Abstract
This article explores the evidentiary value and judicial treatment of judicial confessions under Section 164 of the Code of Criminal Procedure, 1898 (CrPC) in Pakistan. It critically examines whether a conviction can rest solely on a confession and evaluates how Pakistani courts balance between reliance on such statements and the need for corroboration to uphold the principles of justice. Drawing upon statutory provisions, judicial precedents, and comparative perspectives, the study highlights the importance of voluntariness, reliability, and corroboration in assessing confessions as a basis for conviction.
- Introduction
Judicial confessions occupy a pivotal position in Pakistan’s criminal justice system. They often serve as a crucial evidentiary link between the prosecution’s theory and the accused’s admission. Recorded under Section 164 CrPC, these confessions are intended to provide an impartial account of the accused’s statements before a magistrate.
Yet the fundamental question remains: can a judicial confession alone safely sustain a conviction?
While judicial confessions are admissible evidence, Pakistani courts have consistently emphasized that such confessions must be voluntary, truthful, and corroborated by independent evidence. This cautious approach reflects a deep-rooted judicial philosophy-that justice must not only be done but must be seen to be done.
- The Law: Section 164 CrPC
Section 164 of the CrPC empowers a magistrate, regardless of territorial jurisdiction, to record any confession or statement made during an investigation. The provision reads:
“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…” [1]
This provision establishes the procedure but not the evidentiary sufficiency of confessions. Its purpose is to safeguard the voluntariness of the confession by requiring judicial supervision.
Complementing this, Article 38 of the Qanun-e-Shahadat Order, 1984 provides that a confession is admissible only if it is made voluntarily.[2]This enshrines the principle that voluntariness is the cornerstone of admissibility-coercion, inducement, or threat can render a confession unreliable and hence inadmissible.
- Safeguards under CrPC 164
Emphasize the mandatory procedural safeguards a Magistrate must observe, as established by superior courts, to certify the confession’s voluntariness:
- Police Removal and Warning: The Magistrate must ensure all police officers are removed from the courtroom. The accused must be explicitly warned that they are not bound to make a confession and that if they do, it may be used against them as evidence.
- Reflection Time: Adequate time for reflection must be provided. Recent judgments emphasize that insufficient time (e.g., being handed back to police after only 30 minutes) casts serious doubt on the voluntary nature of the confession.
- Custody Transfer: The accused must be informed they will be sent to judicial lockup, not back to police custody, immediately after the confession is recorded. This assurance is crucial to remove the fear of further police torture or coercion.
3. The Rule of Exclusion: QSO Article 38
Article 38 of the QSO acts as the exclusionary rule. A confession is irrelevant and inadmissible if it appears to the court to have been caused by any inducement, threat, or promise from a person in authority (e.g., police, Magistrate) that gives the accused grounds to suppose they will gain an advantage or avoid an evil in reference to the proceedings. The judicial analysis of this article centers on whether the accused was truly acting out of free will.
4. Voluntariness, Duress, and Constitutional Rights
4.1. Constitutional Protection: Article 13(b) of the Constitution of Pakistan[3], grants protection against self-incrimination (“No person… shall, when accused of an offence, be compelled to be a witness against himself”). This fundamental right provides the constitutional basis for rejecting coerced confessions.
4.2. The Nexus with Torture and Duress: There is a systemic challenge in Pakistan where confessions are often retracted on the grounds of torture or illegal confinement. The courts are tasked with rigorously examining the Magistrate’s compliance with CrPC 164 to ensure the statement is not the “mere fruit of fear or coercion”. The court must apply its judicial mind to ascertain the truth and voluntary spirit of the confession.
5. The Rule of Prudence vs. Rule of Law (Retracted Confession)
The rule laid down by the Supreme Court of Pakistan:
5.1. Rule of Caution: While a retracted judicial confession (one made before the trial but denied during the trial) is legally admissible and can be taken into consideration against the maker, it is a rule of prudence (judicial caution) that conviction should not be based solely on its strength.
5.2. Corroboration Standard: The confession must be corroborated in material particulars by independent and reliable evidence. For example, a confession of murder is materially corroborated by the subsequent recovery of the murder weapon at the accused’s pointation (discovery evidence under Article 40 QSO).[4]
6. Judicial Interpretation: Whether Confession Alone Is Deemed Sufficient
Pakistani jurisprudence reflects a cautious and evolving approach. The Supreme Court has repeatedly underscored that a confession, even if judicially recorded, must be subjected to strict scrutiny.
In Zulfiqar Ali v The State (PLD 2001 SC 594), the Court held:
“It is a cardinal principle of criminal jurisprudence that a confession to be acted upon must be free from taint and must appear to be truthful. If made voluntarily and found reliable, it can form the basis of conviction, but courts must seek corroboration in material particulars.”[5]
Similarly, in Muhammad Mumtaz v The State (2012 SCMR 267), the Supreme Court reiterated:
“A confession, even if recorded by a magistrate, should be approached with great care and scrutiny. Conviction based solely on such confession is a judicial risk unless corroborated.”[6]
The judiciary’s reluctance to convict solely on confessions is rooted in a pragmatic concern-the prevalence of police coercion, custodial torture, and fabricated confessions, which have historically undermined fair-trial guarantees under Article 10-A of the Constitution of Pakistan.[7]
7. Judicial Confession Recorded on Oath (A Critical Analysis Point)
There is significant Supreme Court finding:
7.1. Conflict with Oaths Act, 1873: Recording a judicial confession on oath is technically illegal under the Oaths Act, 1873, as an accused cannot be administered an oath.[8]
7.2. Supreme Court’s Stance (Islamic Law/Tazir): The Supreme Court has held that, for offenses punishable under Tazir (discretionary punishments, as opposed to Hadd offenses), a voluntary confession recorded on oath can still be considered as evidence, provided it is found to be truthful. This ruling emphasizes that the Islamic Law of Evidence (Sharia) prioritizes the truthfulness and voluntariness of the statement over strict procedural illegality, allowing a voluntary, retracted confession to potentially form the sole basis of a conviction if the court is fully convinced of its truth. This shift in emphasis, balancing procedural law (CrPC/Oaths Act) with the spirit of Islamic jurisprudence (QSO), is an excellent area for a law journal discussion.
8. Judicial Interpretation: Whether Confession Alone Is Deemed Sufficient
Pakistani jurisprudence reflects a cautious and evolving approach. The Supreme Court has repeatedly underscored that a confession, even if judicially recorded, must be subjected to strict scrutiny.
In Zulfiqar Ali v The State (PLD 2001 SC 594), the Court held:
“It is a cardinal principle of criminal jurisprudence that a confession to be acted upon must be free from taint and must appear to be truthful. If made voluntarily and found reliable, it can form the basis of conviction — but courts must seek corroboration in material particulars.”[9]
Similarly, in Muhammad Mumtaz v The State (2012 SCMR 267), the Supreme Court reiterated:
“A confession, even if recorded by a magistrate, should be approached with great care and scrutiny. Conviction based solely on such confession is a judicial risk unless corroborated.”[10]
The judiciary’s reluctance to convict solely on confessions is rooted in a pragmatic concern-the prevalence of police coercion, custodial torture, and fabricated confessions, which have historically undermined fair-trial guarantees under Article 10-A of the Constitution of Pakistan.
9. Corroboration: A Judicial Necessity or an Act of Prudence?
Corroboration serves as the judicial safety net that ensures convictions rest on truth rather than fear. A voluntary confession may still be unreliable if obtained under subtle pressure, psychological duress, or promises of leniency.
Pakistani courts have therefore evolved a rule of judicial prudence: while corroboration is not a strict rule of law, it is a rule of practice essential to prevent miscarriages of justice.
In practical terms, corroboration may include recovery of weapons, forensic evidence, witness testimony, or circumstantial proof consistent with the confession. For instance, if an accused confesses to hiding a weapon at a specific location and that weapon is recovered accordingly, the recovery corroborates the confession and strengthens its probative value.
The Lahore High Court in Riaz v The State (PLD 2019 Lah 144)[11] held that “corroboration is not merely desirable but indispensable when human liberty is at stake.”
10. Comparative Perspective
Internationally, similar caution is observed.
In India, Section 164 CrPC mirrors Pakistan’s provision, and the Supreme Court of India in Dagdu v State of Maharashtra (AIR 1977 SC 1579) [12]ruled that a confession, though admissible, requires corroboration.
In England, the Police and Criminal Evidence Act 1984 (UK)[13] mandates safeguards for voluntariness and reliability through the “Judges’ Rules.”
Under Islamic law principles, iqrar (confession) is admissible only when made freely and without duress, aligning with the Quranic command that “there is no compulsion in religion”[14] (Surah Al-Baqarah 2:256), thereby reinforcing the moral foundation of voluntariness.
Thus, Pakistan’s judicial stance is in harmony with both comparative common-law and Islamic jurisprudence traditions.
11. Safeguards and the Magistrate’s Role
The magistrate’s role under Section 164 is not merely mechanical. Courts have held that the magistrate must:
11.1. Ensure voluntariness-by warning the accused that they are not bound to confess and that any statement may be used against them.
11.2. Allow reflection time-providing the accused sufficient time for reconsideration before recording.
11.3. Record verbatim statements-without police interference or presence.
11.4. Sign and certify-that the confession was voluntary and without inducement.
Failure to comply with these safeguards can render the confession inadmissible.
In Abdul Rehman v The State (2017 SCMR 1121), [15] the Supreme Court set aside a conviction where the magistrate failed to record compliance with these mandatory precautions.
12. False Confessions and Psychological Factors
Research in forensic psychology indicates that false confessions can result from:
- Coercive interrogation tactics
- Fatigue and fear
- Desire to avoid torture or prolonged detention, or
- Expectation of leniency
Given Pakistan’s challenges with custodial practices, judicial vigilance is indispensable. A confession extracted under psychological pressure does not merely violate due process; it undermines the legitimacy of the entire criminal justice system.
- Recent Judicial Trends
Recent Supreme Court judgments emphasize a trend toward heightened scrutiny:
In Tariq Mehmood v The State (PLD 2023 SC 112), [16]the Court observed that confession alone, without corroborative proof of voluntariness and truthfulness, cannot form the sole basis of conviction.
In Asghar Ali v The State (2022 YLR 2832), [17]the Lahore High Court quashed a conviction based on an uncorroborated judicial confession, terming it “unsafe in the eyes of law.”
These decisions mark a continued commitment to the principle that no person should be convicted on the strength of a doubtful confession.
Conclusion
Judicial confessions under Section 164 CrPC remain a powerful yet delicate piece of evidence. Pakistani courts, guided by prudence and constitutional morality, have developed a balanced approach-valuing such confessions but requiring corroboration to ensure justice.
The insistence on voluntariness and corroboration preserves the sanctity of confession as a legal instrument while guarding against its misuse as a tool of oppression.
In the final analysis, the jurisprudential wisdom of Pakistan’s courts upholds the maxim:
“It is better that ten guilty persons escape than that one innocent suffer.”
This enduring principle ensures that the scales of justice tilt towards caution, fairness, and humanity-the very essence of criminal jurisprudence.
[1] Section 164 of the CrPC
[2] Article 38 of the Qanun-e-Shahadat Order, 1984
[3] Constitution of Pakistan Article 13(b)
[4] Article 40 QSO
[5] Zulfiqar Ali v The State (PLD 2001 SC 594)
[6] Muhammad Mumtaz v The State (2012 SCMR 267)
[7] Article 10-A of the Constitution of Pakistan
[8] Oaths Act, 1873
[9] Zulfiqar Ali v The State (PLD 2001 SC 594)
[10] Muhammad Mumtaz v The State (2012 SCMR 267)
[11] Riaz v The State (PLD 2019 Lah 144)
[12] Dagdu v State of Maharashtra (AIR 1977 SC 1579)
[13] Police and Criminal Evidence Act 1984 (UK
[14] (Surah Al-Baqarah 2:256)
[15] Abdul Rehman v The State (2017 SCMR 1121)
[16] Abdul Rehman v The State (2017 SCMR 1121)
[17] Asghar Ali v The State (2022 YLR 283