15/12/2025
Article 91 of the Qanoon-e-Shahadat Order, 1984 (‘Order of 1984’) provides that whenever any document is produced before any court, inter alia, given by a witness in a judicial proceedings or before any officer authorized by law to take such evidence or to be a statement of confession by any person or an accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, the court shall presume that the document is genuine and that any such statement as to the circumstances under which it was taken purporting to be made by the person signing it are true and that such evidence, statement or confession was duly taken. This presumption is essentially qualified by the expression 'taken in accordance with law'. It is noted that under Article 38 of the Order of 1984 no statement which is made to or before a police officer is admissible even if it is made in the immediate presence of a Magistrate. Likewise, a confession of an accused while in custody is also inadmissible except when it is made in the immediate presence of a Magistrate or if there is a disclosure of fact as contemplated under Article 40 of the Order of 1984. Section 164 of the Cr. P.C. sets out the mandatory conditions relating to recording a judicial confession in the course of investigation conducted under chapter XIV ibid. Section 364 prescribes the manner in which the judicial confession is to be recorded under section 164 ibid. The safeguards are provided under Chapter 13 of the High Court Rules and Orders (Vol.III) (‘Rules and Orders’). A statement will be considered as having taken in accordance with law when the mandatory conditions and manner of recording prescribed under the law have been met and the minimum safeguards required to be observed have been ensured. It is noted that the safeguards set out under the Rules and Orders are not exhaustive and it would be an onerous task of a court to satisfy itself having regard to the facts and circumstances of the case, that the confession is genuinely voluntary and true. The conditions, manner of recording of a confession and the safeguards are, therefore, discussed as follows;
The mandatory conditions have been prescribed under section 164 of Cr.P.C;
(i) The conditions under section 164 of Cr.P.C have been prescribed in relation to a 'statement' as well as a 'confession'.
(ii) The timing for recording a judicial confession under section 164 has been specified therein as in the course of an investigation which is being conducted under chapter XIV of the Cr. P.C. or at any time afterwards before the commencement of the inquiry or trial.
(iii) The statement or confession can be recorded under section 164 only by a competent authority i.e any Magistrate of the 1st Class and any Magistrate of the 2nd Class specially empowered in this behalf by the provincial government to record statements or confessions as the case may be but a police officer is not competent to record any statement or confession even if the latter is empowered to exercise the powers of a Magistrate.
(iv) A statement, other than a confession may be recorded by a competent Magistrate in the presence of the accused and that the latter shall be given an opportunity of cross-examination of the witnesses who are making the statement. A statement shall be recorded in such manner as in the opinion of the Magistrate is best fitted for the circumstances of the case while the confessions have to be recorded and signed in the manner provided under section 364 of the Cr. P.C. After recording of a confession, it has to be forwarded to the Magistrate by whom the case is to be inquired into or tried.
(v) A Magistrate before recording any confession shall explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him.
(vi) No Magistrate shall record any confession unless upon questioning the person making it. The latter has reason to believe that it was made voluntarily.
(vii) When a Magistrate has reasons to believe that the statement was made voluntarily then he or she is required to make a memorandum at the foot of such record to the effect as has explicitly been given in sub section 3 of section 164 of the Cr.P.C.
(viii) It is not necessary that the Magistrate recording a confession under section 164 should be a Magistrate having jurisdiction in the case.
The manner of recording a judicial confession under section164 has been prescribed under section 364 of the Cr. P.C. as follows:
(i) After the accused has been examined by any Magistrate or by any court other than a High Court then the whole of such examination including every question put to the accused and every answer given by him shall be recorded in full.
(ii) The examination including every question and every answer given by an accused must be recorded in the language in which the latter has been examined or if that is not practicable in the language of the court or in English.
(iii) The record i.e. the whole of examination and every question put to him as well as every answer given by the accused shall be shown to have been read over to him or her or if the latter does not understand the language in which it is written then it shall be interpreted to the accused in a language which he understands and he shall be at liberty to explain or add to his answer. When the whole is made conformable to what an accused has declared to be true then the record shall be signed by the accused and the Magistrate or the Judge of such court and such Magistrate or Judge shall certify under his or her own hand that the examination was taken in his/her presence and that the record contains a full and true account of the statement made by the accused.
(iv) Cases in which the examination of the accused is not recorded by the Magistrate or Judge himself, then such a Magistrate or Judge shall be bound as the examination proceeds to make a memorandum thereof in the language of the court or in English, if acquainted with such language and such memorandum shall be written and signed by the Magistrate or Judge with his own hand and shall be annexed with the record.
(v) If the Magistrate or Judge is unable to make the abovementioned memorandum then the latter shall record the reasons of such inability.
The safeguards required to be observed while recording a confession have been set out in Rules and Orders as follows:
(i) Unless there are exceptional reasons to the contrary, confessions are required to be made in open court and during the court hours in the absence of police officers investigating the case.
(ii) An accused person who has made a confession under section 164 before a Magistrate can only be sent to the judicial lockup and cannot be handed over to the police after the confession has been recorded.
(iii) If the police requires an accused person for investigation at some subsequent stage after confession has been recorded, a written application should be made giving reasons in detail why the accused is required.
(iv) If an accused has declined to make a confession or has made a statement which is unsatisfactory from the point of view of the prosecution then he shall not be remanded to police custody.
(v) When an accused after recording his confessional statement is remanded to the lockup then the Magistrate shall record an order for him to be kept separate from other prisoners as far as may be practicable.
(vi) Before recording the confession, the Magistrate must arrange, so far as is compatible with the safety and that of the staff and with the safe custody of accused, that the latter is left for some time i.e. for half an hour, out of the hearing of police officers or other persons likely to influence him/her.
(vii) The Magistrate who records the confession under section 164 of Cr.P.C., should not hand over the document after completion to the police officer In charge of the accused, but should forward it direct to the Magistrate by whom the case is to be enquired into or tried.
(viii) However, there is no prohibition for a Magistrate who has recorded a statement to allow the concerned police officials from obtaining a copy before the recorded confession has been forwarded to the trial Magistrate. When permission is granted the police officer, may be given the copy in the manner set out in clause (c) of rule 13 of the Rules and Orders.
The safeguards set out in the Rules and Orders are not exhaustive. We have been informed that the High Court of Sindh has not prescribed safeguards and that it follows the principles and law developed in the precedents of this Court in the light of the Rules and Orders. However, it is noted that the object of the safeguards is to enable and facilitate a court to ensure that enabling conditions and circumstances are created so that an accused may exercise the option to genuinely confess voluntarily and out of free will. As already noted, these safeguards are not exhaustive and the competent Magistrate may also adopt such other safeguards so as to ensure that the circumstances are conducive and appropriate for an accused to genuinely confess voluntarily and out of free will. The precedent law has also enunciated the principles and safeguards required to be observed relating to a confession.
It has been the consistent view of this Court that a judicial confession can be made the basis for a conviction when it is found to be true, convincing and made voluntarily without any duress, coercion, inducement or any other influence of whatever nature. Even a retracted confession recorded in accordance with law would be presumed to be genuine as has been contemplated under Article 91 of the Order of 19846. Retraction of a judicial confession is not a sufficient ground for discarding it if it is otherwise found to be reliable. Mere retraction would not diminish its evidentiary value if it has been corroborated by other evidence. There is no absolute rule that retracted judicial confessions cannot be acted upon unless the same are corroborated. However, the rule of prudence requires that, by way of caution, corroboration must be sought. It is not essential that each and every circumstance mentioned in the confessional statement regarding complicity must be separately and independently corroborated nor that the corroboration must come from facts and circumstances discovered after the confession was made. The judicial confession, even when retracted, does not lose its evidentiary value if it is independently corroborated and the court is satisfied that the narration is true and has been made voluntarily. The fundamental principle is that the evidentiary value of the statement rests on the voluntariness of the confession. There must not be any sign of fear inculcated by the investigating agency in the mind of the accused and any such fear or apprehension must have been removed by assuring the accused that, even if he confesses his guilt, he shall not be handed over to the police authorities. It is the court’s responsibility to take all precautionary measures to ensure that the confession is made voluntarily and without any influence of any kind. In case the confession is a result of inducement, threat or promise or influence of any other kind, whether direct or indirect, given by a person in authority, then it shall not be treated as having been given voluntarily. A confession recorded may be true but it would not be admissible if it has not been given voluntarily. Whether or not a statement is true and has been made voluntarily is a question of fact and it is to be determined keeping in view the attending circumstances of each case. Delay in recording of a judicial confessional statement may also have an adverse effect on the mind of an accused and it could be one of the factors which a court may take into consideration while assessing whether it was a voluntary confession or made under some influence. However, delay in recording the judicial confession by itself is not fatal. The longer an accused remains in the custody of the police before making a judicial confession the more care and scrutiny is required to be exercised by a court, because such delay in facts and circumstances of a case may prejudice its evidentiary value. Recording of a judicial confession with promptitude reflects the probability of its voluntariness though it may be retracted. Though delay in recording a judicial confession by itself is not sufficient to affect its validity but no hard and fast rule can be laid down regarding its timing. A voluntary and true recorded confession, though, does no require corroboration and it may also be sufficient for conviction but, as a rule of procedure and prudence, the court requires to seek corroboration in material particulars. A court has to exercise extra caution while recording a confessional statement in case of vulnerable classes such as juveniles. It is desirable, in their case, to provide them counseling/consultation, inter alia, of a natural guardian. A confessional statement has to be read as a whole and its inculpatory parts cannot be relied upon while discarding the exculpatory portions. The confessional statement must be accepted and rejected as a whole. The handcuffs must have been removed before an accused has been brought before a Magistrate for recording his confessional statement. The failure to mention this fact by a Magistrate in his report or his deposition would raise doubts regarding the reliability of a confessional statement because its having been made voluntarily would become questionable. A lapse on the part of a Magistrate in recording the confessional statement may not always be treated as fatal to the evidentiary value of a confession, provided the court is satisfied that the lapse had in no way adversely affected the voluntariness and truthfulness of the confession. The prosecution has to prove its case against an accused beyond a reasonable doubt irrespective of any plea raised by an accused in his defense and the prosecution cannot fall back on the plea of an accused to prove his or her case. If the prosecution fails in proving its case the accused has to be acquitted. The stage to consider the plea of the accused precedes proving his guilt beyond a reasonable doubt. When the prosecution’s story has been rejected by the court and the confessional statement is the only material on which an accused has to be convicted then the same has to be either accepted as a whole or rejected as a whole. It is not open for a court to accept only part of it and reject the rest. Article 37 of the Order of 1984 explicitly provides that the confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person and which proceeds from a person in authority and is sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he/she would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. The confession, therefore, whether judicial or extra judicial, must be demonstrably voluntary, made out of absolute free will and without influence of any kind, whether a threat, inducement, promise or even hope etc. The fundamental principle regarding the admissibility and assessment of a confession, judicial or extra judicial, is that it ought to be genuinely voluntary and must have been made out of one's free will. It must have been given freely and without any coercion or influence in any form. The court must be mindful of the fact that, ordinarily, no person would confess to the commission of a crime because of its consequences and the possibility that the profound effects of being in custody and exposed to the physical and psychological distress and trauma associated with investigation and custody a person's rational thinking generally gets impaired. It cannot be ruled out that an innocent person may confess so as to free himself from the extremely distressful conditions. However, in exceptional and rare cases, it cannot be ruled out that an accused may voluntarily confess his or guilt because of genuine remorse or regret. It becomes an even more onerous task of the court when the circumstances are such that there is a likelihood of the accused being exposed to the influence of a person in authority, such as being in the custody of a police officer and confined in the lock up of a police station.
JAIL PETITION NO.51 OF 2023
SEETA RAM VS THE STATE
2025 SCMR 2028
