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LAW OF EVIDENCE-I

LLB VII

SUBMITTED TO: MAA’M ZAHISH FARID

SUBMITTED BY: MARIA MALIK

ROLL# LLB-008-2016

TOPIC: Principle nemo tenetur prodere seipsum and the

Penal laws of Pakistan

DATE OF SUBMISSION: 02-10-2019

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ABSTRACT:

An accused is having range of rights in criminal proceedings. Self-Incrimination is one of the

major liberties is provided to an accused by the law. So, it is said the privilege against self-

incrimination is a core right of the defendant. The privilege against self-incrimination is in

correlation with the idea that no one is obliged to risk his life or liberty by answering the

questions in the course of judicial proceedings.

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TABLE OF CONTENT

PRINCIPLE NEMO TENETUR PRODERE SEIPSUM……………………………………….04

ORIGIN OF PRINCIPLE NEMO TENETUR PRODERE SEIPSUM…………………………04

PRIVILEGE AGAINST SELF-INCRIMINATION…………………………………………….04

HISTORICAL AND INTERNATIONAL CONTEXT…………………………………………04

INTERNATIONAL STATUS………………………………………………………………….05

ARTICLE 13 OF THE CONSTITUTION AND SELF-INCRIMINATION………………….06

RECOGNITION IN PAKISTAN’S CRIMINAL LAWS……………………………………...06

SCOPE OF ARTICLE 15 OF QANOON-E-SHAHDAT, 1984 AND THE MAIXM………….07

ARTICLE 15 IS CONTRARY TO ARTICLE 13 OF THE CONSTITUTION……………….07

AN ACCOMPLICE IS GRANTED PROTECTION UNDER ARTICLE 15………………….08

CASE REFERENCE…………………………………………………………………………...08

CONCLUSION…………………………………………………………………………………09
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PRINCIPLE NEMO TENETUR PRODERE SEIPSUM:

It is a legal maxim in Latin. It states that no one is bound to incriminate or accuse himself.

ORIGIN OF PRINCIPLE NEMO TENETUR PRODERE SEIPSUM:

The maxim had its origin in a protest against the unfair method of investigating an accused

person where he was asked about his direct connection with crime, the ease with which he was

asked and considered as an inquire character and to push him for confession or to admire the

statement whether that is right or wrong. Throckmorton, and Puritan minister, made the system

for to abolish this way of evidence. Later on, courts admired it silently in trials. With the passage

of time states with one accord, made a denial of the right to question an accused person a part of

their fundamental law, so that a maxim, which in England was a mere rule of evidence, became

clothed in the country with the impregnability of a constitutional enactment (USLegal, n.d).

PRIVILEGE AGAINST SELF-INCRIMINATION:

The privilege against self-incrimination guarantees that men and women cannot lawfully be

required to answer questions that will aid in convicting them for crime. The privilege regarded as

both fundamental to human liberty and venerable in the history of the development of civil

rights. This principle encourages a person not to engage himself in a trouble and to protect his

liberty. It, particularly contributes to protect the integrity of the individual in official procedure.

HISTORICAL AND INTERNATIONAL CONTEXT:

 HISTORICAL BACKGROUNG: The principle “Privilege against Self-Incrimination”

is having its origin from the development of common law. The true origins of the

common law privilege are to be found not in the high politics of the English revolutions,
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but in the rise of adversary criminal procedure at the end of the eighteenth century. The

privilege against self-incrimination at common law was the work of defense counsel. the

first unequivocal expressions of the privilege against self-incrimination occurred during

the constitutional struggles of the seventeenth century, specifically in the dispute over the

legality of the ex officio oath used by the English courts (Helmholz, 1990).

 INTERNATIONAL STATUS:

Most important international acts and the largest number of contemporary national acts

foresee the privilege against self-incrimination as a part of the rights and opportunities of the

defendant in criminal proceedings. There are some international laws discussed below:

 ICCPR Article 14, al.3, (g) contains this privilege with other provisions having

determined that “no one is to be compelled to testify against himself or to confess guilt”,

ICCPR, the application of the privilege against self-incrimination does not restrict only to

non-answering a specific question but also in his non-compelling to plead guilty.

 ACHR American Convention on Human Rights provides the same text Article 8 (2)

(g) contains a special Section sub part (3) which explicitly provides that “A confession of

guilt by the accused shall be valid only if it is made without coercion of any kind”.

 ECHR: The privilege against self-incrimination is not present in an explicit way in the

text of ECHR but is considered as a part of the fair trial principal of the ECHR.

 AMERICAN CONVENTION: In the legal system of USA, the privilege against self-

incrimination is foreseen in the Fifth Amendment of the Constitution which states that the

U. S. Constitution provides, “No one, in any kind of criminal proceedings, shall not be

compelled to testify against himself” (Bilalli-Zendeli, 2015).

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ARTICLE 13 OF THE CONSTITUTION AND THE PRINCIPLE OF NON “SELF-

INCRIMINATION”, RECOGNITION IN PAKISTAN’S CRIMINAL LAWS:

ARTICLE 13 (b)States that: Protection against self-incrimination. “No person shall, when

accused of an offence, be compelled to be a witness against himself” (Butt, 2016).

This Article is actually assuring the prohibition against the self-incrimination. The above maxim

will also be emphasized with its systematic incorporation among rules that are of such decisive

importance to the penal law. If we analyze clause (b) of Article 13 of Constitution it may resulted

out by giving three components which are: It is a right pertaining to a person accused of an

offence, protection against compulsion to be a witness, protection against such compulsion

resulting in his giving evidence against himself. The first element shows that this Article is

giving privileged only to an accused but where an accused person incriminates himself

voluntarily, or may compel then this situation does not fall under Article 13 of Constitution. The

privilege against self-incrimination applies only within the context of criminal proceedings.

Secondly, it shows that “To be a witness” is not equivalent to “furnishing evidence” it requires to

produce the document which may relevant at trial to determine the guilt of the accused.

1983 F.S.C. 173: Accused is competent to defend himself as witness but he could not be

compelled to depose against himself. Option lies on accused to depose on oath or not. Therefore,

if accused want to appear as a witness he can Provision of Article 13 is not applicable.

So, it is realized that lack of evident placement in Pakistan Criminal Courts has been changed at

intervals. The constitution of Pakistan is clear, explicit and direct. Some provisions of CRPC

aims to protect the right of defendant and securing his right against self-incrimination.
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SCOPE OF ARTICLE 15 OF QANOON-E-SHAHDAT, 1984 AND THE MAIXM:

ARTICLE 15 states that: “Witness not excused from answering on ground that answer will

criminate Provided that no answer shall be compel to give him any arrest, prosecution be proved

against him in any criminal proceeding, except in case of giving false evidence by answer”. The

scope of above mention Article is giving right of self-incrimination. Witness enjoys absolute

privilege as the ultimate object of dispensing justice may rest on his testimony which in all

probability must convey truth relating to the inquiry but an intention on witness should not be

malice. In Common Law the above maxim was applicable, so that a witness was entitled to claim

privilege in respect of any evidence which might lead him in criminal conviction. The purpose

was encouraging persons to come forward with evidence in courts. The Common Law privilege

is altogether abolished by Article 15 but there is a safeguard for witness to the effect that it

would not be against him except in false evidence by such answer (Jamil, n.d)

PLD Kar. 125: The position before 1984 order was if a statement was voluntarily made in court,

then that could be used as evidence against person making it in any criminal or civil proceedings.

ILR 21 Cal. 392: The words “shall be compelled to give”, in the proviso apply to pressure put

upon witness after he is in the box, and when he asks to be excused from answering the question.

Ultimately the Principle of common law that no one can compel abolish this but not completely.

It does not give right to remain silent or to keep the mouth shut about the relevant matter in

knowledge about the fact but it gives the right of self-incrimination (Khan, 2019).

WHETHER ARTICLE 15 IS CONTRARY TO ARTICLE 13 OF THE CONSTITUTION?

Firstly, Article 15 requires a person, including an accused person, to answer truly and voluntarily
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of all questions put to him as well as Article 13 of Constitution offers protection to such person

against questions, the answers to which would tend to expose him/her to criminal charge.

Secondly, the subject matter in Article 13 is an accused while in Article 15 the subject is witness.

Thirdly, Article 13 clearly provides as a fundamental principle that no person accused of any

offence shall be compelled to be a witness against himself. So, the area covered by Article 13 and

15 is substantially the same and the Cr.P.C. is parliamentary gloss on the constitutional clause.

Fourthly, Article 13 of Constitution only deals in criminal while Article 15 deals with both.

Fifthly, Article 15 deals to compel to give all answers while 13 gives right to remain silence.

So, it is obvious from the above analysis that Article 13 of constitution and Article 15 of Qanon-

e-Shahadat both are securing the principle of self-incrimination. They are not contradicting each

other (Billali, 2015)

WHETHER THE STATEMENT OF AN ACCOMPLICE IS GRANTED PROTECTION

UNDER ARTICLE 15?

ARTICLE 16 of Qanon-e-shahadat states that: An accomplice shall be a competent witness

against an accused person, except in the case of an offence punishable with hadd; and a conviction

is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

According to Article accomplice is competent witness but this competency does not mean to grant

conviction to someone on his sole testimony because corroboration is necessary for conviction.

1984 SCMR 479: In case of testimony given by accomplice the court must exercise careful

discrimination and consider all circumstance and relevant facts in order to arrive at a conclusion.
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Lastly it is concluded that accomplice is not contrary to Article 15 because it is protecting the

witness while accomplice as a competent is a witness the reason with he has been pardon from Sec

337 to 339 C.r.P.C so when he get pardon he stays in jail but still he becomes a competent witness

so his competency cannot be challenge at that time. On this base accomplice is a protected witness

so his statement recorded does not amount the confession and self-incrimination.

CONCLUSION: It is concluded that self-incrimination is a core right of an individual. And this

right encourages an individual not to hide something in the court of justice. Due to this right a

person become able to disclose all the matters relevant to matter in issue. It is mostly helpful in

criminal proceedings.
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Bibliography:

 Bilalli-Zendeli, A. (2015). Privilege against Self-Incrimination. 10. Retrieved from

https://cis01.central.ucv.ro/revistadestiintepolitice/files/numarul47_2015/14.%20Art

a%20Bilalli.%20155-164.pdf

 Butt, M. (2016). The Constitution of the Islamic Republic of Pakistan,1973. Lahore:

Mansoor Book House.

 Helmholz, R. H. (1990). University of Chicago Law School. p. 31. Retrieved from

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2492&context=jou

rnal_articles

 Khan, I. M. (2019). The Qanun-e-Shahadat, 1984. Lahore: Mansoor Book House.

 USLegal. (n.d). Retrieved from Nemo Tenetur Seipsum Accusare Law and Legal

Definition: https://definitions.uslegal.com/n/nemo-tenetur-seipsum-accusare/
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