Even a confession recorded before a Magistrate will not be credited if the Magistrate fails to comply with the High Court Rules and CrPC sections 364 and 164. “It is a consistent view of the Courts that extra-judicial confession, if made before a person of influence and authority, expected to extend helping hand to the accused, which is also strongly corroborated, can only be considered as a piece of circumstantial evidence . . . Such evidence is held to be the weakest type of evidence. No conviction on capital charge can be recorded on such evidence.”
Two co-accused were convicted and sentenced to death under PPC 302(b), among other convictions, for kidnap and murder of a young boy in Rawalpindi. The convictions and death sentence were confirmed by the Lahore High Court.
Each co-accused had recorded a confession before a Magistrate, which each later retracted. The prosecution also alleged that one of the accused had confessed his crime to a close relative of the deceased. The relative alleged that he had received the confession in Rawalpindi but had to travel to Peshawar to conclude an important business deal, so he told the police of the confession the next day upon his return. Although confessions were recorded before a Magistrate, the Supreme Court found that the Magistrate had committed successive illegalities in recording the confessions and had thus failed to satisfy the High Court Rules, which lay out a binding procedure for observing the requirements of Cr.P.C sections 364 and 164. The Supreme Court described the requirements in detail as follows:
The fundamental logic behind the same is that, all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shedded out and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection is to be given after the first warning is administered. At the expiry of that time, Recording Magistrate has to administer the second warning and the accused shall be assured that now he was in the safe hands. All police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Court and beyond the view of the accused. After observing all these legal requirements if the accused person is willing to confess, then all required questions formulated by the High Court Rules should be put to him and the answers given, be recorded in the words spoken by him. The statement of accused be recorded by the Magistrate with his own hand and in case there is a genuine compelling reason then, a special note is to be given that the same was dictated to a responsible official of the Court like Stenographer or Reader and oath shall also be administered to such official that he would correctly type or write the true and correct version, the accused stated and dictated by the Magistrate. In case, the accused is illiterate, the confession he makes, if recorded in another language i.e. Urdu or English then, after its completion, the same be read-over and explained to him in the language, the accused fully understand and thereafter a certificate, as required under section 364, Cr.P.C. with regard to these proceedings be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process at no occasion he shall be handed over to any police official/officer whether he is Naib Court wearing police uniform, or any other police official/officer, because such careless dispensation would considerably diminish the voluntary nature of the confession, made by the accused. (Emphasis added)
The court noted that the Magistrate “was so careless that the confessions of both the appellants were recorded on oath, grossly violating the law” and that “after recording the confessions of the appellants on oath, both were handed over to the same police officer, who had produced them in the Court in handcuffs. This fact bespeaks volumes that the Recording Magistrate was either not knowing the law on the subject or he was acting in the police way desired by it, compromising his judicial, obligations.” Overall, the failure to strictly satisfy the High Court Rules “rendered the confession inadmissible which cannot be safely relied upon keeping in view the principle of safe administration of justice.” The confessions could not corroborate each other because each was tainted.
Regarding the alleged confession to a relative of the deceased, the court found the allegation to be “highly insensible” and “counter to natural human conduct and behaviour” that an accused would confess such a grisly crime to a relative of the deceased, particularly without seeking his assistance to reach compromise. Further, the court found it unreasonable that, upon receiving such confession, the relative would have concluded his business dealings without relaying the confession to his relatives or the police until the next day. The court noted that “It is a consistent view of the Courts that extra-judicial confession, if made before a person of influence and authority, expected to extend helping hand to the accused, which is also strongly corroborated, can only be considered as a piece of circumstantial evidence . . . Such evidence is held to be the weakest type of evidence. No conviction on capital charge can be recorded on such evidence.” After finding issues with the little remaining evidence as well, the Supreme Court acquitted each accused of all charges.
