JUDICIAL CONFESSION :     EXTRA-JUDICIAL CONFESSION:  CASES WHEN CONFESSION IS INADMISSIBLE IN EVIDENCE:  SAFEGUARD REGARDING CONFESSION:

OPENING NOTE:

“No person shall, when accused of an offence, be compelled to be a witness against himself.”

In the words of Lord Summer in the case of Ibrahim vs. R (1914):
“It has long been established... that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.”

Q.S.O 1984 provides safeguards regarding the confession of the accused against him to protect the innocent from putting themselves in peril.

---

CONCERNED PROVISIONS AND LAW:

• Chapter 13, Vol II of Lahore High Court Rules

• Articles 37-43 of Q.S.O 1984

• Section 164 & 364 of Cr.P.C 1898

• Constitutional Protection under Article 13(b)

---

WHAT IS MEANT BY CONFESSION?

According to Stephen:
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.”

According to Wigmore:
“A confession is an acknowledgment in express words by the accused in criminal cases of the truth of the guilty facts charged or some essential part of it.”

---

CLASSES OF CONFESSION:

Confessions may be classified into two categories:

i. Judicial Confession
ii. Extra-judicial Confession

1. JUDICIAL CONFESSION:

A statement or confession made in the course of any investigation and recorded by a magistrate under Section 164 read with Section 364 of Cr.P.C is described as a Judicial Confession.

a) Chapter 13 of the High Court Rules and Orders (Vol III) does two things:
i. States the law on the subject of confession
ii. Provides instructions on how Magistrates should proceed with the recording of confessions and handle the accused after they have made the confession

b) Object of Judicial Confession:
The sole object of these instructions is to ensure that “Magistrates must always make a real and earnest endeavor to ensure that the confessions of the accused recorded by the Magistrate are free and voluntary, and not caused by any inducement, threat, or promise.”

c) Evidentiary Value of Judicial Confession:
The evidentiary value of a judicial confession depends on its voluntary nature and the accuracy with which it is reproduced. The safeguards provided in Section 164 are meant to ensure this.

---

2. EXTRA-JUDICIAL CONFESSION:

An extra-judicial confession is a confession made before any person other than a Magistrate. Evidence of an extra-judicial confession alone, without corroboration, is not sufficient to maintain a conviction.

Evidentiary Value of Extra-Judicial Confession:
Extra-judicial confessions are weak evidence to convict an accused unless corroborated by cogent, convincing, impartial, and material evidence. They require corroboration by independent circumstantial evidence from an unimpeachable source.

---

RETRACTED CONFESSION:

Confessions are often retracted when the accused alleges that they were not made voluntarily, or that the confession was made under duress. It becomes necessary for the court to ascertain whether the confession was voluntary.

a) Can a Retracted Confession Form the Basis of Conviction?

A retracted confession may form the basis of conviction if it is believed to be true and voluntarily made. The mere fact that a confession is retracted does not render it inadmissible in evidence. However, the court must scrutinize such confessions with care.

[PLD 1975 SC 187]
“A retracted judicial confession is seldom made the basis of conviction without being materially corroborated. Even if a confession is proved to have been voluntarily made, it must further be established that it was true.”

b) Admissibility of Retracted Confession:

The admissibility of a retracted confession depends on the circumstances of each case.

c) Corroboration of Retracted Confession:

When a confession is retracted at trial, the universally applied rule of caution is that it should not be acted upon unless corroborated in material particulars by reliable evidence.

d) Onus of Proof:

According to Articles 117 to 119, the burden of proving any particular fact lies on the person who wishes the court to believe its existence. In cases where the accused retracts a confession, it is upon the accused to prove their allegations.

e) Evidentiary Value of Retracted Confession:

• Value Against the Maker:
  If the confession was made according to the safeguards provided by Section 164, Cr.P.C., and the provisions of Articles 37-39, the retraction of the confession cannot diminish its evidentiary value.

• Value Against Co-accused:
  When a confession is retracted by an accused against co-accused, it requires a high degree of corroboration. [1989 PLD 493 SC] “Retracted confession recorded in the presence of other accused persons is not admissible in evidence.”

---

CASES WHEN CONFESSION IS INADMISSIBLE IN EVIDENCE (OR WHEN DOES CONFESSION MADE IN POLICE CUSTODY BECOME INADMISSIBLE):

Confession is inadmissible in the following circumstances:

1. When Confession is Caused by Inducement, Threat, or Promise (Article 37):
   Confession is inadmissible if it appears to the court that such confession was caused by inducement, threat, or promise.

   Except:
   Under Article 41, a confession may be relevant if made after the inducement, threat, or promise has been removed, in the opinion of the court.

2. When Confession is Made Before Police (Article 38):
   Confessions made before the police are inadmissible in evidence as per Section 162 Cr.P.C., which forbids the use of any statement made to a police officer during investigation, except for contradiction purposes.

3. When Confession is Made in Police Custody in the Absence of a Magistrate (Article 39):
   Confession made by an accused in police custody, unless made in the presence of a Magistrate, cannot be used as evidence against the accused.

4. When Magistrate Does Not Follow Section 164 and 364 of Cr.P.C Strictly:
   Statements or confessions can only be recorded by a Magistrate, and strict adherence to formalities is required as laid down by Section 164(3) and Section 364 Cr.P.C.

5. Evidentiary Value of Confessions Made in Police Custody:
   Confessions made in police custody are considered weak evidence, and unless they comply with Article 39 and are made in the presence of a Magistrate, they are inadmissible.

---

SAFEGUARD REGARDING CONFESSION:

1. Object:

The object of providing safeguards regarding the admissibility of confessions is to protect innocent persons from being wrongfully convicted.

2. Safeguard Provided by the Constitution (Article 13(b)):

“No person shall, when accused of an offence, be compelled to be a witness against himself.”

3. Safeguards Enumerated in Articles 37-42 of Q.S.O 1984:

• Confession not to be obtained by inducement, threat, or promise (Article 37)

• Confession must not be made before a police officer (Article 38)

• Confession must not be made in the custody of a police officer during the absence of a Magistrate (Article 39)

• Confession must be made in the presence of a Magistrate

• Confession must satisfy the strict requirements of Section 164 and 364 of Cr.P.C

---

CONFESSION AFFECTING PERSON MAKING IT AND OTHERS JOINTLY UNDER TRIAL FOR THE SAME OFFENCE (Article 43)

When more than one person is being tried jointly for the same offence and a confession is made by one person, it may be used as evidence:

(a) Against the person making it
(b) The court may consider it as circumstantial evidence against other persons involved.

Illustrations:

• A and B are jointly tried for the murder of C. If A says, “B and I murdered C,” this statement may be used against B.

• A is on trial for the murder of C, and there is evidence that C was murdered by A and B, and B says, “A and I murdered C.” This statement is not admissible against A, as B is not being jointly tried.

---

CONCLUSION:

The safeguard on confessions is vital for ensuring that no innocent individual is unjustly compelled to provide evidence against themselves. The law, especially through provisions such as Articles 37-42 of the Qanun-e-Shahadat Order 1984, places strict restrictions on how confessions can be made, recorded, and used in evidence. The requirement for confessions to be voluntary, made before a magistrate, and free from coercion or inducement is essential to protect the rights of the accused. The retraction of confessions and their reliance in court also requires careful scrutiny, with a strong emphasis on corroboration. The legal protections offered by the Constitution and relevant laws ensure a fair trial, preserving justice for the accused.