Confession Statement

SINDH JUDICIAL ACADEMY
CONFESSION
Session - 3
STATEMENT
Police Prosecution Cooperation

for Investigators and
Prosecutors
CONFESSION STATEMENT
CONTENTS
Aims and Objective.......................................................................................................................... 3
Session Plan .................................................................................................................................... 4
Session: Procedure of recording Confession Statement............................................................ 4
Pre & Post-assessment .................................................................................................................... 6
Confession Pre-Assessment ........................................................................................................ 6
Relevant law .................................................................................................................................. 10
Police Rules 1934:..................................................................................................................... 10
Code of Criminal Procedure, 1908 Section 164 and 364 Cr. Pc ............................................. 12
Articles 37 To 43 ff The Qanun-e-Shahadat, 1984 .................................................................. 14
Chapter V-C of The Federal Capital Criminal Court Circulars ............................................. 16
High Court Rules and Order .................................................................................................... 20
Reading Materials ......................................................................................................................... 30
Exercise 1: ................................................................................................................................. 40
Exercise 2: ................................................................................................................................. 40
Exercise 3: ................................................................................................................................. 41
Key of Exercises ............................................................................................................................ 42
Presentation (Confession Statement) ........................................................................................... 43
Page 2 of 57
Aims and Objective
Session’s Objectives
1. To make aware justice sector stakeholders about the concept of Confession

Statement
2. Procedure of placing request by Investigation Officer to magistrate for recording

confession statement of an accused
3. Role of I.O., prosecutor and magistrate while recording confession statement
4. Enhancing competence and develop practical skills of the stakeholders required for
arranging confession statement
5. Share relevant law and case law on the subject
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Session Plan
Session: Procedure of recording Confession Statement

Training Training
Time Topic Learning Outcomes Facilitator
methods aids
09.30-11.00 Procedure The participant will be
am of able to know:
recording i. relevant law about the Presentation Multimedia
(90 minutes)
confession proceeding of confession
statement statement Group M.S.Shafiq
Discussion Handouts
ii. procedure of
conducting confession Exercise &
statement mock trial Case studies
iii. guidelines provided
by the superior courts
Introduction
Get attention: Warm up activity. Tell an interesting story but it should have relevancy
with the subject.
Brain storming: Attempt to know their understanding on the topic.
Learning outcomes: Discuss the learning outcomes listed above in daily plan.
Structure of the session: Session will be divided into three sub-topics (see sub-topics
below)
Time Sub-topics Methodology Summary/Assessment Resources

Power
10 mins Describe relevant rules Presentation Questions
point
Guidelines for recording Group
10 mins Questions Handouts
confession statement discussion
10 mins Superior court verdicts Presentation Questions Handouts
Group Trainees
60 mins Exercise and mock trial Application & memo
Exercise drafts
Documents required-
Two applications for conducting confession statement, guidelines for stakeholders and
sample statement.
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Page 5 of 57
Pre & Post-assessment
Confession Pre-Assessment
Q1. What is “Confession”?
a. Statement that someone is guilty

b. Statement that I had committed offence
c. That I and A had committed offence
d. b&c
Q2. Confession is recorded by-
a. Police officer
b. Mukhtiarkar
c. Magistrate
d. District and Sessions Judge
Q5. Confession is inadmissible if it is-
a. Made before police

b. Made in police custody
c. Made under threat
d. All of above
Q6. Whether any confession is admissible if impression of threat, inducement is

removed?
a. No
b. Yes
c. May be
d. Could be
Q7. Before recording confession, Magistrate must satisfy himself about-
a. Truth of confession
b. Truth and voluntariness of confession
c. Detention of accused
d. Voluntariness of accused
Q8. If accused refuses to make confession
a. He will be remanded to judicial custody

b. Given to police for one day
c. Released on bail
Page 6 of 57
d. None of above
Q9. An accused has right to make correction in his confession, written by

Magistrate-
a. No
b. One once
c. Yes
d. All of above
Q10. Confession of co-accused is dealt under-
a. Article 40 of the Qanun-e-Shahadat, 1984

b. Article 49 of the Qanun-e-Shahadat, 1984
c. Article 47 of the Qanun-e-Shahadat, 1984
d. Article 43 of the Qanun-e-Shahadat, 1984
11. The time given by a Magistrate to an accused before recording his confession is
called-
a. Cooling time
b. Reflection time
c. Counseling time
d. Entertainment time
12. Certificate in Confession is attached per
a. Section 342 Cr.P.C.

b. Section 364 Cr.P.C.
c. Rule 25.29 of Police Rules, 1934
d. Section 164 Cr.P.C.
13. Admission of oath in confession renders it-
a. Inadmissible
b. Irregular
c. Admissible
d. b & c
14. Oath in confession cannot be administered to-
a. Interpreter
b. Typist.
c. Magistrate.
d. Accused
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15. If accused claims inducement and threat then-
a. Confession will be recorded

b. Another reflection time will be given
c). Confession will not be recorded
d). a & b
17. Prosecution has right of cross examination on confession of accused
a. No
b. Yes
c. Only with consent of Magistrate
d. Only with consent of accused
18. Confession is governed by-
a. Code of Criminal Procedure, 1898

b. Qanun-e-Shahadat, 1984
c. Police Rules, 1934
d. All of above
19. Which of the following statements does NOT hold true for the confessions made
to the Magistrate under the provisions of the Code of Criminal Procedure, 1973?
A. It is the duty of the Magistrate to exclude the presence of the police officer
from the place where the confession is recorded
B. It is obligatory for the Magistrate to warn the accused, before recording his
confession that he is not bound to make it and that if he does so, it may be used as
evidence against him
C. The accused should be sent back to police custody as soon as the
confession is recorded
D. It is necessary for the confession to be signed by the accused
20. Confession is recorded in manner provided under-
a. Section 364 CrPC

b. Article 40 of the Qanun-e-Shahadat, 1984
c. Both of above
d. None of above
21. The answers given by accused in preliminary enquiry should be recorded-
a. in full
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b. crux/gist of answer
c. may not be recorded
d. may be recorded if he insist to record
22. Article_____ to_____, of Qanun-e-Shahadat deals with confession

37 to 43
35 to 43
36 to 43
17 to 22
23. Confession on oath have_____ in law

Great importance in law
No sanctity in law
Depends upon circumstances
Is essential in law
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Relevant law
Police Rules 1934:
25.27. Confession: --- The orders of the High Court by which Magistrates are bound in respect of
the record of -statements or confessions are contained in Appendix No. 2527. All supervising and
Investigating police officers-must familiarize themselves with these instructions and conform
strictly to them in producing accused persons for the record of their statements.
25.28. Statements recorded by Magistrates’--(l) The-circumstances under which police officers.

May require a statement to be recorded by a Magistrate are as follows:
(a) The statement, made in the Course of an investigation by a witness or an accused person, .and
not amounting to a confession, may be recorded by a Magistrate under section 164, Code of
Criminal Procedure, in order that it may be available as evidence at a later stage. Such statements
may be recorded in any of the manners prescribed for recording evidence.
(b) A confession may be recorded under section 164, Criminal Procedure Code, irrespective of the
tender of-a pardon, - and of whether •it involves more persons than the individual accused making
it.
(c) In the classes of offences specified in section 337, Criminal Procedure Code, a police officer
may, at any stage of the -investigation, inquiry or trial, move a Magistrate empowered under that
section-to tender a pardon to an accused person.
(d) In cases in which a pardon cannot be tendered under section 337, Criminal Procedure Code, but
in which it is desirable to obtain the' evidence of a suspect against his accomplices, a police officer
may recommend to the District Magistrate that the Provincial Government be moved to give a
promise not to prosecute an offender, subject to his fulfilling whatever conditions might be imposed
in giving such promise. Action of this nature can only be taken before the case-has been sent for
trial.
NOTE
The original orders- on which this paragraph is based are contained in Punjab Government Circular
No. 2/117 of 27th April, 1898 as qualified by Circular No. 426 of 30th September, 1906, and were
reproduced as Appendix 25.41 (3) of Punjab Police Rules, Edition 1915.
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(2) If a professional offender is convicted-and sentenced to -imprisonment or transportation and it

appears that he belongs to a gang of offenders and is willing to do everything in his power to bring
the members of such gang to justice, or to give valuable information leading- to the discovery of
stolen property, the may apply for such prisoner to be made approver, under the provisions of
section 21 of Act (Il of 1990) or section 401, Code of. Procedure. Such application shall be made
through the District Magistrate. _(l) The Criminal - Procedure Code
25.29. Confessing accused and approvers. ---

Supplemented by the High Court instructors quoted in Appendix 25.27 prescribe a number of
precautions which are intended .to give to a Court conducting a trial the maximum assurance that a
confessing accused has not be subjected to such pressure or inducements as to invalidate this
evidence under section 24, Evidence Act. All police Officers, who exercise any authority in
connection with investigations, are required to have -a thorough understanding of these provisions.
The departmental instructions here given merely supplement and in no sense replace them.
(2) The main, requirements, in so Cat as the police are concerned, are –
(a) No police officer may offer a pardon. An accused person desirous of making statement with a
view to obtaining a pardon, shall be told that no promise whatsoever can be made, but that, if a
statement is made and verified and found to be of Sufficient importance to merit such action, the
.facts will be reported to a Magistrate, who has power to offer a pardon. No steps maybe taken in
this connection by subordinate police officers without the previous sanction in writing of a gazette
police officer.
(b) Statements, whether under -section 164 or 337, Criminal Procedure Code, shall be recorded by
the Magistrate, other than the District Magistrate, having- the highest powers; who can be reached
within reasonable time. Save for special reasons, which must be explained by the investigating
officer, such statements shall never be recorded 'by 2nd class Magistrates unless they have been
specially empowered to record such statements.
(c) The Magistrate is required to make enquiries as to the circumstances leading up to the
confession, and police officers shall invariably furnish, so far as is in their power, information
required of them in this respect.
(d) Police officers connected with the investigation Shall not be present while the confession is
being recorded.
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(e) Magistrates are required to give orders, when remanding to custody persons who have made a
confession, that they shall be kept separate from other prisoners.
(f) Approvers shall remain under. arrest until the conclusion of the trial.
(g) When more than one person-confesses or turns approver in-a case, their confessions Shall, if
possible, be recorded by different Magistrates and they Shall not be. allowed to meet one another
till their evidence has been recorded in Court.
(h) Magistrates shall be moved to record Statements of confessing persons in full detail; in political
cases and those in which professional criminals whose activities extend over a large field are
suspected, copies (in English) of approvers' statements and confessions shall be sent to the Deputy
Inspector-General? Criminal Investigation Department.
(3) It must be remembered that the prosecution of a gang ease, even without an approver, in a
section 30 Magistrate's Court, is a very lengthy and difficult task. owing to the large number Of
witnesses and the numerous linked individual cases. If, however, the prosecution relies upon an
approver, the length and difficulty of the task is at, least doubted as, in. accordance with section
337 (2A), Code of Criminal Procedure, the case has to be-committed to the Sessions or High court
Therefore, before launching a gang case under section 400 or 401, Penal Code, with an approver'
the District Magistrate and 'Superintendent of Police should first satisfy themselves that it is not
possible to secure satisfactory result by proceeding in individual cases without report to sections
400 and 401, Penal Code. if, however, it should still appear expedient to conduct a gang, they should
ascertain whether the district resources are equal to the strain of both committal proceedings and
trial in the Sessions or High Court without outside assistance. If the district resources appear to be
inadequate, the case should then be referred through the Deputy Inspector-General of the range to
the Deputy Inspector-General of Police, Criminal Investigation Department, for decision whether
the case should or should not be undertaken.
Code of Criminal Procedure, 1908 Sections 164 and 364 Cr. PC

164. Power to record statements and confessions: (1) Any Magistrate of the First Class
and any Magistrate of the Second Class specially empowered in this behalf by the
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Provincial Government may, if he is not a police officer, record any statement or confession
made to him in the course of an investigation under this Chapter or at any time afterwards
before the commencement of the inquiry or trial.
[(1-A) Any such statement may be recorded by such Magistrate in the presence of the
accused, and the accused given an opportunity of cross-examining the witness making the
statement],
(2) Such statements shall be recorded in such of the manners hereinafter prescribed for
recording evidence as is, in his opinion, best fitted for the circumstances of the case: Such
confessions shall be recorded and signed in the manner provided in Section 364, and such
statements or confessions shall then be forwarded to the Magistrate by whom the case is to
be inquired into or tried-
(3) A Magistrate shaft, before recording any such confessions 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 and no Magistrate shall record any such confession unless, upon questioning
the person making it, he has reason to believe that it was made voluntarily; and when he
records any confession, he shall make a memorandum at the foot of such record to the
following effect:--
"I have explained to (name) that he is not bound to make a confession and that, if he does
so, any confession he may make may be used as evidence against him and I believe that
this confession was voluntarily made. It was taken in my presence and hearing, and was
read over to the person making it and admitted by him to be correct, and it contains a full
and true account of the statement made by him-
(Signed) A.B. Magistrate.
Explanation: It is not necessary that the Magistrate receiving and recording a confession
or statement should be a Magistrate having Jurisdiction in the case.
364. Examination how recorded: (1) Whenever the accused is examined, by any
Magistrate or by any Court other than a High Court, the whole of such examination
including every question put to him and every answer given by him, shall be recorded in
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full, in the language in which he is examined, or, if that is not practicable, in the language
of the Court or in English; and such record shall be shown or read, to him, or if he does not
understand the language in which it is written shall be interpreted to him in language which
he understands, and he shaft be at liberty to explain or add to his answers.
(2) When the whole is made conformable to what he declares is the truth, the record shall
be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate
or Judge shall certify under his own hand that the examination was taken in his presence
and hearing and that the record contains a full and true account of the statement made by
the accused.
(3) In cases in which the examination of the accused is not recorded by the Magistrate or
Judge himself, he shall be bound, as the examination proceeds, to make a memorandum
thereof in the language of the Court, or in English, if he is sufficiently acquainted with the
latter language; and such memorandum shall be written and signed by the Magistrate or
Judge with his own hand, and shall be annexed to the record. If the Magistrate or Judge is
unable to make a memorandum as above required, he shall record the reason of such
inability.
(4) Nothing in this section shall be deemed to apply to the examination of an accused person
under Section 263
Articles 37 To 43 ff The Qanun-e-Shahadat, 1984

37. Confession caused by inducement, threat or promise, when irrelevant in
criminal proceeding: A 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, proceeding from a person in authority and 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 would gain any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him.
Page 14 of 57
38. Confession to police officer not to be proved: No confession made to a police officer
shall be proved as against a person accused of any offence.
39. Confession by accused while in custody of police not to be proved against him:
Subject to Article 10, no confession made by any person whilst he is in the custody of a
police officer, unless it be made in the immediate presence of a Magistrate, shall be proved
as against person.
Explanation: In this Article, "Magistrate" does not include the head of a village discharging
magisterial function unless such headman is a Magistrate exercising the powers of a
Magistrate under the Code of Criminal Procedure, 1898 (Act V of 1898).
40. How much of information received from accused may be proved: When any fact is
deposed to as discovered in consequence of information received from a person accused of
any offence, in the custody of a police-officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be
proved.
41. Confession made after removal of impression caused by inducement, threat or

promise, relevant: such a confession as is referred to in Article 37 is made after the
impression caused by any such inducement, threat or promise has, in the opinion of the
Court, been fully removed, it is relevant.
42. Confession otherwise relevant not to become irrelevant because of promise of

secrecy, etc.: If such confession is otherwise relevant, it does not become irrelevant merely
because it was made under a promise of secrecy, or in consequence of a deception
practiced on the accused person for the purpose of obtaining it, or when he was drunk, or
because it was made in answer to Questions when he need not have answered, whatever
may have been the form of those questions, or because he was not warned that he was not
bound to make such confession, and that evidence of it might be given against him : .
Provided that the provisions of this Article shall not apply to the trial of cases under the
laws relating to the enforcement of Hudood.
Page 15 of 57
43. Consideration of proved confession affecting person making it and others jointly
under trial for same offence: When more persons than one is being tried jointly for the
same offence and a confession made by one of such persons is proved-
(a) such confession shall be proof against the person making it and;
(b) the Court may take into consideration such confession as circumstantial evidence
against such other person.
Explanation: "Offence'” as used in this Article, includes the abetment of or attempt to
commit the offence.
Chapter V-C of The Federal Capital Criminal Court Circulars

l. (1) When an accused person is brought before a Magistrate in order that his confession may be
recorded, the Magistrate should proceed according to the form prescribed for recording confessions.
(2) The Magistrate should remove the accused from the custody of the police who bring
him and should place him in the custody of the revenue persons or his own police orderlies.
(3) The Magistrate should then explain to the accused that he is not bound to make a
confession and that, if he does so, it will be taken down in writing and may thereafter be used as
evidence against him.
(4) The Magistrate should then allow the accused time for reflection, during which the
police who brought him and the investigating police shall not be allowed to have access to him This
time should be at least one hour.
(5) The attention of all Magistrates should be particularly drawn to the provisions of
sections 163 and 164 of the Criminal Procedure Code. The first clause of section 163, taken with
section 24 of the Evidence Act, provides· that if the confession is caused by any inducement, threat
or promise offered or made or caused to be offered or made by any Police Officer or person in
authority in reference to the charge against the accused person then if in the opinion of the Court
the inducement or threat or promise was sufficient to give the accused person ground which would
appear to him reasonable for supposing that by making the confession he would gain any advantage
or avoid any evil of a temporal nature reference to the proceedings against him and unless, in the
opinion of the Court, the impression caused by any such inducement threat or promise has been
fully removed, such confession is irrelevant, i.e., it is cannot be used as evidence proceedings.
(6) The next point to which the attention of all Magistrate should be drawn is that as under clause
(2) of section 163 for a confession of an accused person made in the course of appoints investigation
Page 16 of 57
to have any value, it must be one which the accuse person was disposed to make of his own free
will Before recording any such confession the Magistrate is bound to question the accused person,
and unless upon that questioning, he has reason to believe that confession is voluntary, he cannot
make the memorandum at the foot of the record. He cannot say "I believe that this confession was
voluntarily made" unless he has questioned the accused persons and from that questioning has
formed the belief not a doubtful attitude of mind, but a positive belief that the confession is a
statement which the accused person was disposed to make of his own free will.
(7) One important point upon which the Magistrate should invariable question the accused person
is as to the length of time during which he (the accused person) has been in the custody of the police.
It is not sufficient to note the date and hour recited in the police papers at which the accused person
is said to have been formally arrested. The confession should ordinarily be recorded during Court
hours and in open Court.
8. (I) The Magistrate should invariably satisfy himself by questioning the accused and by
all means in his power that the confession is voluntary, for which purpose the accused should be
questioned as follows: --
(a) Whether the accused has been given any inducement, threat or promise by the police or
anybody else to make a confession, and if no, as to what arc his reasons for wishing to make
a confession?
(b) Whether the accused understands that after making a statement, whether confessional
or not, before the Magistrate, he will not be remanded to police custody but will be sent to
the Judicial lock-up?
(2) If the accused is disposed to make a confession, the Magistrate should question him in
detail about all the circumstances of the case of the more detailed statement, the greater are
the chances or extenuating its true value. When questioning the accused, the Magistrate
should not cross-examine him or seek to entrap hi, but should permit the accused to give his
version of the case.
(3) The Magistrate should whenever feasibly examine the body of the accused provided
the accused consent to such examination. If there appear grounds for suspect1.ng violence, he
should have the accused examined by a Medical Officer, if possible.
(4) All questions put to the accused must be recorded in writing and his answers there to
must also be recorded m his own words.
(5) The Magistrate should add to the certificate required by section 164 of the Criminal
Procedure Code, a statement in his own hand, of the grounds on which he believes that the
Page 17 of 57
confession is voluntary the precaution which he took to remove the accused from the influence of
the police and the time, if any, given to him for reflection."
9. "An accused who declines to make a statement before the Magistrate, or an accused who
makes a statement, whether confessional or not, should not be remanded to police custody under
any circumstances.
10. "After a prisoner has made a confession, he should be committed to Jail and the Magistrate
should note on the warrant for the information of the Superintendent of the Jail concerned, that the
prisoner has made a confession".
It is not feasible absolutely to prohibit the return of prisoner to police custody after he has
made confession, since the prisoner may be required to identify persons or property, to assist at the
discovery of property or generally to be present while his statement is being verified. But it is
desirable that discrimination should be used in the exercise of the power to remand.
(11) Accused persons willing to make confessions should be taken for the purpose before
the highest of the following Magistrates who can reach within a reasonable time, vis: --
(1) Sub-Divisional Magistrates,

(2) Magistrates of the First Class,
(3) Magistrates of the Second Class, especially empowered by the Provincial Government
in this behalf, and whenever possible, before the Magistrate who will try the case or hold committal
proceedings Confessions so recorded are the more likely to be accepted as good evidence by the
trying Courts.
Speaking generally, there is no objection to the Magistrates furnishing the police with
copies, or allowing them to take peop1es of. Confessions when required for purposes of
investigation, provided that they bear in mind the provisions of clause (5) of para. 7 of Chapter VI,
Part D.
2. (a) Section 342 of the Code empowers the Court to put questions to the accused
at any stage of enquiry or trial to enable him to explain any circumstances appearing in
evidence against him. The questions put under this section must be con• fined to the points
brought out in the evidence and should not be in the nature of cross-examination of the
accused person. Nor should the power given by the section be used to elicit information
from the accused to fill up gaps in the prosecution evidence, for the conviction of a accused
person can only be bases on the evidence produced by the prosecution. No oath can be
Page 18 of 57
administered to the accused and the answers given by him can only be taken into
consideration in explanation of the prosecution evidence.
(b) The Magistrate is allowed by section 342 of the Code of Criminal Procedure to
examine the accused at an early stage of the case for the purpose of enabling him to explain
any circumstances appearing in the evidence against _him.- This provision is intended for
the benefit of the accused and must not be used to elicit his defense. before the prosecution
evidence is complete. Magistrates sometimes question the accused generally on the case as
soon as a prima facie case has been made out, but before the prosecution case is complete.
This is not desirable, according to the second part_ of clause (1) of section 342, it is after
then completion of the. prosecution evidence. that the accused can be. questioned generally
on the case. The necessity for postponing such examination is not avoided by framing a
charge at an early stage.
Even when a charge has been framed, the Magistrate should wait until the prosecution
evidence is concluded before making a general examination of the accused. ·
(c) Section 342 makes it obligatory for a Court to examine the accused generally on the
1
case after the witnesses for the prosecution have been examined and before the accused is
'
called on for his defence. Even when an accused person bas been examined at an earlier
stage, the Court must examine the accused I generally after the close of the prosecution
case (e, after the examination and cross-examination of prosecution witness and their
further cross-examination, if any, after the charge is framed) and before the accused is
called upon to produce his defence so as to give him an opportunity to explain any points
which were not included in the question put to him at earlier stages. Failure to examine the
accused at the close of the prosecution evidence has been held to be as illegality which
vitiates the trial. [vide Moton Khan and others V. the Crown (1927) 21 Sind Law Reporter
331].
When additional evidence has been introduced in the case by the Court under
section 540, Criminal Procedure Code, even if it be after the defence evidence is closed,
the accused must be examined on this further evidence [vide Allah ditto vs. the Crown
(1928) 23 Sind Law Report l.
(d) Under section 256 of the Code, if the accused person puts in a written statement,
it should be filed with the record. But a written statement of this kind docs not relieve the
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Court of the duty of examining the accused in Court after the close of the prosecution
evidence as laid down in section 342.
(e) Section 364 provides the mode in which the examination of an accused person
is recorded. The question put to the accused and the answers given by him should be
distinctly and accurately recorded, but the accused must confine himself to relevant answers
to the questions asked by the Court. Section 364 does not prevent a Court from refusing to
record irrelevant answers to questions put by it to the accused under section 342. If
necessary, the Court may even prevent the accused making lengthy irrelevant answers. The
examination of the accused should be recorded in the language in which he is examined,
and if that is not practicable in the language of the Court or in English. In cases in which
examination is not recorded by the Magistrates or Judge himself, he must record a
memorandum thereof in the language of the Court or in English if he is sufficiently
acquainted with the latter language. The examination must be read over to the accused and
made conformable to what be declares to be the truth. The Magistrate or Judge must then
certify under his own hand that the examination was taken down in his presence and
bearing, and that the record contains a full and the true account of what was stated.
(f) Under section 533 of the Code, if any Court, before which a confession or other
statement of an accused person, recorded or purporting to be recorded under section 1 64
or section 364, is intended to be, or has been received in evidence, finds that any of the
provisions of either of such sections, have not been complied with by the Magistrate
recording the statement, it must Sind Courts take evidence that such person duly made the
statement recorded and such a statement may then become admissible in evidence
notwithstanding the provisions of section 91 of the Evidence Act, provided the error has
not prejudiced the accused as to his defence on merits.
High Court Rules and Order

1. Statements of accused at various stages explained. ---The provisions, of sections 164,
342 and 364 of the Criminal Procedure Code with regard to the confessions and statements of
accused persons should be carefully studied. Section 164 deals with the recording of statements and
confessions at any stage before the commencement of an enquiry or trial. Section 342 deals with
the examination of accused persons during the course of the enquiry or trial. Section 364 prescribes
the manner in which the examination of an accused person is to be recorded.
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2. Use of confession of accused during Police trial recorded by Magistrate. ---The

object of Section 1645 Criminal. Procedure Code, is to provide a method of securing a reliable
record of statements or confessions made during the course of the Police investigation, which could
be used, if necessary, during the enquiry or trial. Under section 25 Of the Evidence Act, a confession
to a Police Officer is inadmissible in evidence, and hence when an accused person confesses during
the Police investigation the Police frequently get it recorded by a Magistrate under section 164,
Criminal Procedure Code, and it can then be used to the extent to which it may be admissible under
the Evidence Act.
3. Presumption attached to confessions recorded by Magistrate and - its evidential
value: Safeguards provided in law to obtain a voluntary and precisely recorded confessions.-
-- Under section 30 of the Evidence Act, a Court is bound to presume that a statement or confession
of an accused person, taken in accordance with law and purporting to be signed by any Judge or
Magistrate, IS genuine, and that the certificate or note as to the circumstances under which it was
taken, purporting to be made by the person signing it, are true, and that such statement or confession
was duly taken. The words "taken in accordance with law" occurring in. this section are very
important and it is essential that in recording a statement or confession under section 164, the
provisions of that section should be strictly followed. Some important changes were made in the
section in 1923 and the form of the certificate to be attached to the statements and confession was
also. altered. The evidential value of a confession depends upon its voluntary character and the
precision with which, it is reproduced and hence the section provides safeguards to secure this end.
These safeguards are of great importance, as confessions are often retracted at a later stage and it
becomes necessary for the Court to ascertain whether the alleged confession •was actually and
voluntarily made. The mere fact that a confession is retracted does not render it inadmissible in
evidence, but the Court has to scrutinize any such confession with the utmost care and accept it
with the greatest caution. Experience and commonsense in fact show that in the absence of some
material corroboration-it is not safe to convict merely on a retracted confession, unless from the
peculiar circumstances under which it' was made and judging from the reasons, alleged or apparent,
or retraction, there remains a high degree of certainty that the confession, notwithstanding its having
been resiled from, is genuine [(Cf. 30 P.R. 1914 (Cr.)].
4. Important 'features of Section 164, Criminal Procedure Code. Some important
features of section 164 as it stands now are:
(a) Statements or confessions made in the course of an investigation can be recorded only
by a Magistrate of the first class or a Magistrate of the second class who has been specially
empowered by the Provincial Government.
(b) Confessions must be recorded and signed in the manner provided in Section 364.
Page 21 of 57
(c) Before recording any such confession the Magistrate 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 in evidence
against him.
(d) 'No Magistrate shall record any such confession unless upon questioning the person
making it, he has reason to believe that it was made voluntarily, failure to question has been
held to vitiate the confession. (I.L.R. 2 Lah. 325).
(e) The memorandum set forth in section 164(3) must be appended at the foot of the record
of the confession.
(f) It is not necessary that the Magistrate receiving or recording a confession or Statement
should be a Magistrate having jurisdiction in the case.
COMMENTARY
Sections 164, 342 and 364, Cr.P.C. reproduced. These sections are referred to in rule of
this Chapter. They read as follows: -
164. (1) Any Magistrate of the first class and any Magistrate of the second class specially
empowered in this behalf by the Provincial Government may, if he is not a police-officer, record
any statement or confession made to him in the course-of an investigation under this Chapter or at
any time afterwards before the commencement of the inquiry or trial.
5a
[(1-A) Any such statements may be recorded by such Magistrate in the presence of the
accused, and accused given an opportunity of cross-examining the witness making he statement.]
(2) Such statements •shall be recorded in such of the manners hereinafter prescribed for
recording evidence as is, in his opinion best fitted for the circumstances of the case. Such
confessions shall be recorded and signed in the manner provided in section 364, and such statements
or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or
tried.
(3) A Magistrate shall, before recording any such confession 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 and no Magistrate shall record any such confession unless, upon questioning the person making
it, he has reason to believe that it was made voluntarily; and. when he records any confession, he
shall make a memorandum at the foot of such record to the following effect:
Page 22 of 57
"I have explained to (name) that he is not bound to make a confession and that. if he does
so any confession he may make may be used as evidence against him and I believe that this
confession was voluntarily made. It was taken in my presence and hearing, and was read over to
the person making it and admitted by him to be correct and it contains a full and true account of the
statement made by him. (Singed) A. B., Magistrate".
(Signed)A.B.,
Magistrate
Explanation. It is not necessary that the Magistrate receiving and recording a confession or
statement should be a Magistrate having jurisdiction in the case.
342. (l) For the purpose of enabling the accused to explain any circumstances appearing in
the evidence against him, the Court may, at any stage of any inquiry or trial without previously
warning the accused, put such questions to him as the Court considers necessary, and shall, for the
purpose aforesaid, question him generally on the case after the witnesses for the prosecution have
been examined and before he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such
question, or by giving false answers to them; but the Court and the jury (if any) may draw such
inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or
trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence
which answers may tend to show he has committed.
5b
[(4) Except as provided by sub-section (2) of Sections 340 no oath shall be administered
to the accused].
364. (1) Whenever the accused is examined by any Magistrate or by any Court other than
a High Court the whole of such examination, including every question put to him and every answer
given by him, shall be recorded in full, in the language in which he is examined, or, if that is not
practicable, in the language of the Court or in English: and such record shall be shown or read to
him, or, if he does not understand the language in which it is written, shall be interpreted to him in
a language which he understands, and he shall be at liberty to explain or add to his answers.
(2) When the whole is made conformable to what he declares is the truth, the record shall
be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or shall
Page 23 of 57
certify under his own hand that the examination was taken in his presence and hearing and that the
record contains a full and true account of the statement made by the accused.
(3) In cases in which the examination of the accused is not recorded by the Magistrate or
Judge himself, he shall be bound, as the examination proceeds, to make memorandum thereof in
the language of the Court, or in English, if h? is sufficiently acquainted with latter .language; and
such memorandum shall be written and signed by the Magistrate or Judge with his own hand,- and
shall be annexed to the record. If the Magistrate or Judge is unable to make a memorandum as above
required, the shall record the reason of such liability.
(4) Nothing in this section shall be deemed to apply to the examination of an accused person
under section 263.
365. Every High Court shall from time to time, by general rule, prescribe the manner in
which evidence shall be taken down in cases coming before the Court, and the evidence shall be
taken down in accordance with such rule.
Stage at which accused may be examined. A Trial Court undoubtedly has authority to
question the accused person at any stage of the trial. Section 342 of the Criminal Procedure Code
nukes provision to this effect. But it Would obviously be an irregularity going to the legality of the
trial if a Sessions Judge were to question the accused person after the assessors had given their
verdict, and to allow his judgment to be influenced by what was said. But where, in a corruption
case' tried by a Special Judge, such questioning of accused had not resulted in any prejudice to him,
it should be regarded as of no consequence.6
Statement of accused made before Magistrate supervising trap operation. Duty of
Magistrate. ---ln a trap case what •is done by a Magistrate, is done by him in his official capacity
as a Magistrate and in the course of the investigation. It is, therefore, his duty in law to record the
statement of the public servant, if he makes any, under section 164 in the manner provided for under
section 364 of the Code of Criminal Procedure, because an unqualified admission of his fault to a
public servant can be characterized as a judicial confession of an accused person and treated as
evidence against him only if that statement of the public servant is recorded according to the law
contained in sections 164 and 364, Cr.P.C. Non-observance of the formalities of sections 164 and
364 of the Code of Criminal Procedure in such a case will render the statement of the accused
person 7 inadmissible in evidence.7
5. Form prescribed for recording confessions. ---The annexed form of recording
confessions taken under section 164 has been prescribed and should invariably be used.
RECORD OF A CONFESSION MADE BY AN ACCUSED PERSON

(Section 164 of the Code of Criminal Procedure)
Page 24 of 57
__________________Division.
In the Court of _____________
THE STATE
versus
The confession of _______ take by me ____________ a Magistrate oif the _____________ District
this __________day of ________ 19
Memorandum of Enquiry
(The Magistrate shall first, as required by section 164(3), Code of Criminal Procedure, explain to
the accused person that he is not bound to make a confession, and that if he does so, it may be used
as evidence against him, and shall then put and record answers' to the following questions. If the
answers are of such a character as to require him to do so, he should put such further questions as
may be necessary to enable him to judge whether the accused person is acting voluntarily. In
arriving at his conclusion on this point the Magistrate should consider inter alia the period during
which the accused person has been in Police custody and make sure that the confession is not the
result of any undue influence or ill-treatment. Special care should be taken when women or children
are produced by the Police for their confessions being recorded).
8
[1. Q. Do you understand that you are not bound to make a confession?
A.
2. Q. Do you understand that your statement is being recorded by a Magistrate, and that if
you make a confession; it may be used as evidence against you?
A.
3. Q. How long have you been in police custody?

A.
4. Q. Do you understand that after making a statement before me you will not be remanded
to police custody, but will be sent to the judicial lock-up?
A.
5. Q. Understanding these facts, are you making a statement before me voluntarily?

A.
6. Q. what are your reasons for wishing to make a statement?]

A.
Statement of accused
(Mark or signature of accused)
Page 25 of 57
Magistrate.
I have explained to _______________ so, any confession he may make may be used. as
evidence against him and I believe that this confession was voluntarily made. It was taken in my
presence and hearing, and was read over to the person making it, and admitted by him to be correct,
and it contains a full and true account of the statement made by him.
Magistrate
Date ______________
6. Instructions for recording confessions. --- Unless there are exceptional reasons to the
contrary, confessions should be• recorded in open Court and during Court hours. Police officers
investigating the case should not be present except as is provided in paragraph 13 below.
7. Accused who has made a confession should not be kept in Police custody, but should
be kept in judicial lock-up separate from other prisoners. --- An accused person. who has made
a confession before a Magistrate should be sent to the judicial lock-up and not made over to the
Police after the confession has been recorded. If the Police subsequently require the accused person
for the investigation, a written application should be made giving reasons in detail why he is
required, and an order obtained from the Magistrate for his delivery to them for the specific
purposes named in the application. If an accused person, who has been produced before a Magistrate
for the purpose of making a confession, has declined to make a confession or has made a statement
which is Unsatisfactory from the point of view of the prosecution he should not be remanded to
Police custody.
7-A. When remanding to the lock-up an accused person who has made a confession, the
Magistrate shall record an order for him to be kept separate from other prisoners as far as may be
practicable.
8. Accused can be examined to explain the prosecution evidence against him and not
to fill up gaps in that evidence.---Section 342 of the Code empowers the Court to put questions to
the accused at any stage Of enquiry or trial to enable him to explain any circumstances appearing
in evidence against him. The questions put under this section must be confined to the points brought
out in the evidence and should not be in the nature of cross-examination of the accused person. Nor
should the power given by the section be used to elicit information from the accused to fill up gaps
in the prosecution evidence (Cf. I,L.R. 4 Lah. 55). For, the conviction of an accused person can
only be based on the evidence produced by the prosecution. No oath can be administered to the
accused and the answers given by him can only be taken into consideration in explanation of the
prosecution evidence.
8-A. Accused can be questioned generally on the case only after prosecution evidence
has been finished. ---The Magistrate is allowed by section 342 of the Code of Criminal Procedure
to examine the accused at an early stage of the case for the purpose of enabling him to explain any
Page 26 of 57
circumstances appearing in the evidence against him. This provision is intended for the benefit of
the accused, and must not be used to elicit his defence before the prosecution evidence is complete.
Magistrates sometimes question the accused generally on the case as soon as a prima facie case has
been made out, but before the prosecution evidence is complete. This is incorrect. According to the
second part of clause (I) of section 342, it is only after the completion of the prosecution evidence
that the accused can be questioned generally on the case. The necessity for postponing such
examination is not avoided by framing a charge at an early stage.
Even when a charge has been framed, the Magistrate should wait until the prosecution
evidence is concluded before making a general examination of the accused.
9. Failure to examine accused at the close of prosecution evidence vitiates the trial. --
- Section 342 make it obligatory for a Court to examine the accused generally on the case after the
witnesses for the prosecution have been examined and before the accused is called for his defence
Even when an accused- person has been examined at an earlier stage the Court must examine the
accused generally after the close of the prosecution case (i.e., after the examination, and cross-
examination of prosecution witnesses and their further cross-examination, if any, after the charge
is framed) and before the accused is called upon to produce his defence, so as to give him an
opportunity to explain any points, which were not included in the questions put to him at earlier
stages. Failure to examine the accused at the close of the prosecution evidence has been held to be
an illegality which vitiates the trial (vide 7 1.L.R. Lah. 564).
10. Written statement of accused. --- Under section 256 of the Code, if the accused person
puts in written statement, it should be filed with the record. But a written statement of this kind does
not relieve the Court of the duty of examining the accused in Court after the close of the prosecution
evidence as laid down in section 342.
There should be no reading out of written statements by accused persons, but in Sessions
and jury trials so much of the statement as shall appear to the Sessions Judge to be relevant, shall
be read out to the Assessors and the Jury, as the case may be.
11. Mode of recording examination of accused. -- Section 364 provides the mode in
which the examination of an accused person is recorded. The questions put to the accused and
answers given by him should be distinctly and accurately recorded, but the accused must confine
himself to relevant answers to the questions asked by the Court. Section 364 does not prevent a
Court from refusing to record irrelevant answers to questions put by it to the accused under section
342. If necessary, -the Court may even prevent the accused making lengthy irrelevant answers. The
examination of the accused should be recorded in the language in which he is examined, and if that
is not practicable in the language of the Court or in English. In cases in which examination is not
recorded by the Magistrate or Judge himself he must record a memo. thereof, in language of the
Court or in English if he insufficiently acquainted with the latter language. The examination must
Page 27 of 57
be read over to the accused and made conformable to what he declares to be the truth. The
Magistrate or Judge must then certify under his own hand that the examination Was taken down in
his presence and hearing, and that the record contains a full and true account of what was stated.
12. When evidence may be led to prove that accused duly made the confession or
statement.---Under section 533 of the Code, if any Court, before which a confession or other
statement of an accused person recorded or purporting to be recorded under section 164 or section
364 is intended to be or has -been received in evidence, finds that any of the provisions of either of
such sections have not been complied with by the Magistrate recording the statement, it must take
evidence that such person duly made the statement recorded and such a statement may then become
admissible in evidence notwithstanding the provisions of section 91 of the Evidence Act, provided
the error has not prejudiced the accused as to his defence on merits.
COMMENTARY
Section 533 of the Cr.P.C. referred to in this rule is reproduced below for facility of
reference:
533. If any Court, before which a confession or other statement of an accused person
recorded or purporting to be recorded under section 164 or section 364 is tendered or has been
received in evidence, finds that any of the provisions of either of such sections have not been
complied with by the Magistrate recording the statement, it shall take evidence that such person
duly made the statement recorded; and notwithstanding anything contained in the Evidence Act,
1872, section 91, such statement shall be admitted if the error has not injured the accused as to his
defence on the merits.
(2) The provisions of this section apply to Courts of Appeal, Reference and Revision.
13. Instructions about recording confessions. ---(i) The following instructions have been
issued by the Punjab Government for the guidance or Magistrates recording confessions (Punjab
Government circular letter No. 6091-J-3/39829 (H. Judgl.), dated the 19th December, 1936, to all
District Magistrates in the Punjab):
(a) Accused should be left for some time away from influence of Police.
In order to ensure that a statement or confession under section 164 of the Code Criminal Procedure
is made voluntarily, the following precautions should be taken. Before the Magistrate proceeds to
record the confession, he should arrange, so far as is compatible with his safety and that of his staff
and with the safe custody of the prisoner, that the latter is left for some time (say, for half an hour)
out of the hearing of police officers or other persons likely to influence him.
Page 28 of 57
(b) Confession recorded should not be handed over to the Police.

The Magistrate who records a confession under section 164, Criminal Procedure Code, should not
hand over the document after completion to the Police Officer incharge of the prisoner, but should
forward it as required by sub-section (2) of that section direct to the Magistrate by whom the case
is to be enquired into or tried.
(c) Copy of recorded confession may be given to Police.

These instructions do not prohibit a Magistrate who has recorded a confession or statement from
allowing the Police to take a copy of it before it is forwarded to the trial Magistrate; and Magistrates
should always permit the Police to take a copy if they express a desire to do so. When permission
is so given,' the Police copy should be written out by a Police Officer or clerk from the dictation of
an officer of the Court, in the actual presence of the Magistrate who recorded the confession.
Time and labour can be saved if the Magistrate recording a confession makes a carbon copy which can
subsequently be made available for Police purposes, or alternatively dictates a copy to an official of the
Court at the same time as he himself writes the original.
Page 29 of 57
Reading Materials
“Use of technology while recording statement of accused,

Confessional statement and admission of accused”
Abstract:
This paper is about procedure followed while recoding statement of an accused whereby
he admits guilt and confess commission of offence in a manner as alleged in the case of
prosecution. This paper also discusses issues that are normally faced to an investigator and
prosecutor while producing such evidence in the court of law. Superior courts decisions
would help to understand mindset of the courts and the expectation with regard to follow
the procedure. International practices have been noticed which are discussed in detail.
Possibility to use Audio-visual equipment for recording statement of accused is discussed
with the objective to facilitate courts for taking decision whether a statement of accused
either admission or the confession may be used against him or not. Role of technology is
indeed essential and therefore it is discussed that how it can be used effectively and how
other jurisdictions are using the technology to reach just decision.
Key words: admission of accused, confession, use of audio-visual equipment for securing
evidence during investigation
Introduction
Oral confession of guilt like all admissions in civil cases are received with great caution.
"Words may easily be misunderstood by an honest man. They may easily be
misconstrued by knave. What was spoken metaphorically may be apprehended
literally. What was spoken ironically may be apprehended seriously. A participle,
a tense, a mood, an emphasis, may make the whole difference between guilt and
innocence."
Lord Macaulay
Every word of Lord Macaulay has of great importance. It speaks about the human behavior
and habits. It is also about cultural values of a particular segment of a society. Courts
sometimes become too bookish and go word by word while dealing an issue judiciously.
There is no harm to give importance to the material collected during course of investigation
or enquiry however human feeling and the conditions when a statement is made may also
be taken into reflection while considering a statement in judicial proceedings or trial.
Page 30 of 57
The issue of confession becomes important during course of investigation particularly

when it is made before a judicial magistrate. An aggrieved person becomes satisfied when
such admission is made and facts of commission of offence are spelt out from the mouth
of an accused. Investigation officer also does not make further efforts to collect more
evidence. It has been noticed that confessional statement is oftenly not believed by the trial
courts on the ground of technical defects caused due to inefficiency of the officer recording
it and because of such defects, an accused gets benefit resulting acquittal from the charge/s.
Research question
A confessional statement, recorded during course of investigation, is not normally believed

by the trial and appellant courts.
The question is answered in either way during the course of study; a series of
recommendations will also be formulated to make the provisions relating to confession
more useful as provided in the Qanun-e-Shahadat, 1984 (hereinafter shall be called as ‘the
Order’), the Code of Criminal Procedure, 1898 and many subordinate legislations.
Literature review:
Law relating to confession has been provided in the Order and many other laws which have
been reviewed and shall be discussed in detail hereunder. Apex courts judgments of
different jurisdictions will also be perused and would assist the author to suggest an
effective mechanism to record statement of an accused relating to his admission of guilt or
any other fact that is relevant or would become relevant during course of trial.
Review of the Qanun-e-Shahadat, 1984
Articles 37 to 43 of the Order deal with the issues relating to confessional statement made
by an accused booked in a criminal case.
Article 37 of the Order specifically states that confession, if caused by inducement, threat
or promise, shall become irrelevant in criminal proceedings. High Court Rules and Orders
and Criminal Court Circulars also deal with this subject. These legislations provide
guidelines that may if followed in letter and sprit, would facilitate to a Magistrate for
assessing factor of inducement, threat or promise.
Article 38 of the Order specifically states that a confession made to a Police Officer shall
not be used against the accused.
Page 31 of 57
Article 39 of the Order explains/speaks about the authority before whom a confession may
be made. This is the reason that a Magistrate (Judicial Magistrate) conducts and records
confessional statement and take care/follow the guidelines as provided under Article 37 of
the Order, under Section 164 of Code of Criminal Procedure, 1898, Criminal Court
Circulars and High Court Rules and Orders.
Article 40 of the Order provides some space for considering information/ admission
disclosed by accused to a police officer while in police custody which may be used against
the accused. Most of the time the Courts while considering a piece of evidence referred to
in Article 40 the accused deny such admission or disclosure of facts while facing trial.
Article 41 of the Order is of great importance as it states that the confession is made after
removing all factors referred to in Article 37 shall be relevant. It is difficult to assess for
the trial court that factors of inducement, threat or promise were not affected while
recording confessional statement of accused.
Article 164 of the Order states that the court shall allow production of evidence that has
become available because of modern devices or techniques.
From the above provisions of the Order, it appears that court can consider a statement either
as admission or confession if it has been given with free will and elements of inducement,
threat or promise do not exist. Evidence collected through modern devices or techniques
may assist courts to assess elements of inducement, threat or promise. In most foreign
jurisdictions most of the time statement is recorded through audio-visual devices and beside
law of evidence, procedural laws have also been amended.
Review of the Code of Criminal Procedure, 1898:
Criminal Procedure Code, 1898 provides guidelines and explain how confessional
statement of an accused is to be recorded. Sections 164 and 364 are relevant on the subject.
Similar provisions of law exist in Bangladesh and Indian jurisdiction with some
amendments. In all jurisdictions confessional statement is taken into consideration with
great care. Superior courts hardly rely on such evidence alone. Most of the times the person
making statement deviates from his earlier statement and therefore some alternative mode
of recording evidence is needed.
Page 32 of 57
Review of the High Court Rules & Orders:

In Vol. III, Chap. XIII of the High Court Rules & Orders, procedure to record confession,
has been explained. According to it when a person is produced before recording confession
his handcuffs should be removed and all Police Officers turned out of the Court-room. He
should be informed that he was before a Magistrate and whether he made any statement or
not he would not be handed back to the police but would be sent to the judicial lockup.
Then he should be given sufficient time to think over the matter. After that he should be
warned that he was not bound to make any statement and if he did so his statement may be
used against him in evidence.
Crown Prosecution Service UK for taking the witness statement
The written, audio, or video statement of a witness taken by a police investigator becomes
the permanent record of events as seen by that witness. The police investigator use the
content of that statement as a reference document in the construction of search warrants
and in support of reasonable grounds for belief to lay an arrest. The crown prosecutor use
the statement to construct their case for presentation to the court and for pre-trial disclosure
of the evidence to the defence counsel. The statement serves as a document from which the
witness may refresh their memory of events to provide accurate testimony to the court. In
our jurisdiction the witness does not sign the statement whereas in UK witness sign it.
Statement under section 9 of the Criminal Justice Act, 2013 is taken from a person who
has voluntarily given the statement. It does not rely on section 20 (2) HSWA powers.
Section 9 statements are recorded on form LP70.
4. Under s9 CJA the contents of a written statement will be admissible, without the
witness attending court to give oral evidence, if the following conditions are satisfied:
• the statement purports to be signed by the maker;

• the statement contains a declaration by the maker that it is true to the best of his/her
knowledge and belief and that it was made knowing that, if it were tendered in
evidence, the maker would be liable to prosecution if s/he wilfully stated in it anything
which he knew to be false or did not believe to be true (known as a `perjury
declaration');
Page 33 of 57
• a copy of the statement is served on the other parties before the hearing where the
statement is tendered in evidence; and
• none of the other parties object to the statement being tendered in evidence.
• Part 16 of the Criminal Procedure Rules should be also complied with.
In Pakistan every oral evidence is subject to cross examination.
Pakistani courts verdicts:
In recent past in the case of Hussain Nawaz1 Sharif Hon’ble Supreme Court of Pakistan
has discussed the issue of recording statement of witnesses and the accused through
audio/video recording system. The Petitioner sought relief for issuance of an appropriate
order directing the JIT to stop the video recording of the proceedings relating to
examination and interrogation of witnesses.
Hon’ble Supreme Court observed as under:
“7. In the age of computer where almost everything is communicated and even
business of every type is transacted online, emphasis on the form of doing a thing
as it used to be done in 1898 would amount to putting at naught the dynamics of
scientific and technological advancements which have not only liberated man from
exhausting labour but also made the ;8things easier. Law in many countries of the
East and the West has been c;2hanged and even re-enacted. Addition of the word
‘truly’ in sub-Section 2 after the word ‘answer’ and insertion of the proviso to sub-
Section 3 of Section 161 of the Code of Criminal Procedure, 1973 of India,
providing for recording of such statement by audio-video electronic means is an
illuminating example on the subject. Alright, audio or video reclording cannot be
admitted into evidence for the proof of such statement till the law is amended, as it
has been amended in India and the other countries, but its use to facilitate recording
of such statement cannot be discouraged on the basis of so pedantic an
interpretation of Sections 161 and 162 of the Cr.P.C.”
In the above case the Hon’ble Supreme Court did not discourage the process of recording
statement through audio or video recording system and highlighted that in this era of
1 A Civil Miscellaneous Application (C.M.A) No. 3986 of 2017
Page 34 of 57
technology, technological advancement and its use cannot be ignored. Legislative bodies
should look into the matter and necessary amendment may be made.
There is also an example of admitting evidence collecting through electronic means set by
Hon’ble High Court of Sindh in the case of Sikandar Ali Lashari v State2. In that case
admission of accused on a few important facts was recorded through electronic device and
it was saved in DVD. The applicant/accused agitated an order of trial court whereby the
court declined to supply USB and CD to the applicant before framing of the charge. It was
plea of the accused that if the copy of CD of alleged confession is not provided to the
accused; neither he would be able to defend the charge nor would be in a position to assess
its voluntariness and genuineness. The order of trial court was set aside and it was held by
the court that trial court to supply the copies of CD and USB to the applicant in compliance
of the provisions of Section 265-C Criminal Procedure Code, 1898.
Hon’ble High Court declared the CD within the definition of document and the piece of
evidence collected through electronic means was given due importance.
Confession statement recorded by the Magistrate during course of investigation is hardly

relied on because of many reasons defects and apex courts have observed and pointed out
flows from time to time. Here a few cases are discussed where the statement was not taken
into consideration as proof of commission of offence by an accused.
It the case of Muahmmad Sharif3 it was observed that the Magistrate should satisfy that the
confession is being made voluntarily and then record it.
In the case of Munir Ahmed4 Hon’ble Court was of the opinion that judicial confession not
recorded according to High Court Rules as given in Chap. XIII Vol. III, would be ruled out
from consideration.
In the case of Ahmed Sher5 Hon’ble Court observed that during judicial confession, no
question was recorded by the magistrate that if the accused did not make the statement he
would not be handed back to the police but would be sent to jail. The appellant remained
in police custody after his judicial confession and therefore the confession was not relied
upon.
2 Criminal Revision Application No. D-240 of 2015 Sikandar Ali Lashari v The State
3 1975 P.Cr.LJ 889
4 NLR 1987 Cr. 831
5
PLJ 1995 FSC 109
Page 35 of 57
In the case of Murtaza 6 court emphasized on a question "Why are you making a
confessional statement in a murder case." The Magistrate should have asked this question
from all the accused making the confession, which he failed to do and therefore the
statement was discarded.
In the case of Nazir Ahmed7 Hon’ble court observed that confession not recorded according
to sections 164 and section 364 of the Code of Criminal Procedure. These sections must be
construed together and the effect of the statute is to prescribe the mode in which confessions
are to be dealt with, when made to a Magistrate during the investigation, and to render oral
evidence of such confessions inadmissible.
In the case of Mst. Khial Meena 8 it was observed that noncompliance with mandatory
provisions of Sec. 364(2) Cr.P.C. is not a mere irregularity which is curable but is an
illegality which is not curable.
In the case of Ramzan9 Hon’ble court observed that nothing on record to show that warning
contemplated by section 164 (3), Cr.P.C had been given to the accused. Confession, held,
inadmissible.
In the case of Muhammad Nazeer10 it was observed by the Hon’ble Court that the accused
had hardly any reasonable time at his disposal to think over before recording his confession;
the circumstances cast doubt about the voluntary nature of the confession.
Hon’ble Supreme Court in the case of Gul Jamal11 on the point of giving time for reflection
before confession observed that there is no hard and fast rule as to how much time is to be
allowed. Period of time depends on each case.
In the case of Umer Din12 Hon’ble apex court observed that where the required certificate
was not appended but Magistrate deposed that he had satisfied himself about the
voluntariness of the confession and gone through formalities the confession was held
admissible.
Review of Indian law:
6
PLJ 1996 Cr.C (Pesh) 371
7 ILR 1936 (17) Lah. 629
8 PLJ 1997 FSC 52.
9 PLD 1965 Kar. 242
10
1993 SCMR 1822
11
PLJ 1981 SC 52 and 1980 SCMR 654
12
(DB) ILR 1921 (2) Lah. 129
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India amended its Criminal Procedure Code, 1898 from time to time and in the year 2013
its section 161 was amended whereby the investigation officer was authorized to record
statement of a witness through audio-video means by using modern devices. Such
amendment has not been made however if it is adopted and incorporated in our Code, shall
supplement to the criminal justice system and facilitate to the courts and investigation
agencies to reach at just decisions. For the sake of convenience section 161 of the Criminal
Procedure Code, 1898 is reproduced as under:
“Examination of witnesses by police13

1. Any police officer making an investigation ……………..…. of the case.
2. Such person shall ………………………… or to a penalty or forfeiture.
3. The police officer may reduce into writing any statement made to him in the course
of an examination under this section; and if he does so, he shall make a separate
and true record of the statement of each such person whose statement he records.
Provided that statement made under this sub-section may also be recorded by
audio-video electronic means.
Provided further that the statement of a woman against whom an offence under
section 354, section 354A, section 354B, section 354C, section 354D, section 376,
section 376A, section 376B, section 376C, section376D, section 376E or section
509 of The Indian Penal Code is alleged to have been committed or attempted,
shall be recorded, by a woman police officer or any woman officer.”
Similar amendment has been made in section 164 of the Indian Criminal Procedure Code.
Its sub-section 1 is reproduced as to give an idea of amendment as under:
“Recording of confessions and statements14
1. Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has
jurisdiction in the case, record any confession or statement made to him in the
course of an investigation under this Chapter or under any other law for the time
13Section 161 of the Criminal Procedure Code, 1898 was amended through Criminal Law
(Amendment) Act, 2013. https://www.kaanoon.com/indian-law/crpc-161/
14
Section 164 of the Criminal Procedure Code, 1898 was amended through Criminal Law
(Amendment) Act, 2013
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being in force, or at any time afterwards before the commencement of the inquiry
or trial:
Provided that any confession or statement made under this sub-section may also be
recorded by audio-video electronic means in the presence of the advocate of the
person accused of an offence;”
The proviso of section 164 carry the same ideology with regard to using technology as in
the proviso of section 161 Cr.PC. These two amendments, if made in Pakistani jurisdiction,
would ease and facilitate to investigating agencies and the courts. Policy makers to look
into the matter aiming to improve the Criminal Justice System of the Country.
In most cases decided in Pakistan’s Jurisdiction the courts discussed criteria of recording
statement of accused and stressed on the following questions to be asked from the person
making statement:
1. 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?
7. Handcuff should be removed.
If the process of recording statement is made by using electronic means, it would ease the
trial court to assess evidentiary value of a statement. There are two versions brought before
trial court while considering confession statement. One of the parties is of the view that the
statement was made under threat and promise whereas other version is that it was a
voluntary act. Having audio-visual recording would help trial court to reach at some logical
conclusion. It would also be easy for the court to assess whether requirement of law have
been observed by the trial court or not.
Recommendation:
i. Section 161 of the Criminal Procedure Code may be amended by adding

following proviso in sub-section 3;
“Provided that statement made under this sub-section may also be recorded by
audio-video electronic means.”
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ii. Section 164 of the Criminal Procedure Code may be amended by adding
following proviso in sub-section (1);
“Provided that any confession or statement made under this sub-section may
also be recorded by audio-video electronic means in the presence of the
advocate of the person accused of an offence;”
iii. Courts and investigation agencies may be provided sufficient facilities in terms
of infrastructure and equipment/electronic devices so that statement may be
recorded and saved in tangible form;
iv. Format of confession statement as provided in High Court Rules & Order and
Criminal Court Circulars may be revisited and all issues highlighted in the
superior courts’ verdicts may be incorporated in the shape of questions; and
v. A documentary video cum mock proceeding may be developed for academic
purposes and that may be shared with the trainees and law students and may
also be made available for the investigators and magistrates for guidance.
vi. I.O.s heavily relied on the confession statement; it is advised to I.O.s to verify
the facts disclosed by the accused during confession and collect connecting
evidence to prove the version of the accused.
vii. Courts while examining and evaluating confession statement should weigh the
facts disclosed by the accused, and defect or omission on the part of I.O. or
the magistrate recording confession are to be ignored.
Page 39 of 57
Exercises
Exercise 1:
Investigation officer arrested accused Saleem on 01-01-2020 and produced before
magistrate on 02.01.2020 for police custody remand on the plea that case property is to be
recovered from the possession of the accused and co-accused are to be arrested. Remand
was granted in police custody for five days. On the fifth day the investigation officer
produced accused and submitted an application that the accused wish to confess his guilt.
Required:
i. You are police officer and conducting investigation. What type of application
will be written by you whereby request will be made for recording confession
statement of the accused?
ii. What type of precaution you need to observe on day of production of accused
before the court of magistrate?
iii. What would be next step for you if the magistrate record confession statement
of the accused?
Exercise 2:
Investigation officer arrested accused Saleem on 01-01-2020 and produced before
magistrate on 02.01.2020 for police custody remand on the plea that case property is to be
recovered from the possession of the accused and co-accused are to be arrested. Remand
was granted in police custody for five days. On the fifth day the investigation officer
produced accused before magistrate and submitted an application that the accused wish to
confess his guilt. Magistrate directed the I.O. to file proper application to which I.O.
approached to the prosecutor for guidance.
Required:
i. You are prosecutor and a police officer has approached you for seeking
guidance in writing proper application. Draft it and guide to the I.O. the
procedure of filing application.
ii. What would be your advice to the I.O. about the procedure of recording
confession statement of accused before the magistrate? Refer relevant law.
iii. What type of precaution the magistrate needs to observe on day of recording
confession statement of the accused?
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iv. What would be next step for the I.O. if the magistrate record confession
statement of the accused?
Exercise 3:
Reade the confession statement of accused which was recorded in presence of the
magistrate and commend on it.
Page 41 of 57
Key of Exercises
Exercise 1
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Exercise 2
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Exercise 3
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Presentation (Confession Statement)
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SINDH JUDICIAL ACADEMY

Police Prosecution Cooperation

Session Plan .................................................................................................................................... 4

Session: Procedure of recording Confession Statement............................................................ 4

Pre & Post-assessment .................................................................................................................... 6

Confession Pre-Assessment ........................................................................................................ 6

Relevant law .................................................................................................................................. 10

Police Rules 1934:..................................................................................................................... 10

Articles 37 To 43 ff The Qanun-e-Shahadat, 1984 .................................................................. 14

Chapter V-C of The Federal Capital Criminal Court Circulars ............................................. 16

High Court Rules and Order .................................................................................................... 20

Reading Materials ......................................................................................................................... 30

Key of Exercises ............................................................................................................................ 42

Presentation (Confession Statement) ........................................................................................... 43

Aims and Objective

1. To make aware justice sector stakeholders about the concept of Confession

2. Procedure of placing request by Investigation Officer to magistrate for recording

3. Role of I.O., prosecutor and magistrate while recording confession statement

5. Share relevant law and case law on the subject

Session: Procedure of recording Confession Statement

Time Sub-topics Methodology Summary/Assessment Resources

Pre & Post-assessment

Q1. What is “Confession”?

a. Statement that someone is guilty

Q2. Confession is recorded by-

Q5. Confession is inadmissible if it is-

a. Made before police

Q6. Whether any confession is admissible if impression of threat, inducement is

Q7. Before recording confession, Magistrate must satisfy himself about-

Q8. If accused refuses to make confession

a. He will be remanded to judicial custody

Q9. An accused has right to make correction in his confession, written by

Q10. Confession of co-accused is dealt under-

a. Article 40 of the Qanun-e-Shahadat, 1984

12. Certificate in Confession is attached per

a. Section 342 Cr.P.C.

13. Admission of oath in confession renders it-

14. Oath in confession cannot be administered to-

15. If accused claims inducement and threat then-

a. Confession will be recorded

17. Prosecution has right of cross examination on confession of accused

18. Confession is governed by-

a. Code of Criminal Procedure, 1898

20. Confession is recorded in manner provided under-

a. Section 364 CrPC

21. The answers given by accused in preliminary enquiry should be recorded-

22. Article_____ to_____, of Qanun-e-Shahadat deals with confession

23. Confession on oath have_____ in law

Police Rules 1934:

25.28. Statements recorded by Magistrates’--(l) The-circumstances under which police officers.

(2) If a professional offender is convicted-and sentenced to -imprisonment or transportation and it

25.29. Confessing accused and approvers. ---

Code of Criminal Procedure, 1908 Sections 164 and 364 Cr. PC

Articles 37 To 43 ff The Qanun-e-Shahadat, 1984

41. Confession made after removal of impression caused by inducement, threat or

42. Confession otherwise relevant not to become irrelevant because of promise of

Chapter V-C of The Federal Capital Criminal Court Circulars

(1) Sub-Divisional Magistrates,

High Court Rules and Order

22. Article_ to_, of Qanun-e-Shahadat deals with confession