Confession.
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The word “confession” has not been defined in the QSO. In Article 21 of his Digest of the Law of Evidence Justice Stephen stated that “a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.” However, the Privy Council did not accept this definition for the purposes of the Evidence Act, 1872, in India.
The substantive law of confession is contained in Articles 37 to 43 of the QSO. The object of law is to ensure that a confession should be free and voluntary. It should proceed “from remorse and a desire to make reparation for the crime.” 9Article 37 of the QSO stipulates that a confession made by an accused is irrelevant if it is caused by any inducement, threat or promise proceeding from a person in authority. However, Article 41 provides that it would become relevant if that inducement, threat or promise is removed. Article 38 interdicts confessions made to a police officer. Article 39 ordains that no confession made by a person while he is in the custody of police, unless it is made in the immediate presence of a Magistrate, shall be proved against him. Article 40 says that so much of such information that distinctly leads to the discovery of a fact alone is admissible in evidence. It is an exception to Articles 38 and 39 of QSO.
In criminal cases there is a great responsibility on the courts to determine whether a confession is voluntary and true. To this end they must take into consideration the “totality of circumstances” and find out what prompted the accused to make it.
The law regarding judicial confessions.
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The law regarding judicial confessions is set out in section 164 Cr.P.C. read with section 364 Cr.P.C. and Chapter 13 of Volume III of the Lahore High Court Rules and Orders which may be summarized as follows:
(a) Section 164 Cr.P.C. deals with the recording of statements and confessions at any stage before the commencement of an inquiry or trial. Section 342 Cr.P.C. deals with the examination of accused persons during the course of an inquiry or trial. Section 364 Cr.P.C. prescribes the manner in which the examination of an accused person is to be recorded.
(b) 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 a Second Class who has been specially empowered by the Provincial Government. However, it is not necessary that the Magistrate recording the confession should be the Magistrate having jurisdiction in the case.
(c) The confession must be recorded and signed in the manner provided in section 364 Cr.P.C.
(d) Police officers investigating the case should not be present at the time when the Magistrate records the confessional statement.
(e) Before recording any confession the Magistrate should explain to the person making it that he is not bound to make the confession and that if he does so it may be used as evidence against him.
(f) A Magistrate should not record any such confession unless upon questioning the accused person he is satisfied that he is making it voluntarily. For this purpose he should put him the questions stipulated in Rule 5 of Chapter 13 of Volume III of the Lahore High Court Rules and Orders and record his answers thereto. If the answers are ambiguous he may put him such further questions as may be necessary. In order to determine whether the confession is voluntary the Magistrate should consider inter alia the period during which the accused person has been in police custody. He should also ensure that the confession is not the result of any undue influence or illtreatment.
(g) In order to further ensure that a confession under section 164 Cr.P.C. is made voluntarily, before he proceeds to record the confession the Magistrate should allow the accused person some time to ponder and during that period he should be kept out of the hearing of police officers and other persons likely to influence him.
(h) The memorandum set forth in section 164(3) Cr.P.C. must be appended at the foot of the record of the confession.
(i) The confession should be recorded in open court and during court hours unless there are exceptional reasons.
Rule 3 of Chapter 13 Volume III of the High Court Rules and Orders talks of the presumption attached to the confession recorded by the Magistrate and its evidentiary value. It stipulates:
(i). Under Article 91 of the Qanun-e-Shahadat Order, 1984, 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 Cr.P.C., the provisions of that section are strictly followed. The evidentiary value of a confession depends upon its voluntary character and the precision with which it is reproduced.
(ii). 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 common sense in fact shows 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 of retraction there remains a high degree of certainty that the confession notwithstanding its having been resiled from is genuine.
Mobile Data.
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PTA issued revised SOP for the Mobile Companies vide Letter No.15-9/2012/Enf/PTA dated 13.3.2012. Some of the instructions that are relevant for this case are mentioned below:
i) The sale outlets of the Mobile Companies were divided into three categories: (a) company‟s own Customer Sales/ Services Centres (CSCs),
(b) Franchises, and (c) Registered Retailers.
ii) Every sale channel (CSC, Franchise or Registered Retailer) had a Unique ID. Non-active pre-paid SIMs (including but not limited to stalls, stalls under iii) iv) v) vi) vii) umbrellas, footpaths, make-shift shops etc.) could be sold only through the holder of “Unique ID”.
iii) Retail Shops were further classified as under:
a) Dedicated business of SIM sale;
b) Involved in other business related telecommunication only, e.g. sale/purchase of telecom equipment/accessories, re-load, prepaid cards etc.;
c) Any other premises having Unique ID.
iv) The Mobile Companies were required to sign fresh agreements with their franchisees and the latter with the retailers within a stipulated period and confirm the same to PTA.
v) The Mobile Companies were required to issue registration letters/authorization certificates to the franchisees and retailers and they were obligated to display them at a suitable place in their premises.
vi) Mobile Companies were required to maintain record of SIMs/connections sold by franchisees/retailers for tracking and share them with PTA on quarterly basis.
vii) The Mobile Companies were required to establish a Call Centre to handle verification and activation process.
viii) The Mobile Companies were required to establish a system for maintaining Cellular Service Agreement Form in electronic format (e-CSAF) enabling automation of pre-sale and post-sale process through cross verification of subscribers‟ antecedents from NADRA‟s Database.
ix) . The sale outlets could only sell inactive connections/SIMs. The Mobile Companies‟ own CSCs and Call Centres had the sole authority to verify and activate them.
ix) Post-paid/Data SIMs could only be purchased from CSCs and franchises. The retailers were not authorized.
The IMEI number of a phone contains secret information about the product and can also help in ascertaining the location of the user and tracking him down. The Investigating Officer did not probe the matter on the basis of the IMEI number of phone.
Criminal Appeal No. 769/2014
Shafqat Masih etc. Vs. The State etc.
CSR No. 8/T/2017
The State Vs. Shafqat Masih etc.
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