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”).

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.

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

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.

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

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

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

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

Sarkar, S.C., The Code of Criminal Procedure, 10th Edn., Vol. 1, p. 770

ibid, p.17

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.”

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.

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.

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

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)

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

Announced in open Court on _____________

Approved for reporting

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