t Confession JA Research Paper] (District Judiciary Swabi) t Adal Distt Sens Juke / . Beenish Ismail Judicial Magistrate Swabi ‘Amir Ali Civil Judge-VI Swabi Salman Ahmad Civil Judge-VIII SwabiCONFESSION [A Research Paper] INDEX S. No. Contents Page 1 Prelude 7 1 [3 | Meaning of confession 1 3 | Definition of Confession 1 4 | Iilustration 5 5 Relevant Law 2 6 Condition Precedents a [4 Confession before whom recorded 2 8 | Mode of Recording of confession 23 9 | Burden of Proof 3 10 Safe guard to make confession a 3-4 11 | Kinds of confession - 4 111 _ | Judicial Confession - 4 112 _ | Extra Judicial confession 45 12 Retracted confession 5 12.1 _ | Meaning of Retracted confession 5 122 _ | Definition of Retracted confession sw 5 123 | Evidentiary value re re 124 _ | Nature of corroboration =a B Confession before police — 6 13.1 _ | General Rule 6-7 13.2 __ | Other uses of confession before a police officer 7 Circumstances when statement are considered as confession 133 | waQso 7 | 14 __| Important features of section 164 Criminal Procedure Code 78 15 Form prescribed for recording 8-10 16 __ | Instructions for record confession. 1-14 17__| Conclusion 15 Some leading judgments on confession 15 References 16 Letters of worthy august Peshawar High Court, Peshawar | Annexure “A&B”‘¢ PRELUDE: The term confession primarily originates from common law while English law does not recognized confession as a total independent term. In English law, self-harming statement in criminal cases are called confessions. In other words, confession are source of proof of acrime in criminal matters. And are received on the presumption that person will not make an untrue statement to his own detriment. Confession are also recognized by the Holy Quran and sunnah. Holy Prophet (PUH) has considered confession a conclusive proof in many cases and he implemented Hadd merely on the confession of the accused. So confession voluntarily made and duly proved can become the sole basis for conviction. The whole topic of confession i.e. kinds of confession, mode of recording it, can a confession be retracted and confession before police officer, for a long time sir Stephen’s definition was accepted but was overruled by privy council in case NARYANA SWAMI VS EMPEROR. Lord Atkin’s view A confession is a statement made by an accused which must either admit in terms, the offence or at any rate, substantially, all the facts which constitute an offence. In short, we can say a confession is a statement made by a person (accused) admitting his guilt, MEANING OF CONFESSION:- According to Justice Munir:~ Confession means an acknowledgment in express words, by the accused in a criminal case, of the truth of the guilty facts charged or of some essential part of it. DEFINITION: The expression confession has not been defined anywhere in the QSO_ 1984, However, according to Sir Stephen “A confession is an admission made in any time by a person charged with a crime stating or suggesting the inference that he committed the crime”. Page # 1 of 16at ILLUSTRATIO! Mr. A charged with an offence of murder. He voluntarily acknowledges his guilt before a Magistrate. His acknowledgement amounts to confession. RELEVANT_LAW: The substantive law of confession is contained in articles 37 to 43 of the QSO 1984 while its procedural law is provided in section 164, 364 and 533 of the CrPC. CONDITION PRECEDENT: Following are the conditions precedents for the relevancy as well as the admissibility of confession. To make a confession under Articles 37 it must be shown > ‘That it was made by an accused and > That it was made voluntarily or with free will of the accused. By the word voluntarily means that confession is not caused by a threat or promise. In order to make it the foundation for conviction it ‘must further be shown that > It is true and > It is taken as a whole CONFESSION BEFORE WHOM RECORDE! A confession is recorded before a Magistrate or a court, in case of judicial confession. While in case extra judicial confession, it may be addressed to anyone other than a Magistrate or court. MODE OF RECORDING OF CONFESSION: Magistrate/court is bound to record confession in the manner laid down in section 164 and 364 Cr.PC respectively. It is incumbent upon the Magistrate to inform the person, so produced before the recording of confession > That he is not bound to make a confession at all, and Page # 2 of 1610. > That if he does, it may be used as evidence against him and > The Magistrate must before recording it ascertains, by proper questioning whether it was being made voluntarily or not. All the proceedings of recording of confession ws 164 or 364 are to be recorded and read over to the person making confession. It must also be signed by the Magistrate /judge as well as by the person making confession, There must be substantive compliance of the provision of section 164 and 364 of CrPC, while admitting confession, otherwise it will be inadmissible ws 533 of CrPC. BURDEN OF PROO! The confession must be of voluntarily nature and the burden of proof of its voluntariness lies on the prosecution. SAFE GUARD TO MAKE CONFESSIO! As conviction can be based merely on confession so great caution is taken while recording a confessional statement. Following are certain measure enumerated by the order which provide safeguard for recording a confession, > There should not be an clement of inducement of any form whether expressed or implied. > There should not be threat > There should not be a promise. Article 37 QSO. Articles 37 is based on the Hadeed of the Holy Prophet who said “My ummah has been exempted from (liability) of the action done by mistake, forgetfulness or for which they have been forced to do” EXPLANATION While considering the above mentioned safeguard it must be made sure that the inducement threat or promise has > Come from a person in authority, > Areference to the charge against the accused, > The ability to make the accused to believe that by confessing the crime he is to gain some advantage or to avoid temporal evil. Page # 3 of 161. ‘The offer of the slightest inducement, promise or threat effects the voluntary nature of confession and thus vitiates it. The words “appears as used in articles 37, indicates a lesser degree of probability than proof, So, a well-grounded suspicion of inducement, threat or promise reasonably based on the facts and circumstances, is sufficient to exclude a confession. KINDS OF CONFESSION:- 11.1. JUDICIAL CONFESSION: Judicial confession are those confession which are made before Magistrate or a court, in the course of legal proceedings. E.g confession recorded w/s 164 and 364 CrPC. PROOF:. A judicial confession is a matter required by law to be reduced into writing. Oral confession is thus, inadmissible. In order to prove a judicial confession, the documentary evidence must be produced before the court. “ITS ADMISSIBILITY”- a Judicial confession is admi: provided that > The requirements of articles 37 to 39 of QSO 1984 read with 164, 364 read with 533 are fulfilled. > The confession was made voluntarily by free will of the accused > Itis true and trust worthy. > It is the court or judge to see and to find out whether the aforementioned requirements were fulfilled or not, Slight doubt would be enough to go in the favour of accused and confession might be rejected. 11.2. EXTRA JUDICIAL CONFESSION: A confession which is neither made to a Magistrate nor in the course of a legal proceedings is described as extra judicial confession, In short such confession made by party elsewhere than before a Magistrate or a court it is not even necessary that the statement should have been addressed to any definite individual. Page # 40f 16PROOF:- it may be contained in a document made by the accused or it may be made verbally, if it is documentary then the document itself must be produced if the original is not available than secondary evidence is also admissible. ITS_ADMISSIBILITY:- an extra Judicial confession is not admissible. ITS EVIDENTIARY VALUE”- an extra judicial confession must be received with great care and caution. Its carries lesser weight because of the following reasons:- The exact words of the accused cannot be known. ‘The witness may have misunderstood the statement The witness may not have remembered or reported accurately VEY, 1, The words used in the statement may have more than one meanings > However, conviction may still be based upon it, provided it was made voluntarily and note made in police custody. It would not be safe to convict a person on such type of confession alone, unless corroborated by other evidence on record. This is a rule of prudence rather than of law. 12. RETRACTED CONFESSIO! 12.1 MEANING:- According to laws dictionary, the word “retract” means, to draw back, to withdraw, to unsay, to take back or draw back from what has been said earlier Retracted confession simply means, a confession which has been withdrawn or taken back by the accused. 12.2. DEFINITION:- A retracted confession is a confession made by an accused and subsequently retracted. 12.3 EVIDENTIARY VALUE: retracted confession must be viewed in respect of the evidentiary value of (j). Value against maker (Accused) (ii). Value against co-accused (@. VALUE AGAINST MAKER:- if the confession previously made , fulfills the requirements as mentioned in Page # 5 of 16Articles 37 to 38 then the retraction, thereof , cannot diminish the evidentiary value of the confession, previously made. Hence, a retracted confession may form the basis of conviction. But the better point of view is that conviction cannot be held without _ independent corroboration. (ii). VALUE AGAINST CO-ACCUSED:- the retracted confession can be taken into consideration against a co- accused but its value is practically nil. It cannot be made foundation of conviction, but can only be used in support of other evidence. In other words, although retracted confession is admissible against co-accused but it is a weak evidence and requires corroboration of a higher degree. 12.4 NATURE OF CORROBORATION:- nature and extent of corroboration depends on the circumstances of a case. In fact, corroboration is more required when retracted confession is used against accused-accused. The terms “corroboration” here connotes 1) corroboration as to the factum of the crime, and Il) Corroboration as to the identity of the persons. 13 CONFESSION BEFORE POLICE OFFIC! 13.1 GENERAL RULE: According to articles 38 a confession made before a police officer is inadmissible. The reasons for the exclusion of confession before a police officer are: © To avoid the practice of torture by police for extracting confession from the accused. © Toavoid the consequences of admitting false confession. EXCEPTION U/A 40: Article 40 provides an exception to the general rule, that statements given by the accused in the custody of a police officer leading to the discovery of a fact.( e.g instrument of crime , stolen goods). In this connection only so much of the information as relating Page # 6 of 16distinctly or directly to such discovery becomes admissible. The rest must be totally excluded. 13.2. OTHER USES OF CONFESSION BEFORE A POLICE OFFICE! i, IMPEACHMENT OF CREDIT: a confession before police officer may be used to impeach the credit of confessor. This is where the confessor is examined as a witness against other co-accused. ii, COMPARISON: a confession before a police officer can be used to compare the confession before a Magistrate, but it cannot be used for corroboration of the latter. 13.3 CIRCUMSTANCES WHEN STATEMENTS ARE CONSIDERED AS CONFESSION U/A 42 QSO:- a confession does not become irrelevant merely because it was made under either of the following circumstances: i. A promise of secrecy or ii, In consequence of a deception or iii, When confessor was drunk or iv. When confession was elicited in answer to question or v. When warning was given that he was not bound to say anything whatever he said might be used as an evidence against him, ‘These circumstances shall not be applicable to the cases falling under Hadood: IMPORTANT FEATURES OF SECTION 164, CRIMINAL PROCEDURE COD! Some important features of section 164 are; i Statements of 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. Page # 7 of 16iii. vi. Confessions must be recorded and signed in the manner provided in section 364. 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. 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. ‘The memorandum set forth in section 164 (3) must be appended at the foot of the record of the confession. It is not necessary that the Magistrate receiving or recording a confession or statement should be Magistrate having jurisdiction in the case. FORM PRESCRIBED FOR RECORDING CONFESSIONS:- For recording confessions taken under section 164 of the code of the following form shall used:- Page # 8 of 16{N-THE.COURT OF JUDICIAL MAGISTRATE, SWAB Swiement of sceused si, Charged ia FIR Accsed's SigoatateThamb Impression Cenifod US 364 CPC. Judicial Magistrate, Swabi, Page # 9 of 16Certified tat vous v0. the. charged in Case FIR No. Dated__ US, Ps. on a was produced by the Sl » of PS {or recording his confessional statement during the court hours. The handouts ofthe aceused were removed and le was made to sit and given time 1 think over. During this time, all the police officials including APP and Naib Court were direted to leave the court room so thatthe accused should not fel under pressure, The eeused was made to understand that 1am a Magistrate and tet he was not bound 10 make a confession and if he does so, it wil be used aguinst him s apiece of evidenes. All the legal formalities have been observed, The questions mentioned in the questionnaire were asked from the accused and his replies were recorded. Accused was given minotes time to pond over his confessional statement. Tho accused vas asked four times with intervals Ee and all the time he confessed his guilt I started recording of confessional statement of accused t_ tnd complet the some by _. He gave his statment in ‘wich was translated into Ud by me and was seibed by me in my o¥m hand writing. The same salement was read over othe accused and he was made fo understand the same, The stement andthe questionaire was thumb impressed by the accused in my presence. | cotfy that it contsins crest and tue account ofthe statement given by the cused. ‘The accused was handed overt the Naib Couto be hep in the Jul Lock Up Dated: Judicial Magistrate, Swabi Page # 10 of 16INSTRUCTIONS FOR RECORDING CONFESSIONS:- i, | SHOULD BE RECORDED IN OPEN COURT DURING COURT HOURS:- Unless there are exceptional reasons to the contrary confessions should be recorded in open court and during Court hours. Police Officers investigating the case should not be present. ii. ACCUSED WHO HAS MADE _A__CONFESSION SHOULD NOT BE KEPT IN POLICE CUSTODY, BUT SHOULD BE KEPT IN JUDICIAL LOCK UP SEPARATE FROM OTHER PRISONER: ‘An accused person who had made a confession before a Magistrate should be sent to the judicial lock up and not made over to the Police after the confession has been recorded. If the Police subsequently require the accused person for the investigation, a written application should be made giving reasons in detail why he is required, and an order obtained from the Magistrate for the purpose of making a confession, has declined to make a confession or has made a statement which is unsatisfactory from the point of view of the prosecution he should not be remanded to Police custody. When remanding to the lock up an accused person who has made a confession, the Magistrate shall record an order for him to be kept separate from other prisoners as far as may be practicable. STATEMENT TO BE RECORDED IN THE LANGUAGE IN WHICH THEY ARE MAD} Every statement or confession by an accused person, recorded under section 364 or section 164 of the Code of Criminal Procedure shall, whenever practicable, be recorded in the Janguage in which such statement or confession is made. iv. | WHEN TRANSLATION MUST BE MAD! Page # 11 of 16vi. vii. When such language is not the language of the Court as determined by the ‘Provisional’ Government under section 558 of the Code of Criminal Procedure, or the language prescribed by an order under section 357 of the Code, the record of the statement or confession should, in all appealable cases, be translated into the language of the district, or into the English language where the Sessions Judge or Magistrate ordinarily writes his proceedings in English, and such translations should be authenticated by the signature of the translator and also of the Judge or Magistrate before whom the statement or confession is made. HOW TO BE TAKEN DOWN:- ‘The statement or confession should be written down fully and accurately, and if not written by the Magistrate with his own hand, the Magistrate should, as the examination proceedings, make a memorandum of such statement or confession in the language of the Court or in English, with his own hand and under his signature. QUESTIONS TO ACCUSED PERSON:- ‘The Magistrate should only question the accused person so far as may be necessary to enable the Magistrate to understand clearly the accused person’s meaning. Every question put and every answer made to such question, should be written down in fall. STATEMENT OR CONFESSION TO BE READ TO ACCUSED AND ANY EXPLANATIONS OR ADDITIONS RECORDED: When the accused person has concluded his statement or confession the written record of his statement or confession should be read out or shown to him by, or in presence of the Magistrate, and any explanations or additions by the accused person to such statement or confession should be written down in the manner prescribed above. Page # 12 of 16viii. ix, xi, xii, TO BE SIGNED BY ACCUSED:- The Magistrate shall then desire the accused person to add his signature or mark to such statement or confession. If the accused person decline to sign or affix this mark, the Magistrate shall state the fact and the reason, if any assigned by the accused person for so declining. CERTIFICATE OF MAGISTRATE: The Magistrate shall then certify, under his own hand, that the statement or confession of the accused person was made ‘voluntarily; that it was taken in his presence and hearing; that it was read over to him and was admitted to be correct, and that it is a full and true account of the statement made by the accused. ANY OTHER CIRCUMSTANCES MAY __ BE RECORDED BY MAGISTRATE:- ‘The Magistrate may state in writing any other circumstances attending the making or recording of the statement or confession of an accused person, Any such memoranda made by the Magistrate, if not embodied in the certificate, must be separately signed him. ADDITIONAL FORMALITIES TO BE OBSERVED IN THE CASE OF CONFESSIONS RECORDED US 16: When the statement to be recorded is a confession under section 164 of the Code, the following additional formalities must be observed; Before recording the confession the Magistrate shall write, in the language in which he ordinarily writes his judgments, a brief memorandum in the inquiry made by him, and which he is by law bound to make, in order to ascertain that the accused person is acting voluntarily in making a confession. RECORD; HOW TO BE MADE:- Page # 13 of 16xiv. xv. After entering his ‘Memorandum of Inquiry’ the Magistrate should proceed to record the ‘statement of the accused’ on the sheet so headed, to which he should obtain the mark or signature of the accused, and should sign the same himself and also. the certificates appended. The Magistrate should remember that, according to the Code (section 364), the statement must be recorded in the form of question and answers, and every question asked must be recorded. BLANK SPACE TO BE MARKE! When the accused person’s statement is not sufficiently lengthy to cover the entire space allotted in the form, the Magistrate should draw his pen diagonally across the unused space to mark the actual conclusion of the statement made. MARK OR SIGNATURE OF ACCUSED:- In cases in which the Magistrate records an English rendering of the statement made by the accused in his own vernacular, the mark or signature of the accused should be affixed to the statement recorded in the accused’s vernacular and not to the English counterpart. CONFESSION SHALL BE FORWARDED TO THE MAGISTRATE BY WHOM THE CASE IS TO BE INQUIRED INTO OR TRIED: Section 164(2) of the Code, lays down that any such confession shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried. Since the magistrate recording confession cannot enter into trial of the case, therefore, the proper course is that whenever such confession is recorded the same should be sent to the Session Judge of concerned Sessions Division alongwith complete challan who shall than mark the same for trial to the concerned Court. Ref:- (PHC Letter No.3282-3307/Admn Dated Peshawar, 03" November, 2010). Annexure “A” Page # 14 of 1617. CONCLUSION:.- ‘The upshot of the whole fruitfully discussion is that admission in reference to crimes are generally called confessions. All confessions, therefore, come under admissions but all admissions are not confessions, because and admission may be used, under the exceptions provided in Article 34 on behalf of a person making it. While confession is always used against the confessor or the person making it. Admission is considered as an estopel meaning thereby once admitted cannot be retracted, while retraction from a confession is possible. So it cannot be considered as an estople. In order to render a confession admissible it must be voluntarily made. The law is so strict that the confession not voluntarily made is rejected even if it be proved. There is no legal bar to a conviction being on a voluntarily confession if believed to be true but the rule of prudence required that whenever possible it should be strongly corroborated by independent evidence. SOME LEADING JUDGMENTS ON CONFESSIO! > Time to be given (India PLD SC 1957 555) > Only one hour would be sufficient (1984 PCRLJ 611) > Power discretion (211 MLD 722) > When statement w/s 164 may be treated as evidence (2012 PCRLI 588) > Confession must be recorded and signed in the manner as provided w/s 364 Cr.PC > Explaining to accused that he is not bound to make confession (1996 PCRLJ 358) > Jurisdiction of magistrate is immaterial (PLD 1993 Lah 345) > Person accused not present before the court is no confession (1999 MLD 1423) > Confession administering oath is inadmissible (AIR 1749 PC 326) > Exculpatory statement if not true, voluntary held, no confession (2000 SCMR 785). Page # 15 of 16REFERENCES:- > Judicial Esta Code vvvyv Paper Prepared by Committee Groups Legal Book by phipson Edition 201 Shah Wali Ullah Hamid Addl: District & Sessions Judge- IV, Swabi g Beenish Ismail Judicial Magistrate Swabi ‘Amir Ali Civil Judge-VI Swabi Salman Ahmad Civil Judge-VIII Swabi_ High Court Rules & Orders (Volume III, Chapter XIII) Qanoon-e-Shahadat, 1984 Criminal Procedure Code Commentary by M. Mehmood Page # 16 of 16Annexure “A” LETTERS OF WORTHY PESHAWAR HIGH COURT, PESHAWAR:- T am directed to refer to the subject noted above and to say that during inspections it has come to the notice of this court that the Magistrate after recording confessions under section 164 Criminal Procedure Code, 1898, keep the original in their own custody. This practice is in clear violation of the law on the subject. sSection 164(2) of the Code, lays down that any such confession shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried. Since the magistrate recording confession cannot enter into trial of the case, therefore, the proper course is that whenever such confession is recorded the same should be sent to the Session Judge of concerned Sessions Division alongwith complete challan who shall than mark the same for trial to the concerned Court. This circular may be circulated amongst all the Judicial Officers under your control. (PHC Letter No.3282-3307/Admn Dated Peshawar, 03" November, 2010).Annexure “B” a a. The PESHAWAR HIGH COURT Pa siya ach PaO Boon” saws pT Moonee No, $03/PHC/REG/64-V.11-(1-34)/Sol1-C] Dated Pesh, To All the District & Sessions Judge/Zilla Qazis, = Khyber Pakhtunkhwa, Suszect: ILLEGALITIES IN RECORDING OF JUDICIAL CONFESSION OF ACCUSED, Dear Sir, Tam directed to refer to the subject noted above and to say that the Competent Authority has been pleased to observe that at times learned Judicial Magistrates do not strictly follow and abide by the procedure, while recording confessional statement of an accused, as laid down in sec-164 and 364 Cr.PC read with Chapter-XI1I, Vol-II of High Court Rutes and Orders. You are therefore, directed to ensure compliance of and adherence to the law gg rules on the subject by the Judicial Magistrates in letter and spirit. OM ap a at (Krvaah-wastr-uD-B In oo ae st ri \y BEGISTRAR 9-4 a (o.8D3/PHC/REG/64-V.11-(1-34)/ Date s2019 Copy forwarded for Information to: 1. The Director General Prosecution, Khyber Pakhtunkhiva, Peshawar. 2. The District Public Prosecutor, Peshawar with reference to his letter No.1885- .89/0PP, dated 06.08.2019 f (KHWAJA-WAJIH-UD-DIN) REGISTRAR