PLD 1987 Federal Shariat Court 43

Liaqat Bahadur and others – Appellants versus The State – Respondent

Facts
This is an appeal of an order passed by the Additional Sessions Judge regarding the
conviction of the appellants. The facts of this case are that Abdul Qayum, a shopkeeper,
found one evening that the lock to his shop had been broken and certain items were missing.
During the investigation conducted by the police, the Mir Zaman, Liaqat Bahadur, and Fayaz
were arrested on 4-4-1981. They jointly pointed out to the police that a box of shotgun
cartridges, which was alleged to have been stolen, could be found at the house of Sher Zaman
– the same was recovered from the house of Sher Zaman and he was arrested on 7-4-1981.
The arrested persons were produced before the Magistrate to record their confession on 11-4-
1981. During investigation, the police found a few items from those that were alleged to be
missing within the store; moreover, it was found that the register on which the stock of the
shop was recorded was never taken into possession by the police even though it was in the
shop. Confession was recorded by the magistrate; however, later, all the accused denied the
allegations made and retracted the confession, stating that their confession had been obtained
through torture. They stated they were falsely implicated.
Relevant points of law regarding confession
The confessor must inculpate himself to the same extent as he does the other accused
Confession must either admit in terms of the offence or at any rate substantially all the facts
which constitute the offence. When the person making the confession levies puts blame onto
another accused, the confessor must implicate himself and take on the blame for the alleged
offence to the same extent as the other accused. Otherwise, if the confessor is shedding all the
blame, saying that he played no part in the offence, and instead states that the other accused
had all the blame, then there is no satisfactory guarantee that the confession is true. The Court
stated that “The statement which inculpates (puts blame) the maker more than or equally with
others alone can afford any satisfactory guarantee of truth. When the maker of the statement
exonerates himself or throws the principle blame on others is to be excluded from
consideration as such statements are robbed of all evidentiary value against the other accused
and casts a doubt on its veracity as against the maker himself.”
Confession must be corroborated and not be retracted
In this case, the three accused who made the confession did not give an identical account of
the crime, i.e. the confession was not corroborated. The Court stated that there is abundant
warning in judicial history that too much reliance should not be placed on uncorroborated and
retracted confessions.
Determining whether confession was voluntary and true
Even though all judicial confessions bear the stamp of approval of the Magistrate who
follows the basic formalities in recording the confession, this does not necessarily mean that
the confession is voluntary and true. Following formalities will not furnish a true and
conclusive picture of the actual reality and will not show whether the confession was made
without any external pressure or coercion. “Therefore, when the mind of a Judge is engaged
in assessing the value of a confession he has to go much deeper than the record of the
confession. The entire setup of the prosecution case and the surrounding circumstances, and
the intrinsic value of the confession itself will have to be taken into account to find out if it
was voluntary and true.” The court cited the LHC in Said Begum v. The State PLD 1958 Lah.
559 which provided that it is a judge’s duty to extract the confession with great care and
caution and not mechanically. The following questions are to be put to the confessor: (1) For
how long have you been with the police? (2) Has any pressure been brought to bear upon you
to make a confession? (3) Have you been threatened to make a confession? (4) Has any
inducement been given to you? (5) Have you been told that you will be made an approver?
(6) Why are you making this confession?
A retracted confession is a source of anxiety to those who have to see that justice is properly
administered. In this case, the Magistrate admitted that he had not asked the aforementioned
questions and had only fulfilled the formalities mechanically without going into the depth of
the matter. Another factor in this case was that the accused were not immediately produced
before the magistrate and 7 days had passed before they were produced, leading to further
anxiety with regards to the voluntariness of the confession.
The appeal was allowed by the FSC.