SHAU KAT SAEED vs THE STATE

ABDUL HAYEE KURESHI, ACTG. C. J.-The question framed by the Full Bench of this High Court was as follows ; "Whether a delay of 24 hours in recording of a confession is fatal, so as to make the confession inadmissible."

2. While hearing the bail application of accused Shaukat Saeed on 26th July 1977 it was brought to my notice that his judicial confession had been recorded after five days of his arrest. Mr. Mohammad Iftikhar who appeared for Shaukat Saeed relied on a Division Bench judgment of the High Court of Sind dl; Baluchistan in the case of Tooh v. The State (1975 P Cr. L J 440) in para. 9 of which judgment their Lordships of the Division Bench had stated as follows :--- "The confession was recorded by Mr. A. D. Ansad, the S. D. M., Dadu. He has stated that be had told to appellant that he would not be remanded to police custody even if he did not choose to make the confession. The question is not to be found in the memorandum of confession. Mr. Ansari, however, had conceded in the cross-examination that the confession form showed that the appellant was remanded to police custody but that was duo to inadvertence. Be that as it may, the confession was recorded on the 3rd day of the arrest of the appellant. There are a number of authorities to the effect that the delay of over 24 hours would normally be fatal to the acceptance of a judicial confession. In the circumstances, it must be ruled out of consideration."

3. While the facts stated in the earlier portion of the above-quoted passage from the judgment of the Division Bench, might Lave been sufficient to rule out the confession, but from the later portion of the above-quoted passage it appeared as if their Lordships intended to lay down a rule that a delay of over 24 hours in the recording of a confession would be fatal and such confession must be ruled out of the consideration. The observations gave me a cause of anxiety as those were of a predecessor High Court, so that I constituted a Full Bench to consider the question which has been reproduced, above.

4. Mr. M. Iftikhar was unable to point out any other case in which it may have been laid down that a confession recorded after 24 hours of arrest of accused is inadmissible and therefore must be ruled out of considera--petition. We have also made efforts to find out if there was a dictum of such nature in any reported case, but we were unable to find any. Mr. Aslam Chishti, has however, pointed out some cases in which a confession recorded later than 24 hours of arrest had been held Inadmissible. I proceed to examine these cases first. The first case is a Division Bench Judgment In the case of Hashim v. The State (PLD 1960 Kar.160). In this case the confession though recorded within 24 hours, was held to be inadmissible because before and after the recording of confession the accused had been kept in police custody and secondly for the reasons that the text of confession disclosed that the accused had made a request to "show him kindness". The next case is that of Hamzo v. The State (PLD 1960 Kar. 817). In this case again the confession was recorded after 2 days of arrest without the accused having been produced before a Court or any attempt being made to explain the otherwise Illegal detention. There are some other cases also in which delayed confessions may have been rejected on the ground of delay coupled with the circumstances showing the tainted nature of the confession but in none of those cases has inflexible rule been laid down that a confession recorded after 24 hours of arrest must be rejected on that ground alone.

5. On the other hand the Supreme Court in the case of Syed Sharifuddin Ailrada v. Sohbat Khan and 3 other9 (PLD 1972 SC 363) has considered the question of delay in recording of the confession. In that case confession of the accused was recorded after substantial delay. Their Lordships of the Supreme Court in such context observed as follows;---- "The fact that Sohbat Khan was for some time in the police custody does not lead to the conclusion that he was tutored. Remaining of accused persons for some time in police custody does not affect their judicial confession. Mr. Azizuddin, A. C. M., who recorded the statements has clearly stated in his statement that full opportunity was given to the accused persons to explain the circumstances in which they were giving their statements and complied with the pro forma which was available for recording the judicial confession. This shows that the confessions were made voluntarily."

6. As far as I understand the law relating to delay in recording of a confession, I must state that the rules of admissibility prescribe no limit in --regard to the time of detention preceding the recording of the confession.I may also state that getting a confession recorded is an intimate function of the police during the investigation of a case, and if section 167 of the Coda of Criminal Procedure allows a maximum period of days for completion, of investigation, an inference may be drawn that for the mere fact of the confession having been recorded after 24 hours of detention would not make the confession inadmissible. However, a wealth of case-law hash grown over the years which cast a duty on the Courts to consider factual aspects and circumstances attending the recording of confessions often such circumstance may appear to render even confession recorded within less than 24 hours of the arrest of the accused inadmissible, and conversely confessions recorded after substantial time may still be relied upon. No confession can be ruled out solely on the ground of delay except by reference to the other evidence attending the confession. No doubt confessions obtained after a long period of detention in police custody have rightly been looked upon with suspicion and that casts a duty on the Court to scan the confession and other evidence deeper and to look for any other evidence which may taint the confession itself, but surely a short period of detention in police custody for 24 hours preceding the recording of confession would not make it inadmissible.

7. In this context I may also refer a Division Bench Judgment in the case of Mohammed Karim v. The State (PLD 1976 Posh. 13 5). In that case the confessional statement was recorded after 5 days of the accused in police custody and their Lordships of the Peshawar High Court relying on the Supreme Court case of Sohbat Khan concluded that the mere fact of the accused being in police custody for 5 days before the confession would not raise a presumption that the confession was a product of inducement, threat or promise.

8. On a careful consideration of all the aspects of the proposition I am of the view that the question referred to the Full Bench must be answered in the negative. I would however enter a caution that every confession is to be considered on its merits in the light of surrounding facts and circumstances and the Courts have to take all such circumstances into consideration. The mere fact of delay beyond period of 24 hours cannot be considered in isolation.

M. A. RASHID, J.---I agree.

ABDUL QADBBR CBAUDHARY, J.---I agree.