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Criminal Appeal No. 30 of 1948, decided on 6th July 1948, from the order, dated 20th November 1947, passed by Session Judge, Jhelum
Ss. 164 and 364-Provisions disregarded in recording confession--High Court, Lahore, Rules and Orders, Chapter XIII, Volume III--Punjab Government circular letter No. 6091-J-36139829 (H. Judicial), dated 19th December 1936--Directions not complied with-Confession, held not duly made and therefore inadmissible.
Confession is inadmissible in evidence unless the Magistrate is found to have made real and- substantial inquiries which he was bound to do as to its voluntary nature before recording it.
S. 533---- Irregularities in recording a confession when can be cured. Irregularities in recording a confession can be cured under section 533 Criminal Procedure Code. But it is only when the Court is satisfied that the confession had been made duly although it was not recorded duly. In other words the matter is one of substance and not merely that of form.
Appellant through Jail.
Muhammad Sharif, Assistant to Advocate-General, for Respondent.
This is a jail appeal by one Mst. Bakhat Bano who Was found guilty of murdering her daughter Shireen Akhtar an infant about one and a half years old, by throwing her into a well called Bhagewala on or about the 5th August 1947 and sentenced to transportation for life. The extreme penalty of law was not imposed as, to use the learned Sessions judge's concluding words, "this unfortunate woman had been leading a very unhappy life due to the immorality of her husband who was carrying on with his ex-wife and had in fact got an illegitimate child from her and whose visits were the cause of occasional fights between Feroze and his wife Bakht Bano accused." The learned Sessions judge proceeded to add "that lust. Bakht Bano was homeless at least for a month before this murder and had been maintaining herself by filling water in the houses of some rich Khojas. The presence of the child was an encum brance and interfered with her attempt to eke out her living. The child was a burden. Her husband was faithless and it appears that she was homeless. Under these circumstances I would consider that it was an act of a disappointed and hard hit woman."
The short question therefore for us to answer is whether the offence has Peen brought home to the accused It may be observed that the present appellant was prosecuted along with three other persons-another woman Musahib Bano and two men, Ghulam Qadir and Mohammad Hayat, for abetting the child's murder but they were acquitted by the trial Judge for want of any evidence. The appellant was, however, convicted mainly on the basis of two confessions made by her one judicial and the other extra -judicial and a statement by Fazal Khan, P. W. 4, that he had met the accused Mst. Bakht Bano going towards the said well on the morning of the 5th August with the child in her lap and heard of the child's murder three or four days later on his return to the village which he had left on that day for another village Fim Kassar.
Fazal Khan's statement is. I may say at once, inconclusive at least, even if it could be accepted, as there is nothing in it which may go to show that he had seen the accused going towards the Bhagewala well in the small hours of the morning of the 5th August when was returning from the pond known as Jaluwali after taking his bath. He was not examined by the police on his own admission, for 16 or 17 days after the alleged occurrence although he lead remained ill the village where the murder is stated to have taken place, for five or seven days after his return from the village Fim Kasser and had passed the Police Post, which was near his Mohalla and had seen the accused sitting at the Police Post without knowing or ascertaining the reason for their presence at that place. There is nothing on the record to show as to how the police came to know of such an important corroborative fact after such a length of time. Moreover, in his statement before the Court he does not mention the date on which he had gone to the village Fim Kassar. There is thus nothing to show whether this witness had seen the appellant, if he had seen her at all, on the date on which the child is stated by the prosecution to be thrown into the well.
As to the statement made by Nur Khan, a Zaildar, which appears to have impressed the Court, my own view is that the statement made by him, does not appear t o be either natural or probable. I shall refer to that statement in a minute. But before doing so it would be well to remember not only that the appellant had already stated to the witness at Chakwal on the 5th or the 6th August that the child had died after an illness of two or three days at Chakwal and had been buried there", but that even shortly before the time when she is alleged to have confessed her guilt to the witness, she had repeated to him in the presence of her husband Feroze, to whom she had apparently been reconciled by then that her "daughter had been buried as she was dead and that an amount of Rs. 200 which she had, had been taken away by the other accused and he (Feroze) asked me (the witness) to use my influence to get the refund of that money". This was according to the deposition of the witness in the presence of the appellant herself. How could she have then changed within a few minutes in her husband's 'presence and made a clean breast as to the perpetration of murder simply because the witness had asked Mst. Bakht Bano to tell him the truth about her daughter as he had come to know of the recovery of a child's body from the well And this when the witness had, as he states, given no inducement except that her husband would not say anything to her. It appears to me to be highly improbable that she would admit at about midnight criminal intimacy with Hayat in her husband's presence with whom she had just been reconciled and admit having killed their child in the manner stated. Nor does it appear to be probable that the witness would have asked the appellant about the child because it was not with her and "also because her breasts was leaking". It seems to be unlikely that a woman who was almost a stranger to the witness would so expose herself in his presence that he might notice the leakage from her breasts. The witness may be a Zaildar but it is a matter of common knowledge that they are not generally speaking such independent persons as they pretend to be and although he denied having any particular influence with the Police' I do not think I could, in view of their position, accept the converse to be true and hold that the police had no particular influence with him as well. If probability is the only test-and I am afraid that is about the only one which is acceptable by me-I could not place implicit reliance on this witness's testimony as the trial judge had done, particularly when it consists of an extra-judicial confession of which, having regard to the usual method of work by the police in this country, I am not at all enamoured and which does not inspire confidence. I am aware of the statement by the appellant's husband Feroze but he is the villain of the piece and in view of his admitted liaison with his divorced wife and of his general behaviour towards the appellant, I am not prepared to accept it. Had their relations been cordial, I could not have expected him, considering the morals of the class to which he belongs, to have made a statement which could have taken his wife to the gallows.
This brings me to the confession (Ex. P. K) stated to have been made by the appellant before a first class magistrate on the 18th August 1947. It appears that an application (Ex. P. L) was made by the Sub-Inspector Chakwal (P. W. 12) to the Magistrate to record lust. Bakht Bano's s statement under section 164 Criminal Procedure Code. The order on that application (Ex. P. L/1) reads as follows:
"The witness is present. Let the statement be recorded."
The use of the word witness' might have by itself not meant very much. But it assumes a special significance when I am called upon to find whether the requirements of sub-clause (3) of Section 164 had been fully complied with by the Magistrate before he had started to record the confession. Section 164 (3) reads 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 o the statement made by him.
(Signed) A. B.
Magistrate'."
How am I to know from the record itself that the Magistrate had before recording the confession explained to Mst. Bakht Bano that she was not bound to make the confession and that if she were to do so, it might be used as evidence against her Nor do I know what questions were put by the Magistrate to the appellant before recording the confession which had led him to believe that it was really voluntarily and truly made and as to why it was made What is there to show on the record that the Magistrate did not start recording it in the ordinary course as he would be writing a large number of statements of witnesses daily And it is in that connection that the use of the word witness' by the Magistrate in Ex. P. L/1 becomes significant. I know the statement made by the Magistrate in Court. With that, however, I shall deal later. But for the present I am trying to find from the record which the Magistrate had prepared as to what had been done by him to satisfy his conscience that the confessor was a free agent, particularly when he was dealing with a woman in such a serious matter and that the confession was not being forced out of her or that she was not being deceived into making it. There is nothing to show on the record that the police was made to leave the room and the appellant did have the time to regain her mental equilibrium before the made the confession Ex. P. K. In my view the confession is in admissible in evidence unless the Magistrate is found to have made real and substantial inquiries which he was bound to do as to its voluntary nature before recording it. And the record is sternly silent on that vital point. I also do not find from the statement made by the appellant (Ex. P. K) that the Magistrate had recorded either any questions put by him to Mst. Bakht Bano or the answers given by her to such questions as required by Section 364 Criminal Procedure Code. It is recorded in a narrative form. It is pertinent in this connec tion to refer to the form prescribed by this Court which has invariably to be used. No reason was given by the Magistrate as to why he could not carry out the clear orders contained in Chapter XIII of Vol. III of the Rules and Orders of this Court. The form reads as follows:-
"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.-Understanding these two facts, are you making a state ment before me voluntarily
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.
Magistrate
Dated--------"
To the same effect is the direction given by the Punjab Government in its circular letter No. 6091-J-36/39829 (H. Judicial) dated the 19th December 1936:-
"In order to ensure that a statement or confession under section 164 of the Code of Criminal Procedure is made voluntarily; the following precautions should be taken. Before the Magistrate proceeds to record the confession, he should arrange so far as is compatible with his safety and that of his staff and with the safe custody of the prisoner-that the latter is left for some time (say, for half an hour) out of the hearing of police officers or other persons likely to influence trim."
I am fully aware that the irregularities in recording a con fession can be cured under section 533 Criminal Procedure Code. But it is only when the Court is satisfied that the confession had been made duly although it was not recorded duly. In other words the matter is one of substance and not merely that of form.
I must therefore now proceed to examine the material on the record on which reliance was placed on behalf of the prosecution to show that the confession had been duly made by Mst. Bakhat Bano appellant. The only statement is that of the Magistrate: 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 twofold. 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 any thing 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. Moreover, he gives no reasons whatsoever in his cross-examination as to why I did not record in writing the preliminary questions about my telling her that I was a Magistrate and not a Police Officer and that she understood it or that she was not bound to make a statement although an opportunity was provided to him to furnish an explanation during his cross-examination It must be admitted that he had stated in his examination-in-chief most if not all of what he was required by law to do before recording a confession to satisfy himself as to its voluntary nature after realizing its consequences fully. But having regard to the facts that his own reputation as a Magistrate anal to a large extent his future prospects depended upon his giving these answers in the manner in which he had given them and to show that .he had taken good care to comply with the requirements or that he could not have committed such a grave omission, I am not prepared to accept them at their face value-in any case it would not be safe to do so. It is not possible for me otherwise to understand why he had failed to make a note of the preliminary questions which he was both under .law and in accordance with the orders of this Court bound to record. Even the ten minutes time which he states as having been given to the appellant to think over her desire to make the confession" was neither sufficient nor in accordance with the-circular of the Punjab Government which has already been quoted. There was no reason for arty hurry and the statement seems to have been, to say the least, recorded in haste-more as a matter of routine than after bestowing considerable thought by the Magistrate and after taking all the precautions which he was by law required to take: It may be that he thought when he started that he was recording the statement of a witness and realized while doing so that he was recording a confession. If this were so and the possibility of such a contingency cannot be ruled out of consideration, the accused may not have been warned of the risk she was running by making the confession before recording it. And if he had come to realize this while recording the confession, the Police might not have been excluded from his room in the beginning and either not at all or at least not for some time after he had started recording the statement.
These and the absence of any direct testimony connecting the appellant with her guilt. which the police and everybody else might have honestly believed to have been committed: by her, raise a reasonable doubt in my mind and I consider it to be unsafe to act upon the Magistrate's statement given in Court. I must for the above reasons hold the confession to be inadmissible in evidence. And once it is discarded, there is nothing left on the record on which the appellant's conviction can be sustain ed.
I would accordingly allow the appeal and acquit the appellant. She would be released from custody forthwith.
------I agree.
K. M. A. Appeal accepted.
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