Sections 164, 340(2), 342 and 364 Cr.P.C. contain provisions for recording confessions and statements of accused persons. Section 164 may be invoked any time before the commencement of the inquiry or trial. On the other hand, sections 340(2) and 342 deal with the examination of the accused during the inquiry or trial. Section 364 prescribes the manner in which the examination is to be recorded.
Sections 164, 340(2) and 342 Cr.P.C. all have distinct objects. Section 164 seeks to provide a method of securing a reliable record of statements of confessions made during police investigation which could be used during the inquiry or trial, if necessary. Article 38 of the Qanun-e-Shahadat, 1984, makes confession to a police officer inadmissible in evidence so when an accused confesses during investigation the police make use of section 164 Cr.P.C. They produce him before a magistrate and get his statement recorded. The object of section 342 is to afford an opportunity to the accused to explain his position in respect of the evidence brought against him during the inquiry or trial while section 340(2) enjoins that an accused, if he does not plead guilty, may give evidence on oath in disproof of the charges or allegations levelled against him or his co-accused.
Section 164 is central to the discussion so let us focus on it first. Rule 4 of Chapter 13 Volume III of the Lahore High Court Rules and Orders explains the salient features of section 164 Cr.P.C.
Rule 5 prescribes the form for recording confessions under section 164 Cr.P.C. while Rule 6 mandates that confessions should be recorded in open court and during court hours unless there are exceptional reasons. Further, the police officer investigating the case should not be present at that time. Rule 7 mandates that an accused should be sent to the judicial lock-up and not made over to the police after his confession has been recorded and even there he should be kept separate from other prisoners. Article 10A of the Constitution of Pakistan recognizes right to fair trial as a fundamental right. “Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles.” One of the rights associated with the right to fair trial is the right to a legal counsel. This right is statutorily recognized in section 340(1). Therefore, before recording confession under section 164 it is incumbent on the magistrate to inform the accused about the said right and afford him a reasonable opportunity to engage a counsel.
In his commentary on section 164 of the Indian Code of Criminal Procedure, 1973, which is similar to our Code of 1898, Sarkar writes: “Section 164 applies to all sorts of confessions whether made by a person accused of an offence or not. Though ordinarily section 164 is made use of when an accused desirous of making a confession is brought to a magistrate for its record, it is not restricted only to confessions. The section says ‘any confession or statement’. It does not specifically mention any person whose confession or statement is to be recorded; it may be an accused or one who may ultimately be an accused, or a witness capable of giving useful information relating to the offence. Again, the ‘statement’ may be a confession or it may not amount to a confession, or it may be partly confessional and partly exculpatory … Although it may be retracted afterwards, as is often done in the case of confessions, what is stated before the magistrate is evidence in law and it will be for the Judge to determine whether the earlier or the later version is true … Section 164 should be read together with sections 24, 25, 26 and 29 [of the Indian] Evidence Act 6 and when so read the following result follows: (1) Confession shall not be made to a police officer. (2) It must be made in the presence of magistrate. (3) The magistrate shall not record it unless he is, upon inquiry, satisfied that it is voluntary. (4) He shall record it in the manner laid down in section 164 [read with section 364].”
The confessional statement of an accused duly recorded under section 164 is admissible in evidence though it may be retracted – as it happens in a vast majority of cases. The probative value of a retracted confession is determined by the court in accordance with the Law of Evidence. As adumbrated, the confession of an accused under section 164 is distinct from the one which he may make during his trial.
Section 243 stipulates that a magistrate may convict an accused if he admits that he has committed the offence with which he is charged provided the confession is recorded, as nearly as possible, in his words and he fails to show sufficient cause against his conviction. There is, however, divergence of opinion regarding the true import of section 243. Some authorities hold that section 243 does not impose any condition and an accused may confess his guilt at any stage of the trial.
The second view is that when the charge is framed and the accused denies it the magistrate has to proceed with the trial. If he subsequently makes a voluntary confession, it shall be recorded in accordance with section 364 and put to him for his explanation under section 342 Cr.P.C. Such a confession does not amount to a plea of guilt within the meaning of sections 243 and the court cannot convict him on its basis alone.
The third opinion is that if the accused denies the charge when he is indicted but pleads guilty when the trial progresses, the magistrate should require independent evidence to convict him.
The last view is more widely accepted and even the Division Benches of this Court have approved it.
Writ Petition No. 11984 of 2020
Muhammad Faizan Saleh Vs. The State etc.
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