Qanun-e- Shahdat Order 1984
CONFESSION
BEFORE POLICE OFFICER
1- INTRODUCTION-
According to Art.38 a confession made to a police officer shall not be
proved against a person accused of any offence. The rule embodied in
the article is for the reason that a police officer shall not be
encouraged to extort confession for showing efficiency by securing
convictions. (PLD 2003 SC 704)
2- Concept of extra judicial confession in Islam
3- BACKGROUND
The rules contained in Articles 38, 39, 40(Section 25, 26, 27 of the
Evidence Act1872) of the Qanun-e-Shahadat Order, 1984 were not
originally treated in British India as strictly speaking rules of
evidence, but rather as a rules governing the action of the police
officers, and as a matter of criminal procedure. In the year 1817 the
legislature passed the REGULATION-XX of that year, repealing the
older rule. The legislature had in view the malpractices of police
officers in extorting confessions from accused persons in order to gain
credit by securing convictions.
4- RELEVANT PROVISION
i. Article 38, 39, 40 of the Qanun-e-Shahadat Order, 1984
ii. Section 25, 26, 27 of the Evidence Act, 1872
5- MEANINGS OF CONFESSION
Black’s Law Dictionary
Confession is a voluntary statement made by a person charged with
the commission of crime or misdemeanor, communicated to another
person, wherein he acknowledges himself to be guilty of the offence
charged, and discloses the circumstances of the act or the share and
participation which he had in it.
6- WHO IS A POLICE OFFICER
The expression police officer includes and cover a person who is
authorised to exercise power of police officer and not necessarily mean
officer empowered to investigate.
7- GENERAL RULE
Every statement by an accused person to police is not a confession
and not ipso facto excluded from evidence. Under Art.38 “No
confession made to a police officer shall be proved as against a
person accused of any offence ”
8- STATEMENT TO POLICE MUST AMOUNT TO CONFESSION
A confession under Art. 38 include inculpatory statements which
suggest guilt of person making it.
9- CONFESSION IN POLICE CUSTODY ( Article-39)
a. Interpretation of Article-39
i. Confession made by a person
ii. In the custody of police
iii. Not in the immediate presence of the Magistrate
Inadmissible in evidence
b. Explanation of Terms
i. Confession by person
a confession only is hit by this Art. Where a person is not being
prosecuted against for an offence, his statement is not hit by
this provision
ii. Custody of police
Any statement made by an accused person while in the police
custody is inadmissible in evidence and the same cannot be
read in evidence and in the absence of any strong corroborative
piece of evidence it is of no legal value.
The word “custody” in Art. 39 does not mean formal custody
but includes such affairs in which accused can be said to have
been under some restriction. It does not include judicial
custody. (1992 SCMR 1983 )
It is to be noted that where a prisoner in police custody is
brought before a Magistrate for the purpose of having his
confession recorded, he does not ceased to be in the custody of
the police merely because the police officer is in the next-room.
(AIR 1931 Lah. 408)
iii. Immediate presence of Magistrate
If a confession is made to magistrate while accused is in police
custody such confession is admissible.
AIR 1930 Lah. 534
Art-39 (section-26) does not make the admissibility of a
confession dependent upon the knowledge of the accused as to
the identity of the Magistrate, the main consideration being the
presence of the Magistrate and making the confession in his
presence
10- EXCEPTIONS TO THE GENERAL RULE.
Article- 40 of the Qanun-e-Shahadat Order 1984 lays down an
exception to the general rule “ that confession before police officer or
in custody of the police is not admissible in evidence.”
11- SCOPE AND APPLICABILITY OF ARTICLE-40
In order to make any information under Art. 40 admissible,
prosecution has to establish that and evidence discovered during
investigation of case as a consequence thereof.
a. Discovery of Fact
A fact may be said to be discovered when knowledge of existence of
fact was for the first time derived from information furnished by
accused. (PLD 1964 SC 167)
b. Information lead to discovery
Information so deposed must connect the accused with crime or
relate to same relevant fact.
Statement is admissible against maker only. Recovery would be
corroborative evidence against the accused.
12- BASIS OF ARTICLE-40
Article- 40 is based on the view that if a fact is actually discovered in
consequences of the information given, some guarantee is afforded
thereby that the information was true, and accordingly can be safely
allowed to be given in evidence.
13- REQUIREMENTS OF ARITICLE-40
i. There must be a deposition of fact
ii. The fact must be discovered on deposition.
iii. The fact must be discovered in consequences of the
information.
iv. The accused person must give the information.
v. The accused person must be in the custody of the police.
vi. The information must lead to the discovery
vii. That portion of the information must relate to the fact
discovered
viii. Confession must be of the offence charged.
14- EXTENT OF INFORMATION ADMISSIBLE
It was held that the extent of information admissible must depend
on the exact nature of the fact discovered to which such
information is required to relate. AIR 1955 SC.104
15- TEST OF ADMISSIBILITY
The test of admissibility is that “ was the fact discovered by reason
of the information, and how much of the information was
immediate course of the fact discovered, and as such a relevant
fact”
16- DUTY OF THE COURT
It was held that the court should enjoin upon a police witness a
strictest precision while he gives a statement. He should be made
to state clearly and separately as to what each prisoner had stated
so that there can be no mistake, or misunderstanding. When the
evidence is not clear in this respect the court should ignore it.
6 ALL 509 (FB)
17- AGAINST WHOME IT IS ADMISSIBLE
Statements admissible under Article-40 (section 27 of Evidence
Act) are not admissible against persons other than the maker of
the statement.
18- EVIDENTARY VALUE
Discovery which does not satisfy conditions of Art. 40 cannot be
considered as incriminatory piece of evidence
i. No incriminating piece of evidence (NLR 1985 Cr. 62)
ii. Chain of proof (1983 DLR 170 (DB))
iii. Doubtful recoveries (1983 SCMR 1)
iv. Recovery in disregard of mandatory provisions (1979 SCMR 214)
19- CONCLUSION
