LAW OF CONFESSION & ADMISSION BY Mian Ali Haider L.L.B., L.L.M. (Cum Laude) U.K.

INTRODUCTION CONFESSION EVIDENCE ADMISSION EVIDENCE Law dealing with both Doctrines Article 31-45 QSO Cross Reference 46(1), 162, 164, 364

ADMISSION A voluntary acknowledgement made by a party of the existence of truth of certain facts which are in consistent with the claims in action Article 30 expounds two modes for admission and complete layout By virtue of oral statement By virtue of documentary statement Classification of admission Formal Informal Vicarious

ADMISSION It is immaterial to whom the admission is made, but there is test in QSO for a statement to be treated as Admission Statements by parties to proceeding 31(1) Statements by agents of parties 31(1) Litigation in representative character 31(2) Pecuniary or proprietary interest in suit 31(3) a From person interest is derived 31(3) b

ADMISSION Value of admission as proof If admission is made against his own interest shall be presumed to be correct unless contrary. Admission by dead person 46 They are not conclusive proof in nature, but are relevant and also if made clearly and unequivocally is considered to be the best evidence.

CONFESSION EVIDENCE Confession must either admit in terms of offence or any rate substantially all the facts which constitutes the offence. Mens Rea Actus Reas Essential Requirements Must implicate himself substantially As the other What if he exonerates himself?

CONFESSION EVIDENCE Where the maker completely exonerates himself and throws the burden on others Such statements has to be excluded Such statements were robbed of all evidentiary value Against other accused Cast a doubt on the veracity of the maker Statement containing self- exculpatory matter which, if true, would negative offence confessed, is not confession

CONFESSION BEFORE POLICE Art. 38 envisages that no confession made to a police officer shall be proved against an accused Art. 39 elaborates no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against person. Art. 40 “contains the exception” When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

CONFESSION BEFORE POLICE Art. 40 exception to the extent of recovery or any other material fact. Recovery witness u/s 161 Role of 162 It appears that Art. 38 and 162 in some circumstances stand together Sec 162 is confined to the statements made to a police officers in course of an investigation Art. 38 covers confession made to a police officer before any investigation has begun. Art. 40 exception or proviso to Art. 39 which includes any statement made by a person whilst in custody of the police & appears to apply to such statement to whomsoever made e.g. fellow prisoners, doctors etc

Person Accused Of Any Offence, In The Custody Of A Police-officer Word custody for the purposes of Art. 40 does not necessarily mean Detention or Confinement Submission to custody by word or action under sec 46(1) could amount to custody Police Custody Also does not necessarily means formal arrest which also include police surveillance and restrictions on the moment of the person concerned by the police In the absence to the contrary he is not claims to be at liberty.

CONFESSION MADE UNDER THREAT

JUDICIAL CONFESSIONS Recorded under Section 164 read with Section 364 Cr.P.C. and Chapter 13 of the High Court Rules and Order V. III, and Article 91 of 1984 Order When recording judicial confession two issue arises to check the credibility of the statement  'voluntariness'; or  'unfairness', All judicial confessions bears the stamps of recording magistrate, so the responsibility leans on them.

'Voluntariness’, 'Unfairness', Any fear of prejudice;  Hope of advantage; or  Oppression. It has been defined as 'the exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc., or the imposition of unreasonable or unjust burdens‘ Intrinsic value of the confession to evaluate the voluntariness and unfairness

SOLEMN DUTY UPON THE MEGISTRATES Guide lines with respect to questions regarding confession. For how long have you been with the police? Has any pressure been brought to bear upon you to make a confession? Have you been threatened to make a confession? Has any inducement been given to you? Have you been told that you will be made an approver? Why are you making this confession?

SOLEMN DUTY UPON THE MEGISTRATES These are merely directive in nature Sole object and dominant purpose behind all these instructions issue to them is that; They must always real and earnest endaviour to ensure that the confession of the accused are recorded by them are free and voluntary And are not caused by any inducement threat or promise Avoid Slightest tinge or taint Each case has to be decided by on its own merits in the light of law.

CONFESSION IS RETRACTED AT TRIAL Accused denying having confessed their guilt before any magistrate while giving their statements before committing magistrate. But while on trial in sessions court stating same having been obtained forcibly by torture accused stand not only inconsistent but also not supported by any evidence Could not be struck down as inadmissible

EXTRA – JUDICIAL CONFESSIONA one made before a person: Other than Magistrate, its evidentiary value One weak piece of evidence cannot corroborate another similar evidence Extra judicial confession alone without any corroboration was not sufficient to maintain any conviction Where no fact is discovered with reference to art. 40 cannot be relied upon as evidence

DELAYED CONFESSION Khan Muhammed & Others Vs. The State 1999 SCMR 1818 “that delay in recording of confession by itself cannot render the confession nugatory if otherwise it is proved on record that the same was made voluntary”

Reading Material Pakala N. Swami - AIR 1939 PC 47; Liaqat Bahadur – PLD 1987 FSC 43, 49; A Nagesia – AIR 1966 SC 119, 123 PLD 2004 Q 118; AIR 1972 SC 3; Queen v Bahu Lal – ILR 6 All. 509; Naqeebullah – PLD 1978 Sc 21, 33; Dhani Bakhsh – PLD 1975 SC 187; Naqeebulla – PLD 1978 SC 21, 32; Ahmed Hassan – 2001 SCMR 505; Zia – ur – Rehman 2001 SCMR 1405 ALL OTHER ARTICLES AND BOOKS GIVEN TO YOU IN FOLDER