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February 28, 2017

Confession Law in Pakistan – Procedure & Types of Confession

Confession

Confession means an admission of certain facts which constitutes an offence. Statement of accused becomes confession only when recorded in compliance of the provisions of S. 164 and 364 of Cr.P.C. after observing necessary precautions and formalities.

Procedure which magistrate must adopt while recording confession

  • As soon as person is produced before a magistrate for getting his confession recorded followings are things which magistrate must observe;
  • His handcuffs should be removed
  • All the police officers shall be turned out of court room
  • He should be informed that he was before a magistrate and that whether he made any statement or not,  he will not be handed back to the police but will be sent to the judicial lockup.
  • He should be given sufficient time to ponder over the matter
  • He should be warned that he was not bound to make any statement and if he did so it may be used as evidence against him.

Questions to be asked by Magistrate

Following question must be put to person by magistrate;

  • For how long have you been with the police?
  • Has any pressure been brought to bear upon you to make a confession?
  • Have you been threatened to make a confession?
  • Has any inducement been given to you?
  • Have you been told that you will be made an approver?
  • Why are you making this confession?

Important Characteristics of Confession in light of Case Laws

Confessional statement of accused must be supported and corroborated through some independent and reliable evidence to reply upon same for his conviction (2008 P.Cr.L.J. 507)

Confessional statement of an accused when is to be believed has to be considered in its entirety and the portion of the statement favoring the accused is not to be ruled out of consideration. (PLD 2001 Quetta 33)

Confession of one accused would not be sufficient to prove innocence and non-involvement of other accused in commission of murder when it appears that confessing accusing made confession to save lives of other co-accused who happens to be his sons. (2001 P.Cr.L.J. 301)

Confessional statement cannot be used against an accused if the same is not put to him while recording his statement u/s 342 Cr.P.C. (2007 P.Cr.L.J. 276)

All questions put to the accused and his answers thereto must be recorded in writing. (PLD 1994 Pesh. 102)

Confessional statement of accused must be supported and corroborated through some independent and reliable evidence to rely upon same for his conviction. (2008 P.Cr.L.J. 507)

Exculpatory confessional statement cannot be used against co-accused for the purpose of conviction. (2008 P.Cr.L.J.)

Confessional statement of one accused can be used as a corroborative piece of evidence against other accused. (NLR 2003 A.C. 1)

Confession recorded on Oath

Confession recorded on oath is inadmissible. (PLD 2005 Pesh. 46)

Retraced Confession

Confessional statement although retracted would be sufficient piece of evidence for conviction if it is found true, voluntary and having not been obtained by coercion, inducement of torture. (PLD 2005 S.C. 168)

Confession before Police Officer

If confession is made by the accused before police officer then it becomes his duty to get his confessional statement recorded before the competent magistrate otherwise such confession is not admissible in evidence. (2008 MLD 430)

Fundamental Rights in Pakistan – Constitution of 1973

Fundamental Rights in Pakistan

Fundamental Rights are enshrined in the Constitution of Islamic Republic of Pakistan. Chapter 1 of the Constitution contains articles about the fundamental rights. Articles 8 to 28 of the constitution deals with the all fundamental rights provided to the citizens of Pakistan. Followings are the fundamental rights guaranteed to the citizens of Pakistan under constitution.

  • No person shall be deprived of life or liberty, save in accordance with law (article 9)
  • Safeguard as to arrest and detention. All arrested person must be informed of grounds of their arrest, they have right to consult and defended by lawyer of their choice.
  • Right of fair trial under article 10A
  • Slavery, forced labor is prohibited and no child under age of 14 year be employed in factory and mines.
  • There shall be protection against retrospective punishment
  • There shall be protection against double punishment and self-incrimination.
  • Freedom of movement to everyone
  • Freedom of assembly for all citizens
  • Freedom of association for all citizens
  • There shall be freedom of trade, business and profession for all citizens.
  • Freedom of speech for all citizens
  • All citizens shall have right to have access to information in all matters of public importance under article 19A.
  • Freedom to profess religion and to manage religious institution in country
  • Safeguard against the taxation for the purposes of any particular religion.
  • Safeguard as to educational institutes in respect of religion etc.
  • All citizens have right to acquire, hold and dispose of property in any part of Pakistan.
  • Protection of property rights of owners.
  • All citizens are equal and there shall be no discrimination on bases of sex etc.
  • Free and compulsory education to all children of age 5 to 16 by Government
  • No discrimination in respect of access to public places.
  • Safeguard against discrimination in services.
  • All citizens have right to preserve their particular language, script and culture

Preventive Detention in Pakistan

Preventive Detention in Pakistan

Preventive detention means to detain a person in any particular place in order to prevent any upcoming disaster. Article 10 of Constitution of Pakistan 1973, deals with the preventive detention and its procedure. It provides that no law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defense of Pakistan or any part thereof, or external affairs of Pakistan or public order or the maintenance of supplies or services.

Period of Preventive Detention

Maximum period of detention under any law must not exceed three months. For more detention, formation of Review Board is necessary who can authorize such detention beyond three months but only after describing sufficient cause for such detention. After expiry of further 3 months, Review Board again authorizes the detention for further 3 months after giving reasons.

Review Board

In case a person is detained by Federal Law, Review Board be appointed by Chief Justice of Pakistan, consists of Chairman and two other members, each of whom is or has been judge of High Court or Supreme Court.

In case person is detained by Provincial law, review board be appointed by Chief Justice of concerned High Court, consists of chairman and two other members, each of whom is or has been judge of High Court.

Procedure to be adopted by Authority

When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall (within 15 days) from such detention, communicate to such person the grounds of order and shall afford him early opportunity of making representation against the order.

Maximum limit of Preventive Detention

No person shall be detained in pursuance of any such order for more than a total period of 8 months and in case of person detained for acting in manner prejudicial to public order and 12 months in any other case.

Place of Preventive Detention

It can be any place and Review Board shall determine the place of detention of person and also fix the reasonable subsistence allowance for his family.

Duties and Responsibilities of Police in Pakistan

Duties of Police in Pakistan

Police is for the protection of people and they have many responsibilities and duties towards Public. Police Order 2002 is very good piece of legislation which needs to be implemented with letter and spirit. In Police Order 2002 followings are the duties of Police towards general public.

Attitude and responsibilities of Police towards the public

  • Behave with the members of the public with due decorum and courtesy.
  • Promote amity.
  • Guide and assist members of the public particularly the poor, disabled or physically weak and children who are either lost or find themselves helpless on the streets or other public places.
  • Aid individuals who are in danger of physical harm particularly women and children.

Duties of Police

  • To protect life, liberty and property of citizens.
  • Preserve and promote public peace.
  • Ensure that the rights and privileges, under the law, of a person taken in custody are protected.
  • Prevent the commission of offences and public nuisance.
  • Collect and communicate intelligence affecting public peace and crime in general.
  • Keep order and prevent obstruction on public roads and in the public streets and thoroughfares at fairs and all other places of public resort and in the neighborhood of and at the places of public worship.
  • Regulate and control traffic on public roads and streets.
  • Take charge of an unclaimed property and to prepare its inventory.
  • Detect and bring offenders to justice.
  • Apprehended all persons whom he is legally authorized o apprehend and for whose apprehension, sufficient grounds exist.
  • Ensure that the information about the arrest of a person is promptly communicated to a person of his choice.
  • Enter and inspect without a warrant on reliable information any public place, shop or gaming house where alcoholic drinks or narcotics are sold or weapons and illegally stored and other public places of resort of loose and disorderly character.
  • Obey and promptly execute all lawful orders.
  • Preform other duties and exercise powers as are conferred by this order, the code or any other law for the time being in force.
  • Aid and co-operate with other agencies for the prevention of destruction of public property by violence, fire or natural calamities.
  • Assist in preventing members of public from exploitation by any person or organized groups.
  • Take charge of lunatics at large to prevent them from causing harm to themselves or other members of the public and their property.
  • Prevent harassment of women and children in public places.

Role of Police in Road Accidents

Police officer shall make every effort to afford relief to people in distress situations, particularly in respect of women and children and to provide assistance to victims of road accidents and assist accident victims or their heirs or their dependents, where applicable with such information and documents as would facilitate their compensation claims and cause awareness among the victims of road accidents of their rights and privileges.

Writs in Pakistan – Kinds of Writs in High Courts

Writ

The term “Writ” has its origin from Common Law. Basically it means formal written orders issued by Superior Courts to subordinate courts or Government Officials. The purpose of write is to preserve and protects the fundamental rights of an individual.

In Pakistan Article 199 of the Constitution is about write in High Court. When there is no other remedy available to person he can file write petition under article 199 of the Constitution of Pakistan.

Types of Writ

There are many types of writes but in Pakistan followings are commonly used.

1-Writ of Habeas Corpus

The Latin Term Habeas Corpus means “to produce the body”. This write is issued to institution or prison to release the prisoner or bring it before the court.

2-Writ of Mandamus

This writ is issued for lower courts or government official in case where courts or officials are not following the laws. Simply it means an order to do an act which a person is bound by law to do.

3-Writ of Certiorari

This write is issued when a lower court made a decision which is incorrect or inappropriate in eyes of higher court. In this write higher courts are allowed to call for record and revise the decision of lower courts or officials.

4-Writ of Quo Warranto

It simply means “under what authority you are holding this office”. This write is issued when a person claims any power without legal authority behind it or when official done any act without backing of law.

5-Write of Prohibition

In circumstances where the case is outside the jurisdiction of lower courts, the higher courts can issue the Write of Prohibition to stop the lower court’s proceedings.

Cheque in Business Law | Definition & Essentials

Cheque

A cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand. – section 6

Parties to Cheque

  • Drawer
  • Drawee
  • Payee

Essentials of Cheque

  • It must be in writing
  • It must contain unconditional order
  • It must be signed by the person giving it
  • It must be payable on demand
  • The sum must be certain
  • It must be payable to specified person or bearer

Bill of Exchange | Definition, Essentials and Examples

Bill of Exchange

A bill of exchange is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay on demand or at a fixed or determinable future time a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument.

Parties to the Bill of Exchange

  • Drawer: who makes the bill
  • Drawee: who is directed to pay
  • Payee: Person to whom the payment is to be made

Essentials of Bill of Exchange

  • It must be in writing
  • It must contain an unconditional order to pay
  • It must be signed by the drawer
  • The drawee must be a certain person
  • The payee must be a certain person
  • The sum payable must be certain
  • The sum payable must be in Pak rupee

Promissory Note in Business Law | Definition & Essentials

Promissory Note

A promissory note is an instrument in writing (not being bank note or a currency note) containing an unconditional undertaking, signed by the maker, to pay on demand or at a fixed or determinable future time a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.

Parties to Promissory Note

  • Maker i.e. debor
  • Payee i.e. creditor

Essentials of promissory Note

  • It must be in writing
  • The promise to pay must be unconditional
  • It must be signed by maker
  • The maker must be certain person
  • The payee must be certain
  • The sum payable must be certain
  • The sum payable must be in Pak rupees

Negotiable Instruments | Definition, Examples & Essentials

Negotiable Instrument

A negotiable instrument means a promissory note, bill of exchange or cheque payable either to order or bearer.

Characteristics of Negotiable Instrument

  • Easy transferability
  • Rights of the holder
  • Better title to transferee
  • Unconditional promise or order
  • Certain amount
  • Presumptions

Examples of Negotiable Instruments

Bill of exchange, promissory notes, cheques, Dividend warrants, share warrants, bearer debentures, banks drafts etc.

Free Consent in Business Law | Essentials & Elements

Free consent

Two or more persons are said to consent when they agree upon the same thing in the same sense.

Consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake.

Coercion

Coercion is the committing or threatening to commit any act forbidden by the PPC, or the unlawful detaining or threatening to detain any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.

Essentials of Coercion

  • Committing or threatening to commit
  • Unlawfully detaining or threatening to detain
  • Threat may be against third party
  • Enforcement of PPC

Undue Influence

A contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other, and uses that position to obtain an unfair advantage over the other.

Essentials of undue influence

  • Position to dominate
  • Unfair advantage
  • Real or apparent authority
  • Fiduciary relationship

Fraud

Fraud means and includes any of the following acts committed by a party to a contract or with his connivance or by his agent with intent to deceive or to induce another party thereto or his agent to enter into the contract

Essentials of Fraud

  • Suggestion regarding facts
  • Active concealment of facts
  • Promise without intention of performing
  • Any act with intention to deceive
  • Any act or omission

Misrepresentation

Misrepresentation means an innocent misstatement of facts about the contract, made by one party to induce the other party to enter into a contract.