اگر تفتیشی آفیسر ملزم کا بیان اسکے موقف کے مطابق تحریر نہ کرے تو ملزم مجسٹریٹ کے روبرو پیش ہو کر زیر دفعہ 164 ض ف اپنا بیان قلمبند کرا سکتا ہے

Section 164 of the Code of 1898 authorizes the Magistrates of the First Class and of the Second Class, who are specifically empowered by the Provincial Government, to record any statement or confession made to them during an investigation by the police or at any time afterwards but before the commencement of the inquiry or trial. The Magistrate should take down the statement in the manner prescribed by the Code of 1898 for recording evidence as, in his opinion, is most suited to the circumstances of the case. He may record it in the accused’s presence and give him an opportunity to cross-examine the maker. However, the Magistrate must record the confessions as stipulated in sections 164(3) and 364 of the Code of 1898. The Explanation states that the aforesaid Magistrates may exercise these powers even if they do not have jurisdiction in the case. The object of section 164 is to protect a person against extortion or oppression or to fix him to it when it is feared that he may resile afterwards or tamper with it.

The phrase “before the commencement of the inquiry or trial” in section 164 of the Code of 1898 is crucial. The term “inquiry” has a wide connotation. Section 4(k) states that “inquiry” encompasses any inquiry other than a trial conducted under the Code by a Magistrate or a Court. The terms “inquiry” and “investigation” must be distinguished. The former refers to proceedings before Magistrate prior to trial, while “investigation” is confined to proceedings taken by the police or by any person other than a Magistrate who is authorized in this behalf. Inquiries may be in respect of (i) offences or (ii) of matters which are not offences.

The High Court Rules and Orders distinguish explicitly between “confessions” and “statements” of accused persons. The language in Rule 1 that “Section 164 deals with the recording of statements and confessions at any stage before the commencement of an enquiry or trial” indicates that an accused may have his non-confessional statement recorded during the investigation. Rule 25.28(1)(a) of the Police Rules is clearer. It specifically discusses the accused’s statement “not amounting to confession”.

It should, however, be noted that the accused’s non confessional statement would not be on oath because clause (b) of Article 13 of the Constitution of 1973, section 5 of the Oaths Act, 1873, and section 342 of the Code of 1898 prohibit it. Section 340(2) is an exception to the general rule, which provides that an accused person shall, if he does not plead guilty, give evidence on oath to disprove the charges or allegations made against him or any person charged or tried with him at the same trial. According to Sarkar, an approver’s statement following a pardon can be recorded like that of any other witness and may be done on affirmation.

The accused’s statement under section 164 of the Code of 1898 is not substantive evidence. He must prove the facts he narrates in that statement according to Qanun-e-Shahdat.