MUHAMMAD FAIZAN SALEH Versus State

TARIQ SALEEM SHEIKH, J .---On 9.5.2020 Sub-Inspector Muhammad Afzal (Respondent No.3) arrested the Petitioner and nine others allegedly for gaming at a public place near Chungi No.11, Multan, and lodged FIR No.210/2020 dated 9.5.2020 against them at Police Station Shah Rukn-e-Alam, Multan, for offences under sections 5 and 7 of the Punjab Prevention of Gambling Ordinance, 1978 (the Ordinance ). On 10.5.2020 he produced the Petitioner and his co-accused before the Special Judicial Magistrate (City) Multan, and requested that they might be remanded to judicial custody. During the proceedings, it is stated, they pleaded guilty whereupon the Special Magistrate taking a lenient view convicted them under section 5 of the Ordinance and imposed fine in the sum of Rs.5000/- each through a common order. The Petitioner and his co-accused immediately deposited the fine and were released. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner has assailed his conviction and sentence before this Court.

2. At the very outset, the learned counsel for the Petitioner prays that this petition may be converted into a revision under sections 435/439, Cr.P.C. The request is allowed. Order accordingly.

3. The learned counsel for the Petitioner contends that the impugned order dated 10.5.2020 is without jurisdiction and thus liable to be set aside. He argues that when Respondent No.3 produced the Petitioner before the Special Magistrate for remand he could, at the most, record his confessional statement under section 164, Cr.P.C. if he desired to make one. He had no jurisdiction to convict him at that stage even if he had confessed his guilt. The learned counsel further contends that since the Special Magistrate did not follow the procedure stipulated in section 164, Cr.P.C., the so-called confession has no legal value and cannot be used against the Petitioner for any purpose whatsoever.

4. The learned Deputy Prosecutor General contends that the Petitioner duly confessed his guilt before the Special Magistrate on which he convicted and sentenced him. Any irregularity in the proceedings is curable under section 537, Cr.P.C.

Opinion

5. Sections 164, 340(2), 342 and 364, Cr.P.C. contain provisions for recording confessions and statements of accused persons. Section 164 may be invoked any time before the commencement of the inquiry or trial. On the other hand, sections 340(2) and 342 deal with the examination of the accused during the inquiry or trial. Section 364 prescribes the manner in which the examination is to be recorded.

6. Sections 164, 340(2) and 342, Cr.P.C. all have distinct objects. Section 164 seeks to provide a method of securing a reliable record of statements of confessions made during police investigation which could be used during the inquiry or trial, if necessary. 1 Article 38 of the Qanun-e-Shahadat, 1984, makes confession to a police officer inadmissible in evidence so when an accused confesses during investigation the police make use of section 164, Cr.P.C. They produce him before a magistrate and get his statement recorded. 2 The object of section 342 is to afford an opportunity to the accused to explain his position in respect of the evidence brought against him during the inquiry or trial while section 340(2) enjoins that an accused, if he does not plead guilty, may give evidence on oath in disproof of the charges or allegations levelled against him or his co-accused.

7. Section 164 is central to the discussion so let us focus on it first. Rule 4 of Chapter 13, Volume III of the Lahore High Court Rules and Orders explains the salient features of section 164, Cr.P.C. as follows:

(a) Statements or confessions made in the course of an investigation can be recorded only by a Magistrate of the first class or of the second class who has been specially empowered by the Provincial Government.

(b) Confessions must be recorded and signed in the manner provided in section 364.

(c) Before recording any such confession the Magistrate shall 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 in evidence against him.

(d) No Magistrate shall record any such confession unless upon questioning the person making it he has reason to believe that it was made voluntarily. Failure to question has been held to vitiate the confession.

(e) The memorandum set forth in section 164(3) must be appended at the foot of the record of the confession.

(f) It is not necessary that the Magistrate receiving or recording a confession or statement should be Magistrate having jurisdiction in the case.

(g) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross-examining the witness making the statement. [See sub-section (1-A) of section 164, Cr.P.C.]

8. Rule 5 prescribes the form for recording confessions under section 164, Cr.P.C. while Rule 6 mandates that confessions should be recorded in open court and during court hours unless there are exceptional reasons. Further, the police officer investigating the case should not be present at that time. Rule 7 mandates that an accused should be sent to the judicial lock-up and not made over to the police after his confession has been recorded and even there he should be kept separate from other prisoners. Article 10A of the Constitution of Pakistan recognizes right to fair trial as a fundamental right. Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles. 3 One of the rights associated with the right to fair trial is the right to a legal counsel. This right is statutorily recognized in section 340(1). Therefore, before recording confession under section 164 it is incumbent on the magistrate to inform the accused about the said right and afford him a reasonable opportunity to engage a counsel. 4

9. In his commentary on section 164 of the Indian Code of Criminal Procedure, 1973, which is similar to our Code of 1898, Sarkar writes: 5 Section 164 applies to all sorts of confessions whether made by a person accused of an offence or not. Though ordinarily section 164 is made use of when an accused desirous of making a confession is brought to a magistrate for its record, it is not restricted only to confessions. The section says any confession or statement . It does not specifically mention any person whose confession or statement is to be recorded; it may be an accused or one who may ultimately be an accused, or a witness capable of giving useful information relating to the offence. Again, the statement may be a confession or it may not amount to a confession, or it may be partly confessional and partly exculpatory Although it may be retracted afterwards, as is often done in the case of confessions, what is stated before the magistrate is evidence in law and it will be for the Judge to determine whether the earlier or the later version is true Section 164 should be read together with sections 24, 25, 26 and 29 [of the Indian] Evidence Act 6 and when so read the following result follows: (1) Confession shall not be made to a police officer. (2) It must be made in the presence of magistrate. (3) The magistrate shall not record it unless he is, upon inquiry, satisfied that it is voluntary. (4) He shall record it in the manner laid down in section 164 [read with section 364].

10. Generally speaking, a confession under section 164 is recorded on the initiative of the Investigating Officer. Nevertheless, law does not prohibit the magistrate from taking it down if the offender himself makes a request provided that he has the authority and follows the prescribed procedure. In Nazir Ahmad v. King-Emperor (AIR 1936 PC 253) the Privy Council held that a confession purporting to be recorded under section 164 but in gross violation of the procedure set out therein is inadmissible and cannot be proved by the oral evidence of the magistrate. In his speech Lord Roche said it was well-settled that where a power is given to do a thing in a certain way it must be done in that particular way or not at all and, he added, Taylor v. Taylor, (1876) 1 Ch D 426 , applied that principle to courts. Although the magistrate acting under section 164 is not a court, yet he is a judicial officer and both as a matter of construction and good sense there are strong reasons for applying the rule in question to him. He further said that sections 164 and 364 must be read in tandem otherwise all the precautions and safeguards laid down therein would be of such trifling value as to be almost idle. In Ghulam Hussain v. The King, [1949] UKPC 69 , the Privy Council held that a statement under section 164 not amounting to confession can be issued against the maker as an admission under sections 18 to 21 of the Indian Evidence Act. 7

11. In State of Uttar Pradesh v. Singhara Singh and others (AIR 1964 SC 358) it was urged that Nazir Ahmad was not rightly decided as it did not take section 533 into consideration which indicates that sections 164 and 364 are not mandatory. The Supreme Court of India nixed the contention holding as under:

Section 533 says that if the court before which a statement or confession of an accused person purporting to be recorded under section 164 or section 364 is tendered in evidence finds that any of the provisions of either of such sections have not been complied with by the magistrate recording the statement, it shall take evidence that such person duly made the statement recorded. Now a statement would not have been duly made unless the procedure for making it laid down in section 164 had been followed. What section 533, therefore, does is to permit oral evidence to be given to prove that the procedure laid down in section 164 had in fact been followed when the court finds that the record produced before it does not show that that was so. If the oral evidence establishes that the procedure had been followed, then only can the record be admitted. Therefore, far from showing that the procedure laid down in section 164 is not intended to be obligatory, section 533 really emphasizes that that procedure has to be followed. The section only permits oral evidence to prove that the procedure had actually been followed in certain cases where the record which ought to show that does not in the face of it do so.

12. In the instant case, the Special Magistrate convicted and sentenced the Petitioner on his confession when the police produced him for judicial remand. Perusal of the record reveals that he did not take down his confessional statement in the prescribed manner and straightaway passed the following two-line order:

10.5.2020

Sd/-

13. The learned Deputy Prosecutor General contends that an obligation is cast on the magistrate to record a confession in writing under section 164 when an accused is brought to him in the course of an investigation. However, no such duty arise if he makes a confession when produced for some other purpose (e.g. for remand or during an inquiry under section 159 or inquest under section 176) and it can be proved by the magistrate s oral testimony. The learned Law Officer relies on Ramaswami Reddiar and another (AIR 1953 Madras 138) in support of his contention and has read out the following excerpt from that judgment before me:

Admission of guilt or of an incriminating fact may be made by an accused to a Magistrate in the course of a statement to him on occasions other than when he is so brought for recording his confession and such statements appear to stand at least on the same footing as an extra-judicial confession to a third person or an admission under section 21 [of the Indian Evidence Act 8 ].

14. Sarkar supports the view expressed by the Madras High Court in the above-mentioned case and while referring to some other decisions of the other High Courts opines that they do not go against Nazir Ahmad (supra). He argues that section 164 does not limit the generality of section 21 of the Evidence Act 9 as to relevancy of admissions or exclude confessions otherwise admissible. 1 0 The Supreme Court of India, however, seems to have taken a different view in State of Uttar Pradesh v. Singhara Singh and others (AIR 1964 SC 358). In the said case the magistrate who recorded the confession was not competent. The trial court held that its record could not be put in evidence under sections 74 and 80 of the Evidence Act. 1 1 Thereupon the prosecution called the magistrate to prove the confession who used the record only to refresh his memory. The Supreme Court applied the principles laid down in Nazir Ahmad and ruled that oral evidence was inadmissible. It held:

The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on magistrate the power to record statements or confessions, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confessions made to him. It is true that the Judicial Committee did not have to deal with a case like the present one where a magistrate of the second class not specially empowered had purported to record a confession under Section 164. The principle applied in that decision would however equally prevent such a magistrate from giving oral evidence of the confession.

15. In my opinion, the Madras High Court s holding in Ramaswami Reddiar is in conflict not only with the dictum of the Privy Council in Nazir Ahmad but also the Indian Supreme Court in Singhara Singh. It is not a good law and cannot be followed. Even otherwise, in the instant case, the police had not only begun the investigation but completed it when they produced the Petitioner before the Special Magistrate though the trial had not yet commenced. The remand papers available on the file establish this fact.

16. The confessional statement of an accused duly recorded under section 164 is admissible in evidence though it may be retracted as it happens in a vast majority of cases. The probative value of a retracted confession is determined by the court in accordance with the Law of Evidence. As adumbrated, the confession of an accused under section 164 is distinct from the one which he may make during his trial.

17. Section 243 stipulates that a magistrate may convict an accused if he admits that he has committed the offence with which he is charged provided the confession is recorded, as nearly as possible, in his words and he fails to show sufficient cause against his conviction. There is, however, divergence of opinion regarding the true import of section 243. Some authorities hold that section 243 does not impose any condition and an accused may confess his guilt at any stage of the trial. 1 2 The second view is that when the charge is framed and the accused denies it the magistrate has to proceed with the trial. If he subsequently makes a voluntary confession, it shall be recorded in accordance with section 364 and put to him for his explanation under section 342, Cr.P.C. Such a confession does not amount to a plea of guilt within the meaning of sections 243 and the court cannot convict him on its basis alone. 1 3 The third opinion is that if the accused denies the charge when he is indicted but pleads guilty when the trial progresses, the magistrate should require independent evidence to convict him. 1 4 The last view is more widely accepted and even the Division Benches of this Court have approved it.

Conclusion

18. Recording of confession is a very solemn act and the magistrate must see that the requirements of section 164 are fully satisfied. 1 5 In the instant case, the Special Magistrate did not record the Petitioner s statement at all what to talk of following the prescribed procedure and proceeded to convict him which was out-and-out unlawful. According to the principle laid down by the Privy Council in Nazir Ahmad v. King-Emperor (AIR 1936 PC 253), oral evidence to prove the said confession is inadmissible.

19. The police had produced the Petitioner before the Special Magistrate for judicial remand when he made the so-called confession. The Special Magistrate had no jurisdiction to convict him at that stage.

20. In view of the foregoing, this petition is accepted and the impugned order dated 10.5.2020 is set aside.

21. As stated above, 10 persons were booked in FIR No.210/2020, including the Petitioner, and the Special Magistrate convicted and sentenced all of them through common order dated 10.5.2020. The other accused have not questioned that order but the fact is that it cannot stand qua them also. This Court is competent to quash their conviction and sentence in exercise of its revisional powers under sections 435 and 439, Cr.P.C. In Dr. Waqar Hussain v. The State (2000 SCMR 735) the Hon ble Supreme Court of Pakistan ruled that these provisions confer corrective jurisdiction on the High Court to prevent miscarriage of justice. It held:

So far as the power of the High Court under section 439, Cr.P.C. is concerned, it may be stated that it is not a power only but a duty [and this power may be exercised whenever relevant facts] are brought to the notice of the Court or otherwise come to its knowledge the revisional jurisdiction is in the nature of corrective jurisdiction.

22. Similarly, in Husnain Haider Shah and others v. The State (2013 YLR 1932) a Division Bench of this Court held:

Use of expression or which otherwise comes to its knowledge, the High Court may, in its discretion in section 439(1) of the Code of Criminal Procedure, 1898, casts duty upon this Court to exercise corrective jurisdiction as jurisdiction under this section is not a power only but requires the High Court while exercising revisional jurisdiction to correct miscarriage of justice arising from misconception of law and facts, irregularity of procedure casting undesired hardship to individuals.

23. There is a cornucopia of cases in which the courts exercised suo motu revisional jurisdiction and extended the benefit of its findings recorded in an appeal preferred by a convict to those co-accused who had not approached it. In this regard it would be useful to refer to Bashir Ahmad v. The State (1975 PCr.LJ 203); Nazra alias Nazira v. The State (1980 PCr.LJ 264); Inayatullah Khan v. The State (1994 PCr.LJ 858); Husnain Haider Shah and others v. The State (2013 YLR 1932) and Rizwan Ahmed Qureshi and others v. The State and others (PLD 2017 Sindh 653).

24. Accordingly, the conviction and sentence of the Petitioner s co-accused is also set aside.

25. Case FIR No.210/2020, supra, would be deemed to be pending and proceeded in accordance with law.

KMZ/M-199/L Order accordingly.

1 Rule 2 of Chapter 13 Volume III of the Lahore High Court Rules and Orders.

2 ibid.

3 Shabbir Ahmed v. Kiran Khursheed and 8 others (2012 CLC 1236)

4 In Ahmad v. The State (1989 PCr.LJ 861) one of the grounds that prevailed with the High Court for setting aside the accused s conviction was that his counsel was not present when he made the confession and was not afforded an opportunity to consult him.

5 S.C. Sarkar, The Code of Criminal Procedure, Tenth Edition (LexisNexis), p.762-763.

6 Articles 37, 38, 39 and 42 of Qanun-e-Shahadat, 1984, are pari materia with these sections.

7 See: Articles 31 to 34 of Qanun-e-Shahadat, 1984.

8 See: Article 34 of Qanun-e-Shahadat, 1984.

9 Article 34 of Qanun-e-Shahadat, 1984.

10 S.C. Sarkar, The Code of Criminal Procedure, Tenth Edition (LexisNexis), p 769.

11 See: Articles 85 and 91 of Qanun-e-Shahadat, 1984.

12 Nazir Ahmad v. The State (PLD 1975 Lahore 304); and Muhammad Jehangir v. The State and another (1999 MLD 2450)

13 Sarfaraz Khan v. The State (1985 PCr.LJ 167).

14 King Emperor v. Kasim Walad Mohammed Saffer (AIR 1925 Sind 188); Farrukh Shehzad v. The State (2012 PCr.LJ 352); and Muhammad Amin v. The State (2014 YLR 2207).

15 Sarwan Singh Rattan Singh v. State of Punjab (AIR 1957 SC 637).