Case law on recording of 164 crpc statement in 9c
The case of Muhammad Asghar Ali Shah vs. The State revolves around allegations stemming from FIR No. 1193/2022 dated 3.11.2022, registered at Police Station Fareed Town, District Sahiwal, under section 9(c) of the Control of Narcotic Substances Act, 1997. Muhammad Asghar Ali Shah, along with his co-accused Nadia Rubab, was accused of transporting a substantial quantity of narcotics in Car No. AKT-1498.
Muhammad Asghar Ali Shah claimed innocence, asserting that the narcotics were planted by the police and that the case against him was false. He attempted to have his version recorded by the Magistrate under section 164 of the Code of Criminal Procedure, 1898 (Cr.P.C.), which allows for the recording of statements and confessions.
However, the Magistrate declined his request, citing that section 164 Cr.P.C. only allows for the recording of confessions and not other types of statements. This decision led Muhammad Asghar Ali Shah to file a writ petition under Article 199 of the Constitution of Pakistan, 1973, challenging the Magistrate's order (Impugned Order) dated 28.11.2022.
The Lahore High Court, Multan Bench, heard the arguments from both sides. Muhammad Asghar Ali Shah's counsel argued that under Article 4 of the Constitution, he had the right to be treated in accordance with the law, and section 164 Cr.P.C. did not explicitly exclude recording statements other than confessions. On the other hand, the Assistant Advocate General opposed the petition, asserting that section 164 Cr.P.C. indeed limits the Magistrate to recording confessions alone.
After deliberation, the Lahore High Court delivered its judgment, overturning the Impugned Order. The Court ruled that section 164 Cr.P.C. does not prohibit the recording of an accused's statement that does not amount to a confession. It highlighted that such statements, while not substantive evidence, can be admitted under certain provisions of the Evidence Act for consideration.
Thus, the Court's decision allowed Muhammad Asghar Ali Shah the opportunity to have his non-confessional statement recorded by the Magistrate, affirming his right to due process and fair treatment under the law. This case underscores the judicial interpretation and application of procedural laws concerning the rights of accused individuals during criminal investigations in Pakistan.
Judgement
reo. HCJDA 38
JUDGMENT SHEET
LAHORE HIGH COURT, MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
Writ Petition No. 3962/2023
Muhammad Asghar Ali Shah
Vs.
The State etc.
JUDGMENT
Date of hearing:
15.6.2023
For the Petitioner:
Mr Bilal Saeed, Advocate.
For the Respondents:
Mr Sanam Fareed Khan Baloch, Assistant Advocate
General, and Mr Muhammad Ali Shahab, Deputy
Prosecutor General.
Tariq Saleem Sheikh, J. – The Petitioner is one of the
accused in case FIR No.1193/2022 dated 3.11.2022 registered at Police
Station Fareed Town, District Sahiwal, for an offence under section 9(c) of
the Control of Narcotic Substances Act, 1997. The allegation against him is
that he and his co-accused, Nadia Rubab, were transporting a huge quantity
of narcotics in Car No.AKT-1498. The Petitioner claims it is a false case,
and the police have planted the narcotics on them. According to the
Petitioner, the Investigating Officer did not pen his version, so he applied
to the Magistrate Section-30, Sahiwal, under section 164 of the Code of
Criminal Procedure, 1898 (hereinafter referred to as the “Code of 1898” or
“Cr.P.C.”), to record it. He declined his request on the ground that an
accused can only have his confession recorded under that provision. The
Petitioner has challenged the Magistrate’s order dated 28.11.2022
(the “Impugned Order”) before this Court through this petition under
Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973
(the “Constitution”).
2.
Mr Bilal Saeed, Advocate, contends that the Petitioner has a
right to be treated in accordance with the law under Article 4 of the
Constitution. Section 164 of the Code of 1898 does not exclude an accused,
Writ Petition No. 3962/2023
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and the Petitioner has every right to have his statement recorded by the
Magistrate. The counsel argues that the Impugned Order is perverse and
not sustainable.
3.
Mr Sanam Fareed Khan Baloch, Assistant Advocate General,
strongly opposes this petition. He contends that under section 164 of the
Code of 1898, a Magistrate may only record an accused’s confession and
no other statement. The Petitioner wishes to use section 164 to have his
counter-version recorded in FIR No.1193/2022, which is impermissible.
Opinion
4.
The Code of 1898 was enacted during British Rule to
consolidate and amend the law relating to criminal procedure1
in the IndoPak sub-continent. Pakistan adopted it after the Partition, and it is still in
force with some amendments. India followed it until the enactment of the
Code of Criminal Procedure, 1973 (the “Indian Code”). Section 164 of the
Code of 1898 empowers certain Magistrates to record statements and
confessions. Incidentally, it is analogous to section 164 of the Indian Code.
Its relevant portion is reproduced below for ready reference:
164. Power to record statements and confessions.– (1) Any
Magistrate of the First Class and any Magistrate of the Second Class
specifically empowered in this behalf by the Provincial Government
may, if he is not a police officer, record any statement or confession
made to him in the course of an investigation under this Chapter or at
any time afterwards before the commencement of the inquiry or trial.
(1A) Any such statement may be recorded by such Magistrate in the
presence of the accused, and the accused given an opportunity of crossexamining the witness making the statement.
(2)
Such statement shall be recorded in such of the manners
hereinafter prescribed for recording evidence as is, in his opinion, best
fitted for the circumstances of the case. Such confessions shall be
recorded and signed in the manner provided in section 364, and such
statements or confessions shall then be forwarded to the Magistrate by
whom the case is to be inquired into or tried.
(3)
…
Explanation.– It is not necessary that the Magistrate receiving and
recording a confession or statement should be a Magistrate having
jurisdiction in the case.
5.
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
1
Preamble of the Code of Criminal Procedure, 1898.
Writ Petition No. 3962/2023
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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 oppression2
or to fix
him to it when it is feared that he may resile afterwards or tamper with it.3
6.
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.4
7.
The Code of Criminal Procedure of 1872 defined the trial as
“the proceedings taken in court after a charge has been drawn up and
includes the punishment of the offender.” However, this definition was
omitted from the subsequent Codes.5
In Hema Singh and another v. The
Emperor (AIR 1929 Patna 644), it was held that a “trial” is a judicial
proceeding before the court which ends in conviction or acquittal. The trial
commences when a charge is framed under Chapter XIX of the Code of
1898. In Haq Nawaz and others v. The State and others
(2000 SCMR 785), the Supreme Court of Pakistan explained:
“From a review of the above provisions of the Code [of 1898], it is quite
clear to us that taking of cognizance of a case by a court is not
synonymous with the commencement of the trial in a case. Taking
cognizance of a case by the court is the first step, which may or may not
culminate in the trial of the accused. Therefore, the trial in a criminal
case does not commence with the taking of the cognizance of the case by
2 Basu’s Commentary on Code of Criminal Procedure, 14th Edn., p.1099
3
Sarkar, S.C., The Code of Criminal Procedure, 10th Edn., Vol. 1, p. 770
4
ibid, p.17
5
ibid, p.18
Writ Petition No. 3962/2023
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the court. A careful examination of the above provisions in the Code
makes it clear that until the charge is framed and copies of the material
(statement of witnesses recorded under sections 161 and 164 Cr.P.C.,
inspection note of the first visit to the place of occurrence and recoveries
recorded by investigating officer, if the case is initiated on police report,
and copies of complaint, other documents filed with complaint and
statements recorded under section 200 or 202 if it is a case upon
complaint in writing) are supplied to accused free of charge and he is
called upon to answer the charge. In the case before us, the challan was
filed before the court on 5.1.1991, and the accused were also summoned
to appear before the court on 6.1.1991, which may amount to taking of
the cognizance of the case by the court. However, in view of the
provisions of the Code referred to above, these steps could not amount to
commencement of the trial of the appellant.”
8.
As adumbrated, section 164 of the Code of 1898 empowers
the Magistrate to record “any statement or confession” while the
investigation is underway. However, it does not say which individual.
Again, a “statement” may or may not amount to a confession, or it may be
partially confessional and partially exculpatory.
9.
In Jogendra Nahak and others v. State of Orissa and others
(AIR 1999 SC 2565), the question arose as to whether a witness could
approach a Magistrate on his own initiative and have his statement
recorded under section 164 of the Indian Code. The facts of the case were
that four persons, claiming to be witnesses to an occurrence that was the
subject of a criminal proceeding, petitioned the High Court for an order
directing a Magistrate to record their statement under section 164. The
High Court dismissed the writ petition with costs, holding that the
petitioners were playing tricks to help a charge-sheeted accused. They did
not file it to secure fair justice. It was contended before the Supreme Court
that the Magistrate could not inquire into the motive of the witnesses when
they came to him for a statement under section 164. He should have left it
to the trial court to judge their trustworthiness. The Supreme Court ruled
that although the language of section 164 of the Indian Code is expansive,
an individual cannot go before a Magistrate and demand that he record the
statement he wishes to make. He must be sponsored by the investigating
agency. It stated:
“In the scheme of the above provisions, there is no set or stage at which a
Magistrate can take note of a stranger individual approaching him
directly with a prayer that his statement may be recorded in connection
with some occurrence involving a criminal offence. If a Magistrate is
obliged to record the statements of all such persons who approach him,
the situation would become anomalous, and every Magistrate court will
be further crowded with a number of such intending witnesses brought
up at the behest of accused persons
Writ Petition No. 3962/2023
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The Supreme Court of India further stated:
“The contention that there may be instances when the investigating
officer would be disinclined to record statements of willing witnesses
and therefore such witnesses must have a remedy to have their version
regarding a case put on record, is no answer to the question whether any
intending witness can straightaway approach a Magistrate for recording
his statement under Section 164 of the [Indian] Code. Even for such
witnesses provisions are available in law, e.g. the accused can cite them
as defence witnesses during trial, or the court can be requested to
summon them under Section 311 of the [Indian] Code.6 When such
remedies are available to witnesses (who may be sidelined by the
investigating officers) we do not find any special reason why the
Magistrate should be burdened with the additional task of recording the
statements of all and sundry who may knock at the door of the court with
a request to record their statements under Section 164 of the [Indian]
Code. On the other hand, if door is opened to such persons to get in and
if the Magistrates are put under the obligation to record their statements,
then too many persons sponsored by culprits might throng before the
portals of the Magistrate courts for the purpose of creating record in
advance for the purpose of helping the culprits.”
10.
In
Muhammad Sarfraz Khan
v. The Crown
(PLD 1953 Lahore 495), a Division Bench of this Court held that a
statement under section 164 of the Code of 1898 may be recorded not only
at the instance of police but also at the request of any aggrieved person or
the witness himself. This view was followed in Mst. Mumtaz Akhtar v.
Illaqa Magistrate, Chakwal, and others (1997 MLD 3021); Mst. Amina
Bibi v. Sessions Judge, Layyah, and others (1999 PCr.LJ 2044);
Muhammad Yousaf v. The State and others (2002 YLR 397); and Mst.
Mansab Mai v. The State (2005 YLR 1403). In Abdul Sattar and another
v. The State and others (2018 YLR 977), the Sindh High Court held that
the statement of a witness under section 164 of the Code of 1898 is
ordinarily recorded by a Magistrate when he is sent by the investigating
agency so that he cannot retract afterwards. When a witness goes directly
to a Magistrate and asks that his statement be recorded, the Magistrate has
the discretion to accept or decline his request, as indicated by the word
“may” in section 164. However, he should apply his judicial mind while
exercising such discretion and consider whether this would be proper and
foster justice. To that end, he should go over the case diary to identify the
current status and direction of the probe. There may be a situation where a
witness working in concert with the accused may try to exploit section 164
to skew the investigation and prevent the truth from being revealed.
Conversely, a dishonest investigating officer may be attempting to bury the
6
Section 311 of the Indian Code is pari materia with section 540 of the Code of 1898
Writ Petition No. 3962/2023
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truth by not examining the key and crucial witness to the occurrence.
Closing the window of section 164 in such instances could be disastrous.
11.
The courts in Pakistan have consistently held that anyone,
including a witness, may approach the Magistrate for a statement under
section 164 of the Code of 1898 on his own without involving the police.
The Indian Supreme Court has a different viewpoint on this matter. True,
the principles established by the Indian Courts are not binding on the courts
in Pakistan and merely have persuasive value; yet, we may need to
examine which of the two perspectives is more appropriate. We are not
undertaking that exercise in this case for two reasons: first, that issue does
not arise directly in these proceedings, and second, because a coordinate
Division Bench rendered the judgment in Muhammad Sarfraz Khan, only a
Larger Bench can re-examine it.
12.
The Evidence Act of 1872 did not define “confession”.
Qanun-e-Shahadat, 1984 (“QSO”) does not do that either. In
Muthukumaraswami Pillai and others v. King Emperor, (1912) I.L.R. 35
Mad. 397 at p. 490, Abdul Rahim J. stated: “Whether a statement is to be
called a confession or not depends, not merely on the nature of the
statement itself, but on the use that is sought to be made of it.” The courts
in the Indo-Pak sub-continent for a long time understood the aforesaid
concept in terms of Article 22 of Stephen’s Digest of the Law of Evidence.
According to that definition, “confession is an admission made at any time
by a person charged with a crime, stating or suggesting the interference that
he committed that crime”. However, in Pakala Narayana Swami v.
Emperor (AIR 1939 PC 47), the Privy Council did not accept it for the
purposes of the Evidence Act of 1872 in India. Lord Atkin observed:
“… no statement that contains self-exculpatory matter can amount to a
confession, if the exculpatory statement is of some fact which if true
would negative the offence alleged to be confessed. Moreover, a
confession must either admit in terms the offence, or at any rate
substantially all the facts which constitute the offence. An admission of a
gravely incriminating fact, even a conclusively incriminating fact is not
of itself a confession, e.g., an admission that the accused is the owner of
and was in recent possession of the knife or revolver which caused a
death with no explanation of any other man’s possession.”
Writ Petition No. 3962/2023
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13.
The Supreme Court of Pakistan approvingly cited Pakala
Narayana Swami’s case in Raza v. The State7
and further observed:
“There is a distinction between admissions and confessions. It would
appear that confessions are a species of which admission is the genus.
All admissions are not confessions, but all confessions are admissions. If
the statement by itself is sufficient to prove the guilt of the maker, it is a
confession. If, on the other hand, the statement falls short of it, it
amounts to an admission. No statement, which contains self-exculpatory
matter, can amount to a confession, if the exculpatory statement is of
some fact which, if true, would negate the guilt. A confession is thus an
admission by an accused in a criminal case, and if he does not
incriminate himself, the statement cannot be said to be a confession.”
14.
In Aghnoo Nagesia v. State of Bihar (AIR 1966 SC 119), the
Supreme Court of India ruled that a “confession” may be defined as an
admission of guilt by a person charged with the crime. A statement
containing self-exculpatory matter cannot be regarded as a confession if the
exculpatory statement is of some fact which, if true, would negate the
offence alleged to be confessed. If an accused’s admission is to be used
against him, the whole of it must be tendered in evidence. If part of the
admission is exculpatory and part inculpatory, the prosecution cannot use
only the inculpatory component as evidence. The Supreme Court further
stated:
“Now, a confession may consist of several parts and may reveal not only
the actual commission of the crime but also the motive, the preparation,
the opportunity, the provocation, the weapons used, the intention, the
concealment of the weapon and the subsequent conduct of the accused. If
the confession is tainted, the taint attaches to each part of it. It is not
permissible in law to separate one part and to admit it in evidence as a
non-confessional statement. Each part discloses some incriminating fact,
i.e., some fact which by itself or along with other admitted or proved
facts suggests the inference that the accused committed the crime, and
though each part taken singly may not amount to a confession, each of
them being part of a confessional statement partakes of the character of a
confession. If a statement contains an admission of an offence, not only
that admission but also every other admission of an incriminating fact
contained in the statement is part of the confession. If proof of the
confession is excluded by any provision of law such as sections 24, 25
and 26 of the Evidence Act,8
the entire confessional statement in all its
parts, including the admissions of minor incriminating facts, must also be
excluded, unless proof of it is permitted by some other section such as
section 27 of the Evidence Act.9
Little substance and content will be left
in sections 24, 25, and 26 if proof of admissions of incriminating facts in
a confessional statement is permitted.”
7 Crl. Petition Nos.1124-L of 2015 and 1120-L of 2015 decided on 25.06.2020
(Available at: Crl.p_1124_I_2015.pdf)
8
See Articles 37 to 39 of Qanun-e-Shahdat, 1984.
9 See Article 40 of Qanun-e-Shahadat, 1984.
Writ Petition No. 3962/2023
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15.
In India, the courts’ previous view was that the expression
“statement” in section 164 referred to the statement of a witness rather than
that of an accused, whether or not it amounted to a confession. However,
subsequent cases held that it covers a witness’s statement as well as an
accused’s confessional and non-confessional statements. The distinction is
not between persons making the “statement” but in the mode of recording a
statement and a confession.10
16.
The principle that emerges from the above discussion is that
section 164 of the Code of 1898 does not prohibit the Magistrate from
recording the statement of an accused not amounting to a confession. We
find further support for this view in Chapter 13 of Volume II of the Rules
and Orders of the Lahore High Court and Rule 25.28(1)(a) of the Police
Rules, 1934. Chapter 13 is captioned “Confessions and Statements of
accused persons” and Rule 1 thereof reads as follows:
Statements of accused at various stages explained.– The provisions of
sections 164, 342 and 364 of the Criminal Procedure Code [of 1898]
with regard to the confessions and statements of accused persons should
be carefully studied. Section 164 deals with the recording of statements
and confessions at any stage before the commencement of an enquiry or
trial. Section 342 deals with the examination of accused persons during
the course of the enquiry or trial. Section 364 prescribes the manner in
which the examination of an accused person is to be recorded.
Rule 25.28(1)(a) of Police Rules, 1934 is reproduced below:
25.28 Statement recorded by Magistrates.– (1) The circumstances
under which police officers may require a statement to be recorded by a
Magistrate are as follows:
(a)
The statement, made in the course of an investigation by a
witness or an accused person, and not amounting to a confession, may be
recorded by a Magistrate under section 164 Code of Criminal Procedure
[1898], in order that it may be available as evidence at a later stage. Such
statements may be recorded in any of the manners prescribed for
recording evidence.
17.
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”.
10 Sarkar, S.C., The Code of Criminal Procedure, 10th Edn., Vol. 1, p. 769
Writ Petition No. 3962/2023
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18.
It should, however, be noted that the accused’s nonconfessional 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.11
19.
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. In Ghulam Hussain v. The
King (PLD 1949 PC 326), the Privy Council held that a statement under
section 164 not amounting to confession can be used against the maker as
an admission under sections 18 to 21 of the Evidence Act.12 The relevant
excerpt is reproduced below:
“The question here is quite different. It is whether a statement made
under section 164, which does not amount to a confession, can be used
against the maker as an admission within the purview of sections 18 to
21 of the Indian Evidence Act. This question has been raised in courts in
India, and it has been answered in the affirmative – see Golam
Muhammad Khan v. The King Emperor (1 LR 4 Pat. 327), Abdul Rahim
and others v. The King Emperor [A1R (1925) Cal. 926] and Muhammad
Bakhsh v. The King Emperor [AIR (1941) Sind 129]. Their Lordships
consider that the affirmative answer is right. The fact that an admission
is made to a Magistrate while he is functioning under section 164 of the
Code of Criminal Procedure [1898] cannot take it outside the scope of
the Evidence Act. [co-accused] Fatehsing’s statement under section 164
of the Code of Criminal Procedure [1898] contained admissions provable
under the Evidence Act, and therefore, the learned Judge was right in
reading it to the jury as evidence in support of the charge against
Fatehsing himself, having made it quite clear that the jury was not to take
it into consideration against the appellant.”
20.
In the present case, the Magistrate Section-30, Sahiwal, has
misconstrued the law while refusing to record the Petitioner’s statement
under section 164 of the Code of 1898. Therefore, we accept this petition
and set aside the Impugned Order dated 28.11.2022. The Magistrate is
11 Sarkar, S.C., The Code of Criminal Procedure, 10th Edn., Vol. 1, p. 770. He cites Rambharose
Narbadaprasad Kachhi v. Emperor (AIR 1944 Nagpur 105); Emperor v. Hussaina
(AIR 1933 Lahore 868); and Emperor v. Amar Singh (AIR 1938 Lahore 796).
12 See Articles 31 to 34 of Qanun-e-Shahdat, 1984. Writ Petition No. 3962/2023
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directed to consider his request and proceed in accordance with the law
elucidated above.
(Sadiq Mahmud Khurram)
(Tariq Saleem Sheikh)
Judge
Judge
Announced in open Court on _____________
Approved for reporting
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