Confession

Confession

Extra-judicial confession Article 37: The word “confession” has not been defined in anywhere in law. A “confession” is an admission made at any time by a person charged with a crime, stating, or suggesting the inference that he committed that crime. The value of extra-judicial confession is not very high.

A confession must either admit in terms the offence or at any rate substantially all the facts, which constitute the offence.

Extra-judicial confession is made before the private person, i.e., other than Magistrate or Police Officer. Judicial confession is made before Magistrate having jurisdiction in the case.

Confession in jail before fellow prisoner is extra-judicial confession because it is not made before Magistrate. Confession using threat, inducement, or promise is not reliable. Authority before whom confession is made must be high such as landlord and tenant, officer and subordinate, headman and cultivator etc. This is made to avoid any blackmailing or any other evil cause. This confession is not only extra-judicial but also irrelevant and not liable to use against accused.

Some time a person makes confession for temporal (secular, non-spiritual) purposes before private person. It is not acceptable at all in law. There may be threat to his family, parents, and children etc. It becomes relevant if it is made voluntarily.

Confession to police not to be proved Article 38: Police Officer is not authorized to take the statement of confession. If any accused confesses before police officer, his confession shall not be used against accused. It is not material whether accused was aware the person before he has made confession is police officer. This confession cannot be used against accused.

Also under Article 39, confession made by accused before Police Officer while custody cannot be proved against him unless it is made in the immediate presence of Magistrate. The presence of Magistrate secures the free and voluntary of the confession and the confessing person has an opportunity of making a statement uncontrolled by any fear of the police.

An English woman under arrest on a charge of murder was taken in a tonga, from the place where alleged offence was committed, to the principal town of the district. A European friend drove with her in the tonga and a mounted policeman rode in front. In the course of journey the policeman left the tonga and went to a slowly along the road for some miles without any escort. In the absence of the policeman, the accused made a communication to her friend with reference to the alleged offence. At the trial it was proposed to ask what the accused had said, on the ground that she was not then in custody, and that this Article did not apply. It was held that, notwithstanding the temporary absence of the policeman, the accused was still in custody, and the question could not be allowed while the accused was in lockup of the Magistrate under trial. Magistrate sent him at hospital for treatment. Two policemen, who waited outside on the verandah of the hospital, took him from the lockup to the dispensary. During his examination inside the dispensary by the doctor, the accused made a confession of his guilt to another patient who happened to be there within the hearing of the doctor. It was held that the confession was inadmissible, because the accused, who was in police custody upto his arrival at the hospital, remained in that custody even though the policemen were standing outside on the verandah.

Confession in consequences of discovery Article 40: If the confession of the accused is supported by the discovery of a fact it may be presumed to be true and not to have been extracted. It comes into operation only:

1.      There must be a fact discovered.

2.      The fact must have been discovered in consequence of some information received from the accused.

3.      The fact discovered must be relevant.

4.      The person from whom information is received must not only be an accused but must also be in the custody of the police.

5.      The information sought to be used in evidence must distinctly relate to the fact discovered.

If upon the information of the accused, crime weapon is discovered while he is in police custody, his confession is supposed to be true.

Where police already knows the happening of the crime, then the information provided by the accused are not called confession.

S. 164 of Code of Criminal Procedure applies on this type of confession. It must be recorded before Magistrate. Magistrate shall explain to person that he is not bound to confess and his confession may go against him. His confession must be voluntary. Magistrate certifies the confession as provided in this section and puts his signature.

Confession before Imam is admissible because he is public person and not a policeman thus relevant to prove the guilt of accused. Confession before a policeman who acts as Imam is not confession at all because law categorically prohibits it.

Philosophy of punishment: Punishment is not taken as revenge. It has philosophy behind it. There are four major points, which supports it. They are as follows:

1.      Crime must be punished, as it is evil as against public, which should not be left without tracing.

2.      It is deterrence (restriction, hindrance, control, limitation) to public as public remains away in doing such things result of which is not desirable. 

3.      It is deterrence to offender himself, as he should not commit such offence again to prevent himself from punishment.

4.      Offender is put to jail as jail prevents offender himself and others to suffer from offences.

Confession after removal of danger Article 41: Where accused makes confession voluntarily after the removal of impression caused by inducement, threat, or promise are relevant and used in proceedings. Where confession is made in Panchayat (OÖB‡Ä‚), it is held inadmissible.

Relevant confession under certain circumstances Article 42: Where accused is not bound to confess and confesses voluntarily is relevant. A relevant confession does not become irrelevant because it was made:

1.      Under a promise of secrecy.

2.      In consequence of a deception practiced on the accused.

3.      When the accused was drunk.

4.      In answer to questions which the accused need not have answered.

5.      In consequence of the accused not receiving a warning that he was not bound to make it and that it might be used against him.

6.      After removal of inducement.

7.      After removal of threat.

8.      Before lower rank.

9.      Before private person.

10.  Before Police Officer where is recovery.

11.  After withdrawal of promise.

Statements made by a person in sleep are not receivable in evidence. But a statement made by an accused when he is drunk is receivable in evidence. If a Police Officer gives an accused liqueur in the hope of his saying something and he makes any statement, that statement is not rendered inadmissible in evidence. In consequences of question and answering, statement of accused is considered true. Where accused is not bound to confess, his confession renders him liable against his guilt. It is notable that above provisions are not applicable in the cases of Hudood.

Consequences of confession are only for confessor Article 43: Where more than one persons commit a crime and one of them makes confession in a trial, it shall be considered only against the person who makes confession.

Joinders of the same crime are not subject of the confession, which is made from one of them. However such confession is used as circumstantial evidence against the rest of offenders.

Illustrations: A and B are jointly tried for the murder of C. It is proved that A said: “B and I murdered C”. The court may consider the effect of this confession as against B.

A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said: “A and I murdered C”.

This statement may not be taken into consideration by the court against A, as B is not being jointly tried.

In these circumstances, confession of one accused and circumstantial evidence must be corroborated against the joinder of the crime.

Applicability: Before a statement by one of the accused persons can be taken into consideration against the other accused, following conditions must be satisfied:

1.      The statement that is sought to be used, against the co-accused must be a statement that amounts to a confession.

2.      The confessing accused must be tried jointly with the accused against whom the confession is sought to be used.

3.      The confessing accused and the accused against whom the confession is sought to be used must be tried for the same offence, or for attempt, or abetment thereof.

4.      The confession must implicate the maker substantially to the same extent as it implicates the accused against whom it is to be used.

5.      The confession must be duly proved.

Liability of cross-examination Article 44: All accuseds are liable to cross-examination. According to the Constitution of the Islamic Republic of Pakistan “no person when accused of an offence, shall be compelled to be a witness against himself.”