Confession

  Confession defines:

As earlier stated that in civil cases admissions were made in pleadings or during proceedings but in criminal it can be made earlier but it is called confession rather than admission.

A confession is statements which either admits in terms the offence or at any rate substantially all the facts which constitute the offence. [(1944)2 Cal.312.]

Black’s Law dictionary defines it as:

In criminal law; A voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act or the share and participation which he had in it.

Confession in Qanoon-e-shahadat1984:

Confession is not clearly defines in QSO but the gist of related Articles of QSO from 37- 45 is that:

“Confession is a statement made by a guilty person voluntarily and without any undue influence in front of a person who have authority to take it. It should not be includes any type of compromise, threats, any promises, or any type of benefit given in exchange.”

What kinds of confessions are acceptable?

        I.            A confession is acceptable when it is made

     II.            Voluntarily

   III.            In front of authorized person

  IV.            Not in police custody

     V.            Without any promise of benefit in exchange of it

  VI.            Without the promise of secrecy

VII.            Person giving such statement is of clear mind about what he is going to do

VIII.            Person taking it must be clear on the person giving such statement pros and cons of statement

Which persons can make Confession under Qanoon-e-shahadat Order?

 A person who is guilty can make confession whether he has co-accused or not.

What kinds of confessional statements can be taken?

It may have following types:

        I.            Judicial confession

     II.            Extra judicial confession

I.            Judicial confession

Judicial confession is self exculpatory cannot be used against other person. A judicial confession is made before Magistrate and is recorded by him.

Confession recorded in compliance with provisions of S.164 & S. 364, Cr.P.C. becomes judicial confession to which law attaches great sanctity being free from duress and undue influence.[1990 MLD 195]

II.          Extra judicial confession

Extra judicial confession is one which is made by a person elsewhere than before a Magistrate. It follows the procedure as laid above.

Extra judicial confession is a weak type of evidence which cannot be made basis for conviction [1968 SCMR 685]

Evidence of extra judicial confession alone without any corroboration is not sufficient to maintain any conviction thereon [2000SCMR 528]

Reliance on recoveries or on extra judicial confession was not sustainable and the accused was entitled to acquittal in circumstances. [2000 SCMR 528]

Principles relating to recording of confession:

There are some formalities to be followed by authoritative person to record it (generally Magistrate)

a)      It should be recorded at earlier stage.

b)      The first act when accused agree to record confessional statement handcuff should be removed at first.

c)      The police officials present inside the Court room are to be sent out from the Court room

d)      The Magistrate has to explain to the accused that he is appearing before a Magistrate.

e)      It is known by the accused that statement may be used against him

f)       It has to be asked to accused whether he is induced by police or not for such statement

g)      The accused to give sufficient time to ponder over the matter

h)     The accused may be asked it again that whether he really willing to give such statement

i)        The accused should be remanded to judicial custody

j)        Statement should not be recorded on oath.

Confession recorded on oath irrelevant and inadmissible [PLD 1966 S.C.420]

k)      After recording of confessional statement of the accused it is required to record some prosecution evidence in corroboration of the confession.

When the accused had refused to plead guilty at the time of framing the charge and he wants to make a confessional statement but some corroborative prosecution evidence must be recorded [1995 P.Cr. L. J. 159]

Retracted confession:

A retracted confession is admissible in evidence provided it is determined to have been made voluntarily and freely and is fully corroborated by authentic evidence as regards factum of crime and accused connection with the said crime. [1993 SCMR 1574]

Retracted confession even if found to be true cannot be sole basis for conviction unless corroborated in material particulars. [1992 SCMR 950]

Confession when admissible?

Admissibility and relevancy of a confession though basically question of law depends upon the facts of each case. Confession would be inadmissible if its making appears to the Court have been caused by nay inducement threat or promise or is made before the police officer or at the time when the accused was in the custody of the police. Police officer as provided by Art. 37,38,39 of the QSO, 1984. [2001MLD 1939]

Determination of the question of admissibility or otherwise of the confession is left solely with the Court. [2003 P. Cr. L.J 1212]

Confession must relate to the particular crime which the accused is charged and admission which is not connected with the ingredients of the offence charged would not amount to confession. Let’s have some discussion about basic ingredients of confession:

Ø  Accused:

The term accused as employed in Article 37, includes a person who becomes an accused person subsequently to the making of the confession. It is not necessary that the person making confession should have been an accused at the time when confession was made.

The expression made by accused person means that person must be accused person at the time of the confession. It does not mean a person accused in the proceeding before the Court. [(1912) 13Cri. LJ 352 (FBI)]

Ø  Voluntariness of the confession:

In the criminal cases great responsibility rests upon the Courts to determine if the confession is “voluntary and true” or is lacking within the scope of either term voluntary and true. If confession directly or indirectly is the result of inducement, threat, promise from a person in authority, it would be treated as not voluntary. Voluntary and true two different terms related with confession and each of them has its own significance. A confession which is voluntary is admissible in evidence but it’s not necessary that it is true. As against above, a confession, which is not voluntary is not admissible though it may be true. So here is the responsibility of Court comes to measure its voluntariness and truth.

Voluntariness of confession and of being true is totally distinct. Voluntariness relates to its admissibility, while its truth is looked into for the purpose of assessing its value. Therefore for proving confession it shall be both voluntary and true. [PLD 2003 S.C. 704]

Ø  Person in authority

The expression person in authority as envisaged under Article 37 has not been defined. Generally speaking person in authority is one who is engaged in apprehension, detention or prosecution of the accused or one is empowered to examine him.

How can Evaluate Confession?

        I.            We may be evaluate confession by keeping in mind following points:

     II.            Character and duration of custody

   III.            Is confessor has the liberty to take advise form his lawyer and relatives.

  IV.            Nature and quantum of proof which is available against him

     V.            Whether confession was consisting with the evidence available at the time of confession.

                                                                                                            [2002 P.Cr.J. 1631]

Delay in confession:

Delay in recording confessional statement, per se, is no ground to discard the same unless it is proved or shown from circumstances that it was obtained by coercion, threat, or pressure etc. [2002 P.Cr.L.J. 1402]

Delay in recording of confession by itself cannot render the confession nugatory if otherwise it is proved on record to have been made voluntarily. [1999 SCMR 1818]

Confession of Accomplice or in the presence of co-accused:

The Court is to be careful in making confession as a co-accused as corroboration of an approver’s testimony. The mode and method of recording the confession of one accused in presence of the other casts serious doubt on its voluntariness which is the basic requirement of law as also for its appeal to the judicial conscience.

Confession only can be used against its maker or the co-accused but not the type of statement such accused had got recorded u/s 164 Cr.P.C. before a Magistrate during investigation by police [PLD 1990 S.C. AJ&K]s

Value of Confession in police custody

 Confession made while in police custody is not admissible [2001 P.Cr.L.J 86]

High Court Rules and Orders stated in its Volume II Chapter 13 stated that:

Statements or confession made in course of an investigation can be recorded only by a Magistrate of the 1^st class or 2^nd class who has been specially empowered by Provincial Government

Death of confessor:

In case of death of confessor about himself that he is accomplice in a crime is not a substantive evidence it will only be corroborative evidence.