Accused should be warned immediately before recording confession that not bound to confess.
Steps prior to recording confession;
°√ Handcuff should be removed.
*√Police sent out of Court room.
Questionair for the Accused.
1. For how long have you been with the police?
2. How long have you been with the Police?
3. Has any pressure been brought to bear upon you to make a confession?
4. Have you been threatened to make a confession?
5. Has any inducement been given to you?
6. Have you been told that you will be made an approver?
7. Why are you making this confession?
8.The accused given sufficient time to ponder over the matter.
9. Explain that he is not bound to make a confession.
10.To Confess or not will not be sent back to police custody but would be sent to the judicial lockup.
(DB) PLD 1958 Lah. 559. Said Begum. Also PLD 1987 FSC 43 Liaqat Bahadar etc.
11. Should be informed that he is in the court before a Magistrate.
12.His statement may be used against him in evidence.
Keep in Mind.
A participle, a tense, a mood, an emphasis, may make the whole difference between guilt and innocence. "Lord Macaulay
√ Oral confession of guilt.
√ Admissions in Civil cases should be received with great caution.
"Words may easily be misunderstood by an honest man.
√ They may easily be misconstrued by knave.
√ What was spoken metaphorically may be apprehended literally.
√ What was spoken ironically may be apprehended seriously.
Case Laws.
The Magistrate should satisfy that the confession is being made voluntarily and then record it.
1975 P.Cr. LJ 889 Muhammad Sharif.
..............
Judicial confession not recorded according to High Court Rules as given in Chap. 13 Vol. III Such confession ruled out of consideration. NLR 1987 Cr. 831 Munir Ahmed etc.
Accused cannot be questioned unless a circumstance appears in evidence against him. If such question is put to him and he admits the existence of the circumstance, the statement even if it amounts to a confession cannot be acted upon at the trial. Only that material can be used against the accused which has been obtained in accordance with law, and nothing that is not so obtained is relevant. PLD 1950 BJ 5 Ghulam Farid v. Crown.
Judicial confession; no question recorded by magistrate that if the accused did not make the statement he would not be handed back to the police but would be sent to jail. The appellant remained in police custody after his judicial confession. Confession not relied upon. PLJ 1995 FSC 109, Ahmed Sher.
"Why are you making a confessional statement in a murder case." The Magistrate should have asked this question from all the accused making the confession, which he failed to do. Appeal allowed. PLJ 1996 Cr.C (Pesh) 371, Murtaza etc.
No formalities of law observed. It could not be admissible in evidence at all. AIR 1936 P.C. 253 = PLD 1950 BJ 5 Ghulam Farid v. Crown.
Printed form. It is very undesirable that confessions should be made on any printed form and that the Magistrate should not be made to express his own words exactly why he considered that the confession is being made voluntarily. (DB) 47 Cr. LJ 252 Bhimappa Talwar v. Emp. 222 Ind. Case. 143 = AIR 1945 Bom. 484.
Self-exculpatory confession cannot be used against the co-accused under section 30 of Evidence Act. Cr.LJ 252 Bhimappa Talwar.
Confession not recorded according to sections 164 and 364, Cr.P.C. by Magistrate. The accused took the Magistrate round the place of occurrence and made full confession about the robbery and firing a revolver which killed a pursuer. The Magistrate made rough notes and after dictating a memorandum to the typist destroyed the rough notes. He produced the memo in Court, signed it. It contained the substance but not all of the matter to which he spoke orally. Held, that section 164 and section 364 of the Code of Criminal Procedure must be construed together and the effect of the statute is to prescribe the mode in which confessions are to be dealt with, when made to a Magistrate during the investigation, and to render oral evidence of such confessions inadmissible. It is well-recognised rule of construction that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. ILR 1936 (17) Lah. 629 Nazir Ahmed v. The King Emperor (PC).
Non compliance with mandatory provisions of Sec. 364(2) Cr.P.C. is not a mere irregularity which is curable but is an illegality which is not curable.
Case remanded for retrial. PLJ 1997 FSC 52, Mst. Khial Meena etc.
Where a particular procedure is prescribed for doing a particular thing that thing has to be done according to that procedure. When prescribed procedure is not followed it would taint the entire proceedings with illegality or irregularity as the case may be. PLJ 1997 Cr.C (Kar) 33, Saeed Farooq.
Judicial confession when requirement not complied with by the Magistrate Confession not relied upon. Conviction set aside. PLJ 1992 Cr.C. (Kar.) 400, Manoo.
Provisions of Sec. 364, Cr. P.C not complied with while recording of statement of the accused. Defect not curable by Sec. 537, Cr.P.C. Conviction set aside. NLR 1985 Cr. 113 Muhammad Inayat.
Magistrate not examined.
Magistrate recording confession not examined and Magistrate not complying with legal formalities. Confession not considered. (DB) PLJ 1982 Cr.C. (Kar.) 201 Dost Muhammad.
Warning given not on record. Nothing on record to show that warning contemplated by section 164 (3), Cr.P.C had been given to the accused. Confession, held, inadmissible, though Magistrate recording confession deposed at trial that such warning had been given. PLD 1965 Kar. 242 Ramzan.
Prescribed warning under section 164 (3), Cr.P.C. not given by Magistrate. Confession vitiated. (DB) PLD 1971 Lah. 850 Ghulam Muhammad.
Time to think over
No time given for thinking over before making judicial confession, u/s 164 Cr.P.C. Accused was taken to the Magistrate by the police for recording confession at 4 p.m. and his custody was handed back at 4.30 p.m. Held, accused had hardly any reasonable time at his disposal to think over before recording his confession; the circumstances cast doubt about the voluntary nature of the confession. 1993 SCMR 1822, State v. Muhammad Nazeer.
Time to think
High Court Rules and Orders (Lah.) Vol. III Chapter XIII. Rule 13. At least half an hour to be allowed to prisoner to compose himself before making confession. It is better if more time is given e.g., 24 hours (DB) PLD 1971 Lah. 850 Ghulam Muhammad.
Time for reflection before confession. No hard and fast rule as to how much time is to be allowed. period of time depends on each case. PLJ 1981 SC 52 Gul Jamal 1980 SCMR 654.
Record silent about the circumstances under which accused was brought before Magistrate for recording confession. Accused alleging that he was forced to make a statement. Position held doubtful. Benefit given to the accused. (DB) PLD 1965 Quetta. 20 Ali. v. Adbul Majid.
Questions and answers ,not recorded,
If questions are put by the Magistrate, but the actual questions and answers are not recorded, the defect can be cured under section 533 by the evidence of the Magistrate. (DB) ILR 18 (1937) Lah. 658 = AIR 1938 Lah. 200 Muhammad Din v. R.
When statement of Magistrate recording confession is not challenged, it is not possible to presume that the Magistrate did not record the confession of the accused without complying with the requirements of law u/S. 164(e) Cr.P.C. Inference would be that the statement was made voluntarily. (DB) PLJ 1998 Cr.C. (Q) 879, Abdul Ghani.
Certificate. Where the required certificate was not appended but Magistrate deposed that he had satisfied himself about the voluntariness of the confession and gone through formalities the confession was held admissible. (DB) ILR 1921 (2) Lah. 129 Umar Din v. Crown.
Recording Magistrate's evidence before committing Magistrate transferred to sessions record was excluded from consideration as not having fulfilled the requirements of section 33, Evidence Act. (Why Magistrate's presence in the trial Court was not possible not proved). No other evidence to prove confession. Confession. held, inadmissible, (FC) PLD 1952 FC 63 Amin-ul-Haq v. The Crown.
Record after Court hours. Confession recorded after Court hours in contravention of Criminal circulars. Such confession held not reliable. (DB) 1975 P.Cr. LJ 1077 Abdul etc.
Record after Court hours. Confession recorded after Court hours in contravention of Criminal circulars. Such confession held not reliable. (DB) 1975 P.Cr. LJ 1077 Abdul etc
Confession recorded on the 3rd day of the arrest of the accused, must be ruled out of consideration. The delay of over 24 hours would normally be fatal to the acceptance of a judicial confession. (DB) 1975 P.Cr. LJ 440 Tooh. PLJ 1975 Cr.C (Kar.) 508 (DB) PLJ 1977 Kar. 420 Abdul Majid. Overruled by (FB) PLD 1978 Quetta. 1. Shaukat Saeed. PLJ 1978 Cr.C. (Q) 160 PLJ 1978 SC 21 Naqibullah.
Confession during illegal confinement of the accused recorded, held, stands vitiated and has no legal value. (D.B.) PLJ 1996 Cr.C. (Pesh.) 1839, State v. Mst. Zohra Bibi and another.
Police custody for 5 days. Accused remained in Police custody for 5 days before making a judicial confession. This fact alone cannot lead to the presumption that the confession was due to inducement, threat or promise. (DB) PLD 1976 Pesh. 135 Muhammad Karim PLJ 1976 Pesh. 84.
Confession after police custody. Accused remaining in police custody for some time does not affect their judicial confession. PLD 1972 SC 363. Syed Sharif-ud-Din Pirzada v. Sobat Khan.
Delayed confession: Confession recorded after a delay of one month in Police custody considered suspicious and not relied upon. 1981 SCMR 597. Khan Muhammad etc.
Delay in recording judicial confession per se is no ground to discard it unless it is improved or emerges from the circumstances to have been obtained by coercion, threat, pressure etc. 1995 SCMR 1615. Muhammad Ismail.
Delay in recording confession not explained, held, no evidentiary value can be attached to such confession. (DB) PLD 1977 Kar. 760 Abdul Majid.
Delay per se in judicial confession is not ground to discard it unless it is proved that it was obtained by coercion, threat or pressure. Details given by appellant establish that it was true and voluntary. The confession can be used against the confessor and as circumstantial evidence against the co-accused. Death sentence maintained in triple murder case. PLJ 1996 S.C. 805, Muhammad Ismail etc.
Delayed recording of confession. No satisfactory explanation for delaying the recording of confession for two weeks, confession not relied upon. PLD 1977 Pesh. 64 Said Anwar.
Delay in recording confession remaining unexplained and if exhibiting an unconscionable state of affairs can be fatal to retracted confession. Conviction cannot be based on retracted confession alone. Such confession must be corroborated by other evidence showing that the crime must have been committed by the accused. PLJ 1999 SC 264 Abdul Latif.
Judicial confession doubtful when the accused not produced before magistrate immediately after arrest nor necessary questions put to him before recording confession. PLJ 1987 FSC 31. Liaqat Bahadar.
Judicial confession made after 5 days of arrest, and the accused not told that he would not be sent back to the police custody. Confession not relied upon. (DB) PLJ 1987 Quetta. 96. Azeem Shah.
Delay in recording confession is not fatal, when Court is satisfied that the confession is voluntary. PLJ 1985 Cr.C. (Q) 357. Kadir Bakhsh.
Judicial confession made 10 days after arrest and no reliable corroborative evidence found. Appellant acquitted. (DB) PLJ 1981 Cr.C. 162 Rajab.
24 hours delay in recording judicial confession without explanation, such confession to be ruled out of consideration. (DB) PLJ 1986 Cr.C. (Q) 271 Wali Muhammad.
Judicial confession made 7 days after being in police custody. Magistrate did not take necessary precautions to remove appellant from police influence. Confession retracted at the earliest, held, no reliance could be placed on such confession. PLJ 1993 Cr.C. (Kar.) 386, Syed Ali Shah.
Confession made after 16, 10 and 6 days after before a Magistrate not relied upon. PLJ 1994 FSC 56, Bijar etc.
Judicial confession recorded 10 days, after arrest ruled out of consideration. (DB) 1980 P.Cr.LJ State v. Ishaq.
Detention in Police custody. The Magistrate recording the statement regarding a confession should ask. "How long has the accused been in police custody?" The precaution is very wise and salutary but failure to do so is not an irregularity invalidating the confession. (DB) AIR 1931 Lah. 763 Abdul Ghani v. Rex.
The confessing accused must invariably be sent to the judicial lock-up and on no account to be returned to police custody. (DB) AIR 1938 Lah. 292 Surat v. R. AIR 1937 Lah. 98 Jahanan v. R.
Judicial confession not relied on when at variance with account given in extra-judicial confession and Magistrate not telling the accused that the would not be sent to police custody, before recording the confession. (DB) 1975 P.Cr.LJ 70 State v. Haji Khan.
Some irregularities in recording of confession to be overlooked in order to judge the evidentiary value of a retracted confession when the same appears to have been voluntarily made, without any inducement, duress or coercion with the object to state the truth. 1992 SCMR 1988, Ch. Muhammad Yaqub etc.
Custody does not necessarily mean custody after formal arrest, but includes a state of affairs in which the accused can be said to have come into the hands of a Police Officer or have been under some form of police surveillance or restriction on his movements by the Police. (Section 26 and 27, Evidence Act). AIR 1932 Lah. 609 Grudial v. R. AIR 1937 Lah. 629 Allah Ditta v. R. AIR 1940 Lah. 242.
Police Custody. Mere fact that the person making confession remains in Police Custody for some time does not lead to conclusion that the confession was tutored. Judicial confession relied on. (SC) PLD 1972 SC 363 Sharif-ud-Din v. Sohbat Khan.
Mere fact that the person making the judicial confession was remanded back to police custody does not make the confession involuntary. (SC) 1969 SCMR 421 Muhammad Sharif.
Accused remained for a fortnight in police custody before making confession. Confession held not voluntary. (DB) PLD 1960 Kar. 769 Haji Yar Muhammad v. Rahim Dino etc. PLD 1978 Pesh. 38 Asfandyar Wali.
Accused in custody of police for 8 or 14 days before making confession. Magistrate not questioning accused as to how long they have been in police custody nor informing them that they would not be sent back into police custody after confession. Text of confession disclosing that accused had been turtored. Confession not voluntary or reliable. (DB) PLD 1960 Kar. 797 Akhtari Begum.
Remand to police custody. False statement indicating same to be tutored appearing in confession and person making the confession handed back to the police. Confession held to be irrelevant.(SC) 1969 SCMR 390 1969 P.Cr.LJ 958 Khuda Bakhsh v. Crown.
Confessor delivered back to police custody after recording his judicial confession. Voluntarily nature of confession. vitiated. PLD 1960 Kar. 674 Wazir etc. (DB) PLJ 1977 BJ 22 Ghulam Rasul.
Handcuffs not removed and also Police not excluded from the Court-room before recording the confession. Held, confessions of no evidentiary value. (DB) PLD 1959 Lah. 541 Subey Khan.
Accused in Police custody before and after recording confession for 24 hours but before Magistrate recording confession for only one hour. Held confession not voluntary. (DB) PLD 1960 Kar. 160 Hashim.
Judicial Confession not relied upon when accused kept in illegal police custody for 6 weeks before confession was recorded. 1982 SCMR 321. State v. Asfandyar Wali etc.
Confessing accused detained by Police for more than 24 hours without warrant. Voluntariness of confession doubted. (DB) PLD 1960 Kar. 817 Hamzo.
No formalities under sections 164 and 364, Cr.P.C. observed but when the Magistrate examined subsequently as a witness the illegality was cured under section 53, Cr.P.C. PLD 1950 Bal. 1 Chandar v. Crown.
Provision under sections 164 and 364, Cr.P.C. and High Court Lahore. Rules and Orders Chapter XIII, Volume III disregarded Punjab Government Circular No. 6091-J-36/39829 (H. Judicial) dated 19th December, 1936. Directions not complied with. Held confession not duly made and therefore, 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. Irregularities in recording a confession can be cured under section 533, Cr.P.C. 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 the substance and not merely that of form. (DB) PLD 1950 Lah. 68 Bakhat Bano v. Crown.
Presumption when statement recorded under section 164, Cr.P.C. It is true that when a witness has made a statement under section 164, Cr.P.C. he is wedded to it. The Court should scrutinise the evidence of such witness carefully. Where, however, there are good grounds for getting statement under section 164, Cr.P.C. recorded no adverse presumption arises against the prosecution simply because it has done something lawful. (DB) PLD 1954 Lah. 646. Mian Khan v. Crown. (DB) PLD 1955 Lah. 271 Crown. v. Mirza Khan.
Extra Judicial Confession is a weak type of evidence.
It requires 3-fold proof for making it basis of conviction as it can easily be procured when there is no direct evidence:
Firstly that the confession was made;
(2) that the confession was voluntarily made;
(3) that it was truly made. 1996 SCMR 188, Sarfaraz Khan=PLS 1996 SC 467.
Extra Judicial confession is a weak type of evidence which can easily be procured. In this case the accused were not known to the witness before extra judicial confession was made. Extra Judicial confession not relied upon. PLJ 1996 S.C. 9, Sarfaraz Khan.
Extra Judicial Confession without cogent corroboration is not enough to bring case within prohibitory clause for concession of bail. Bail allowed for offence u/Ss. 392, 324, 353, 186, 109 PPC and sec 13 and 13A of Arms Ordinance, 1965. Abscondance not treated as corroborated piece of evidence. Bail plea had been rejected by Special Court No. VI at Multan. Bail allowed u/S. 497/498 Cr.P.C. (D.B) PLJ 1996 Cr.C. (Lah.) 91, Ahmed Jamal.
In absentia of any definition by QSO, 1984 …or …CrPc,it has been used many times but not defined explicitly.
1-Dictionary Parlance.
An accomplice is one who is associated, in any mode whatsoever, with another especially in any wrongful act.
The Federal Shariat Court, in its judgment titled Haider Hussain vs. Govt. of Pakistan, interprets the word accomplice in the following words:
“An accomplice is a co-accused, an associate or partner who has such relation to the criminal act that he [or she] can be jointly charged with the other accused.”
2-Relevent Law:-
QSO 1984. Article 16&129 illustration(b) .
S. 337 CrPc. Tender of Pardon.
3). Categories/Kinds of Accomplice.
i) Principle Offender.
A) Who actually commits the crime.
B) A person who abets or aids the commission of crime
ii) Accessories Before the Crime.
A provides facilities or gives financial aid to commit the crime.
iii) Accessories after the crime / Crime.
Who protect or comfort the person who committed the crime in any mode .
iii) Accessories after the crime.
who actually commits the crime, while principal offender of second degree is a person who abets or aids the commission of crime.
Credibility.
An Accomplice is also known as guilty associate or an approver (in urdu SULTANI GAWAH). An accomplice is a co-accused until he is granted pardon then his position turns to be an approver.
An Accomplice is unworthy of credit and is an unreliable person who betrayed co-accused fellows.So deserves to be punished with the other accused persons.
Why his Statement is Admissible.
To extract solid evidence against the greater offenders, the evidence of an accomplice is admissible,therefore, tendered a pardon under section 337 of the CrPC 1898 because the culprit gives evidence under a promise of pardon to disclose all details against other co accused.
Articles 16 and 129, illustration(b) of QSO ,
Paradoxical or not?
Article 16.
* An accomplice shall be a competent witness. (Article 16 QSO)
* “An accomplice shall be a competent witness against an accused person, except
* In the case of an offence punishable with hadd;
* a conviction is not illegal merely pivoting uncorroborated testimony of an accomplice.”
* No credibility. illustration(b) of Article 129.
“An accomplice is unworthy of credit, unless he is corroborated in material particulars.”
*Statement of the accomplice is not exculpatory.
A.16 QSO and A,129,Not Paradoxical.
Art.16 QSOis germane to the rule of law whilst the Art.129 ills(b) is the rule of prudence. Therefore, both are supplementary to each other.
Harmonize the two provisions.
“In such a case of apparent conflict, the court is required to place such construction which may harmonize the two provisions.”
Rule of construction, an accomplice is a competent witness and conviction may lawfully rest upon the uncorroborated testimony.
The court is entitled to presume that no reliance can be placed on the evidence of an accomplice, unless that evidence is corroborated in material particulars.
*Reason behind the corroboration is that the accomplice is likely to swear falsely in order to shift guilt to others.
Test (AIR 1957 SC 673), Rule of a double-test was introduced. As per this rule, the accomplice’s evidence must show that he or she is a reliable witness and his or her evidence must receive sufficient corroboration.
Tendering pardon to an accomplice. (Section 337 CrPc) provides procedure
1-pardon is tendered to an accomplice by the prosecution .
2-Producing before the magistrate during investigation (pre-trial), inquiry or trial stage.
3-In cases of hurt or Qatl, the victim or heirs of victim shall give consent for tendering such pardon by the Prosecution.
4-The Magistrate records his statement. At this eve the accused is required to give full and true disclosure of all the circumstances of the incident within his knowledge so as to reach the real culprits of the offence.
5-If An accomplice is in custody, he shall remain in custody till finalization of the trial. Where the accomplice is on bail he shall continue to be on bail.
Powers of Appellate Courts.
(Section 338 CrPc)
The High Court or Court of Sessions at any time before judgment passed during trial may tender pardon to an accomplice or order the prosecution to tender pardon to an accomplice on the same conditions as provided in section 337 of the Code read with section 16 and 129 of the Qanoon-e-Shahadat Order, 1984.
CONCLUSION. An accomplice is a competent witness in tazir offences, but cannot be granted pardon in hadd offences.
