confession in Pakistani law and UK Law.docx

DADABHOY INSTITUTE OF HIGHER EDUCATION, KARACHI TOPIC OF ASSIGNMENT COMPARATIVE STUDY OF ADMISSIBILITY OF CONFESSIONAL STATEMENT IN UK AND PAKISTAN LAWS ASSIGNED BY MR. JUSTICE (R) SARMAD JALAL OSMANI SUBJECT LAW OF EVIDENCE PH.D LAW SECOND SEMESTER BY LIAQAT ALI PH.D LAW STUDENT DIHE-KARACHI TABLE OF CONTENTS History of confession Statutory law of UK Statutory law of Pakistan Recommendations Conclusion COMPARATIVE STUDY OF ADMISSIBILITY OF CONFESSIONAL STATEMENT IN UK AND PAKISTAN LAWS Abstract This is an endeavor to compare the admissibly of confessional statement in United Kingdom and Pakistani laws. Though the substantive laws are promulgated in 1984 in both the countries but both have different connotations in this connection. In UK laws the confession is well defined and is made admissible if it is made before any person whether or not in authority or otherwise. Whereas in Pakistani laws the confession made before police officer or any other persons except a Judicial Magistrate of First Class or Second class specially authorized by the provincial government, is not admissible. The confession made during police custody is not admissible. Thus laws in Pakistan are needed to be improved and amended regarding confessional statements and may be made at par with that of United Kingdom laws. Efforts are made in Anti Terrorist Activities Act, 1997 such section 21-H is incorporated but practically it is not effective. History of confession Definition Confession literally means admission. The term is derived from root word confess which means admit, acknowledge, concede or accept something. It is a term generally used in criminal laws which means acknowledgement of guilt of commission of an offence. Confession is a good source of proof of guilt of offender. The word confession has not been defined anywhere in Pakistani laws or even in the Qanoon-e-Shahadat Order, 1984. It is however defined in United Kingdom, under section 82 Part VIII, of Police and Criminal Evidence Act, 1984 that “confession” includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise. From the of above definition of UK statute the confession is admissible even if it is made before any person whether or not such person is in authority or not and whether or not it is made in words or otherwise, unlike the Pakistani Law of Evidence or Code of Criminal Procedure, 1898, wherein a proper procedure of recording the confessional statement is provided before the competent Judicial Magistrate, details shall be discussed later on in this paper. History CONFESSION IN ANCIENT LEGAL SYSTEMS The Greek and Roman Empires had used to admit the confession of an accused when a Magistrate put charge to them and they admit their guilt. Such confessional statement at the time of charge would entail a lesser punishment, awarded by the Tribune of magistrates held in public, than provided for an offence. CONFESSION IN ASIAN STATES In early Chines Confucian system confession was deemed a high value and would entail no punishment or low punishment only, where such offence were not known to the authorities. Such confessions were used to be discussed with elders to repent from sins in China. During Tang Dynasty confessions were extracted by use of torture, force, coercion and maltreatment to the accused. This procedure was continued till 1980s when for the very first time torture was prohibited in china to extract confession from the accused. Same effects are found in the Japan legal system as that of China. www.jstor.org Japan legal system is much more influenced by Chines System. The Indian legal system also emphasize upon confession in their law of Manu which concept basically needs to purify the sinner from the offence committed by him. In Pakistan legal system the confession or plea of guilt is deemed to be a ground of lesser punishment particularly in minor offence. We will discuss the details of confession related laws in Pakistan separately with a view to elaborate the nexus of Islamic Law relating to confession. Confession in Europe and United States Old European history shows that usually confessions were drawn by way of torture during investigation and main objectives were to punish the criminal. In European Legal System, unlike the Asian and other systems, usually no concession was awarded in punishing the offender who made confession. Usually during 16th Century, European states used torture as a legal tool to extract confession from the offender which lasted till 18th Century by an abolitionist enlightenment scholars’ movement. www.britannica.com/confession-law last retrieved on 2.11.2018. In inquisitorial judicial system of Europe, the judge has no authority to extract the confession by any means unlike the inquisitorial system of early pope. Later on in the middle ages, the judges in Europe had authority to even reject the evidence or confession obtained by use of torture or coercion. The United States of America adopted most of the law of European States initially but later on it adopted and developed its own laws and became known as American Laws. Admissibility of confession by use of torture was deemed to be violation of Fundamental Human Rights, as the same were protected under the US Constitution. All the laws of US were revolving around the concept of Human Rights thus torture used in extracting confession were declared illegal and unlawful and were not relied upon by the US judicial system. In 1791 US constitution’s Fifth Amendment; it was clearly mentioned that “……no one shall be compelled ………to be witness against himself….” this amendment was only enforceable upon Federal Agencies and courts but not binding upon States of USA until it was held by the US Supreme Court in Hopt v/s Utah case, 1884 and prohibited all institutions in US to prohibit them from use of torture for extracting the confession from offenders in any manner whatsoever. Thus during 1930’s to 1960’s period a number of appeals were decided by US Supreme Court whereby reversed a great deal of convictions awarded on conviction extracted by torture or coercion. Unlike many other legal systems, currently the US law permit the promised confession to be admissible in evidence, whereby a reduced conviction is awarded by the courts, commonly known as plea arrangement. The plea arrangement is made during initial inquiry or investigation by police or the prosecutor where accused agrees to disclose the full and true account of commission of offence to the authorities on promise that he shall be awarded lesser punishment than that of maximum one provided by the law for the offence committed. Islamic legal system Islamic Law is based on primary and secondary sources; Primary Sources are the Holy Quran and the Sunnah whereas the secondary sources are Ijma, Qias, Istehsan, Istiswab, Maslaha Mursala etc. Both the sources recognize the admissibility of confessional statement thereby entail punishment. In Islamic law where a person admits his spiritual guilt, called TAWBA, Allah has ordained that such person shall not only be forgiven but his sins shall be converted into good deeds on dooms day. The Holy prophet has awarded punishment of Hadd upon sinners who confessed before the prophet (peace be upon him). Islamic Law, however, does not provide that any leniency is shown to the accused who made confession. Holy Prophet (Peace be upon him) has awarded punishment of Hadd to Maiz Al Aslami, who confessed the guilt of commission of Zina. This notion is discussed in almost all books of Islamic Fiqh in the chapter of Al-Iqrar. Pakistan Legal System In Pakistani legal system, the term confession is not defined anywhere. However, the term is used in the Code of Criminal Procedure, 1898 (Cr.P.C) and the Qanoon-e-Shahadat Order, 1984. The Cr.P.C provides that the confessions shall be recorded in immediate presence of a Judicial Magistrate of First Class or Second Class especially empowered by the Government. There are certain checks and balances that the confession is made voluntary and without any undue influence, coercion, promise, threat etc. Lest the confessional statement has no value. The Judicial Magistrate shall record is during course of investigation but not later stage. He shall also certify that the statement so recorded is made voluntary and free from any threat and promise. Statutory law of UK The Police and Criminal Evidence Act, 1984 provides under section 76 that in any proceedings a confession made by accused may be used in evidence against him to the extent of its relevancy. The confession made before police officer is also admissible subject to conditions as provided under section 76 sub section 2 and section 8 of the said Act, 1984 that the confession is obtained by operation which includes torture, inhuman or degrading treatment use or threat of violence whether or no amounting to torture. The courts have to consider such statement recorded by police during investigation or interrogation, more vigilantly and by applying judicial mind keeping in consideration of the facts and circumstances of each case differently. Under section 176-A, the statement of an accused may be used against co.accused in the same proceedings subject to its being made without operation, and must be relevant in the matter, as discussed above. An special provision is incorporated in the Act, 1984 which is section 77 confessions by mentally handicapped accused. The court has ample powers provided under section 76 (2) of Police and Criminal Evidence Act, 1984 to exclude the confession evidence obtained by operation and thus declare it to be unreliable. Section 82 define that confession includes: Any statement wholly or partly adverse to the person who made it Whether made to a person in authority or not; Whether made in words or otherwise. From above definition it is clear that the statement made before any person which amounts to a confession is admissible in evidence subject to the restrictions mentioned in section 76 (2) of Police And Criminal Evidence Act, 1984. An exculpatory evidence is not a confession and can not be deemed to fall under provisions of section 76 of the Act, 1984. When such confession made by accused or collected by prosecution, the accused has right to challenge it in the vires of section 76 of the Act, 1984, then the burden lies upon prosecution that the confession was free from operation. Such view was also held in case of R v Fulling 1987 2 All E.R. 65. following may be exception to the confession made before any person: Inducement used to obtain confession from an accused. Irrational, aggressive questioning by interrogator during interrogation. Hostile questioning by the interrogator from accused. Wrong or unjustified interpretation of the words actually said by the accused to twist the meaning of the words or sense of what accused actually said. Recording of confession without due caution to accused Failure of police to provide a sufficient rest period to accused prior to interview. Failure to provide or allow to consult a council/solicitor to accused. Where confession is obtained by breaches of European Convention on Human Rights. Breached of Codes of Practice under Police And Criminal Evidence Act, 1984. Any other reason to be believed to prejudice the accused during interview by investigation officer or prosecutor. Statutory law of Pakistan The concept of confessional statement is provided under section 164 Procedure Criminal Code 1898 whereas the procedure is provided under section 364 of the same code. Section 164 Cr.P.C provides that the Magistrate of First Class or a Magistrate of second class duly authorized by provincial government shall be competent to record the statement of an accused. This section excludes any other person whether or not police officer or any other one from recording confessional statement of an accused. The Quanoon-e-Shahadat Order, 1984 provides conditions for admissibility of a confessional statement made by an accused person. Article 37 of Quanoon-e-Shahadat Order 1984 states that when confession is made due to threat, inducement or promise etc it shall be irrelevant and inadmissible in the court of law. Unlike Unite Kingdom laws, the provisions of Article 38 prohibits that proving any confession made to a police officer during course of investigation. Whereas in UK laws, the statement made before police during investigation or interrogation shall be proved as against the maker, as we discussed hereinabove. The prosecution can put such statement, in UK, before the court with affirmation that the statement was given by the accused without any coercion, compulsion or operation. In Pakistani law there is no such provision to make the confessional statement of accused made before police is admissible. Under the prevalent law of Pakistan, the statement of accused is admissible in evidence against himself if it is made before the Judicial Magistrate of First class or Second Class specially authorized by Provincial Government. Under Article 16 Quanoon-e-Shahadat Order, 1984 states that an accused can be competent witness against an accused except in Hudood cases. This proposition is qualified with Article 129 Illustration (b) of the same Ordinance that an accomplice is unworthy of credit unless he is corroborated in material particulars. Section 337 and 338 of Cr.P.C provide procedure of acceptance of statement of an accomplice during trial of the criminal case. Wherein it is stated that the incharge of the prosecution may tender pardon on certain terms and conditions to be fulfilled by the accomplice to give full and true version of the commission of an offence resulting his acquittal conditionally. If the accomplice did not give full and true version of commission of offence then he may be convicted on the same offence upon his own such statement. Recommendations The above discussion it has come on surface that the UK law provide permission to prove the statement of accused made before any person whether in authority or not including a police as admissible and can be proved in the court of law. Thus in Pakistani laws such amendments are required to be made with precautionary measures by adopting logical and reasonable conditions for acceptance of the confessional statement made before police officer as is made in the Anti Terrorist Activities Act, 1997 under section 21-H that confession made before District Superintendent of Police during investigation may be admissible if court deems it fit. Though the conditions are same as that of for a Judicial Magistrate that the DSP shall warn the accused that he is not bound to make such statement and if he makes it that shall be used against him in the trial. The DSP shall also make a memorandum at the foot of the statement. Conclusion To made a confessional statement admissible in evidence, which is recorded during investigation, there is a dire need of law to be amended with strict terms and conditions. The environment of interrogation and investigation be upgraded with modern devices and equipment as such the same come in the ambit of evidence extracted under Article 164 of Quanoon-e-Shahadat Order, 1984.