defence.
9. The learned counsel for the appellant has argued that it was an unwitnessed occurrence and that the learned trial Court has wrongly relied upon the evidence of judicial confession. He further argued that it is evident from the record that the alleged confession made by the appellant was not voluntary and, therefore, could not be used against the appellant. Conversely, the learned counsel appearing on behalf of the State has argued that the learned trial Court has rightly convicted the appellant on the basis of judicial confession and if there were any lacunas in recording the statement of the appellant the same could be remanded by application of provision of section 537, Cr.P.C.
10. I have heard the learned counsel for the parties and have also gone through the whole record of the case. It has been noticed that the trial Court has convicted the appellant on the basis of the confessional statement made by the appellant before P.W.13 Riasat Ali, Magistrate. Before commenting upon the quality of the evidence it would be advantageous to reproduce the relevant provisions of law which provide guidelines to the Magistrate to ensure that the confession being made by an accused was voluntary. Subsection (3) of section 164, Cr.P.C. States as follows:--- "(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.
' Explanation. It is not necessary that the Magistrate receiving and recording a "confession or statement should be a Magistrate having jurisdiction in the case."
' The instructions relating to recording of confession of a person issued by this Court and contained in Chapter 13 of Volume III of the Rules and Orders of this Court are also being reproduced as under:-- "Record of a confession 'made by an accused person (Section 164 of the Code of Criminal Procedure)
Division In the Court of The Crown versus_______________________________ The confession of _____________________________________ taken by me_____________ , a Magistrate of the_____________ District, this day of 19 Memorandum of Enquiry (The Magistrate shall first, as required by section 164(3), Code of Criminal Procedure, explain to the accused person that he is not bound to make a confession, and that if he does so, it may be used as evidence against him, and shall then put and record answers to the following questions. If the answers are of such a character as to require him to do so, he should put such further questions as may be necessary to enable him to Judge whether the accused person is acting voluntarily. In arriving at his conclusion on this point the Magistrate should consider inter alia the period during which the accused person has been in police custody and make sure that the confession is not the result of any undue influence or ill-treatment. Special care should be taken when women or children are produced by the police for their confessions being recorded).
Q. Do you understand that you are not bound to make a confession? A.
Q. Do you understand that your statement is being recorded by a Magistrate, and that if you make a confession, it may be used as evidence against you?
A.
Q. Undertaking these two facts, are you making a statement before me voluntarily?
A..
' Statement of accused (Mark or signature of accused)
Magistrate ' I have explained to 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.
Dated Magistrate . "
' According to evidence the appellant was arrested by P.W.14 on 22-9-1987. He remained in police custody till 24-9-1987. On 24-9-1987 an application Exh.P.E. Which was signed by A.S.P./S.D.P.O. Nasir Khan P.W.14, seeking recording the statement of the appellant under section 164, Cr.P.C. Was submitted to the Magistrate who recorded his order Exh.P.E./1 and Exh.P.E./2 on the application.
According to this recorded order the appellant was asked twice by the Magistrate as to whether he intended to make any confession who stated in the affirmative and, thereafter, according to this order, the police was asked to leave the Court-room, so that the statement of the appellant could be recorded. A bare perusal of the order reveals that the provisions of subsection (3) of section 164, Cr.P.C. Were not adhered to. It was never explained to .The appellant that he was not bound to make any statement. According to the recorded order the appellant was asked twice as to whether he wanted to make a confession or not. The police remained -present during that time. In such a situation the appellant was hardly in a position to say no, specifically, when the appellant was never assured that after recording of his statement he was not to be handed over to the police.
11. In the case of Ghulam Muhammad v. The State PLD 1971 Lah. 850 while commenting upon the confession recorded under section 164, Cr.P.C. Read with section 364, Cr.P.C. The learned Division Bench of this Court held as follows:-- "All that the Magistrate told the accused was that he should sit down and think over the matter and then make a statement according to his own free will. This warning was not sufficient to bring to the mind of the confessor the serious results that had to follow the confession. The warning is to be administered in the language used in subsection (3) of section 164, Cr.P.C. And where it is administered in a casual way the Courts have refused to rely on such a confession. The Magistrate even did not explain to the accused before time was allowed for consideration that he was not bound to make a confession and if he made one, it will be used against him. The warning administered by the Magistrate in this case does not conform to the one prescribed by the Statute and this failure is enough to vitiate the confession apart from other circumstances which make it unacceptable."
12. In the case of Syed Azeem Shah v. The State PLD 1987 Quetta 96 the learned Division Bench of Quetta High Court did not rely upon the confession when before recording the confessional statement the accused was not explained that he would not be handed back to police.
13. P.W.13, Ch. Riasat Ali, Magistrate admitted during his cross-examination that the handcuffs of the appellant were not removed nor he D had recorded any certificate at the foot of the confession as envisaged by section 364, Cr.P.C. According to this P.W., he had given time to the appellant to think over whether he intended to make a confession or not. This time comes up to 45 minutes as according to the order Exh.P.E./1 recorded by this P.W. The accused-appellant was produced before him at 11-15 a.m. And he recorded his statement at 12-00 noon. It is indeed unfortunate that the Magistrate never realized that it was very serious matter which could result in the life and death of the appellant. Instead of making the appellant aware of the fact in clear terms that he was not bound to make any confession and what would be the consequence of making the confession this Magistrate thought it proper that 45 minutes time was enough to ensure the voluntariness of the confession. The trial Court has completely lost sight of the fact that during the time which was allotted to the appellant for reflecting over the matter the police remained present in the Court- room and the handcuffs were never removed. As already stated above, the Magistrate never assured the appellant that he would not be handed back to the police.
14. In the case of Wazir and others v. The State PLD 1960 (W.P.) Kar. 674 the learned Division Bench held that after the recording of confession the accused person should be sent to judicial custody, and they should in fact be informed before hand that whether they make a confession or not, they shall not be delivered back to police custody. If the confessing accused is sent back to police custody after he has made a confession, such a course seriously vitiates the voluntary nature of the confession. Where the voluntary nature of confession is doubtful, it can hardly be credited with any evidentiary value at all.
15. The confession was not considered to be voluntary in the case of Hakeem Gui v. The State PLD 1964 (W.P.) Pesh. 1 when the accused was not informed that he would not be sent back to police custody.
16. As far as the question that how much time should be given to accused to reflect and think over before his confession is recorded is concerned, the superior Courts had consistently held that it should be sufficient, however, there had been a differences of opinion as to how much time would be sufficient.
17. In the case of Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 it was observed by the Supreme Court of India that the effective way of freeing the mind of the accused person from the fear of the police was to send him to jail custody and give him adequate time to consider whether he should make a confession at all. Their Lordships further observed that it was difficult to lay down any hard and fast rule but it was reasonable to insist upon giving an accused person at least twenty-four hours to decide whether or not he should make a confession.
18. In the case of Ghulam Muhammad (supra) the learned Judges of the Division Bench agreed with the observations made in the above-mentioned case and were of the opinion that if this salutary practice is followed, the voluntariness of confession would be more assured.
19. It has also been noticed that application Exh.P.E. Whereby a request was made to the Magistrate to record the statement of the 'accused bore the signatures of Nasir Khan Yousaf who was posted as D.S.P., Saddar, Bahawalpur but he never appeared before the Magistrate and the application was presented to the Magistrate by P.W.15. The Magistrate never recorded this fact. The Magistrate, on the contrary stated before the trial Court that A.S.P. Himself submitted the application Exh.P.E.
And he produced the accused before him. The statement of the Magistrate is belied by the statement of P.W.14 but also by the statement of P.W.15 who stated that he had drafted Exh.P.E. On the direction of A.S.P., Nasir Khan and then he got the confessional statement of the appellant recorded by the Magistrate. The appellant was handed back to the police after recording of confession.
20. In view of the above-noted circumstances, in my view the confession is inadmissible in evidence as the same cannot be termed as voluntary. As a sequel to this ending I allow this appeal, set aside the judgment dated 3-6-1992 passed by the trial Court. The appellant, who is on bail, is acquitted. His bail Bonds are cancelled and the sureties are discharged. .