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SUBMITTED BY
SAVEEZA KABSHA
2015-LLB-022
SUBMITTED TO
MA’AM ZAHISH FARID KHAN
DATE
08-10-18
SEMESTER
SEVENTH
LAW OF EVIDENCE-I
DEPARTMENT
PRINCIPLE “NEMO TENETUR LAW
PRODERE SE IPSUM” & THE PENAL
LAWS OF PAKISTAN
NEMOuTENETUR PRODEREuSE IPSUM 1
TABLE OF CONTENTS
ABSTRACT ……………………………………………………………………………….…… 03
1. Introduction ………………………………………………………………………….…...… 04
1.1. Historical Background ………………………………………………………….
…….… 04
1.2. Legal Maxims …………………………………………………………….…….
…….… 04
1.2.1. Nemo Tenetur Prodere Se Ipsum ………………………………....…….…….…
04
1.2.2. Nemo TeneturiSe IpsumiAccusare ………………………………..…….….……
04
1.2.3. NemoiTeneturiSe Detegere …………………………….…………………….… 05
1.2.4. Nemo TeneturiBeginsel …………………………….……………..………….…
05
1.2.5. Nemo TeneturuEdere Contra Se ……………….…………………….……….…
05
1.3. Purpose ……………………………………………..…………………...
……………… 05
1.4. Features …………………………………………………………………..………..
…… 05
1.5. Conditions ……………………………………………..……………………..
………… 05
2. International Law ……………………………….…………………………………….......…
06
2.1. InternationaliCovenant on Civiliand PoliticaliRights, 1976
………………………….… 06
2.2. Statuteiof the InternationaliCriminal Tribunal for the Former Yugoslavia, 1993
…….… 06
2.3. Statuteuof the InternationaluTribunal foruRwanda, 1994
…………………………….… 06
NEMOuTENETUR PRODEREuSE IPSUM 2
ABSTRACT
In any criminal legal system, the accused enjoys various rights against prosecution like right to
defense, right to stay silent, right to information regarding accusation, presumptionuof innocence
untiluproven guilty, rightuto fair trialuand rightuagainst self-incrimination. The right to self-
incrimination is one of the fundamental rights of an accused, which provides him with a privilege
to save himself from giving evidence against him unless it be voluntary (confession). This
principle is based on Latin maxim nemoutenetur prodereuse ipsum which meansu that one
teneturuprodere se ipsum, nemo tenetur se ipsum accusare, nemo tenetur seudetegere, nemo
tenetur beginsel, nemo tenetur edere contra se. The right against self-incrimination has its
origins from Talmudic Law. Lately, this principle is found in commonulaw. There rightuagainst
Pakistan’s Constitution and Penal Laws with certain exceptions. Shari’a Law also recognized
this right.
criminal proceedings, international laws, Islamic laws, Pakistani laws, penal laws
NEMOuTENETUR PRODEREuSE IPSUM 5
1. Introduction
In any criminal legal system, the accused enjoys various rights against prosecution like right
innocence untiluproven guilty, rightuto fair trial and right againstuself-incrimination etc. The
right to self-incrimination is one of the fundamental rights of an accused, which provides him
with a privilege to save himself from giving evidence against him unless it be voluntary
(confession). This principle is based on Latin maxim nemoutenetur prodereuse ipsum which
meansuthat one shouldn’t be coerced to betray himself in public. Thus, detectives and courts
can’t compel the accused to present incriminating statements against himself. However, this
right has been incorporated in different legal systems of the world in their domestic laws in
various ways having certain exceptions to it. International law also recognizes this right.
The principle against self-incrimination is only applicable in criminal law, not in other laws;
for instance, taxation law. However the state can request them to provide other types of
The right against self-incrimination has its origins from Talmudic Law. Lately, this
principle is found in common law. It had probably originated in eleventh and twelfth
century developments in common law; precisely in 1641 when High Commission and
Star Chamber had been abolished with prohibition on ex officio oath. (Schlauri, 2003)
1.3. Purpose
criminal trials. It saves him from torture, violence, physical degradation and inhumane
treatment in order to extract evidence or bear confession. There exists a direct bridge
because forcing the accused to testify against himself will shift theuburden of proof of
1.4. Features
1.5. Conditions
There are three fundamental conditions in order to seek safeguard against self-
incrimination;
2. International Law
laws.
1993
touconfess guilt.
witness againstuhimself
Article 11-uAny person chargeduwith an offence hasuthe right (c) not to beucompelled
remainusilent; (b)uto be informedupromptly (i) of the rightuto remain silent; and (ii)
into testifying againstuhimself or herself andupeople that are closeuand plead guilty;
incriminateuhimself or herselfuor his or her nextuof kin nor to confessuguilt. This right is
the useuof torture, uforce, threat or underuthe influence of drugs, oruin any otherusimilar
prohibiteduand punishable.
No Person:-
againstuhimself.
The subject of the fundamental right provided under article 13(b) is only
statement. [AIR 1961 SC 1808, AIR 1962 SC 1821]. The protection against
accused in future in some offence. [AIR 1992 SC 1795] The privilege is also
4.1.1.2. Compulsion
stateuof mind of accused unless his mind is conditioned by coercion and the
imply that compulsion was practiced. [AIR 1957 SC 211, AIR 1961 SC
be barred under Article 13(b). [AIR 1966 All. 142] When accused is trapped
in talk, it doesn’t fall under compulsion. [AIR 1968 SC 147] Accused possess
parties with the permission of one party constitutes valid evidence because no
NEMOuTENETUR PRODEREuSE IPSUM 11
compulsion was practiced and moreover, the appellant had no case against
him then. [AIR 1973 SC 157] Results obtained by polygraph tests and brain
fingerprinting fall under compulsion. [AIR 2010 SC 1974] Such test results
himself. [PLD 2002 Pesh. 118]. The protection doesn’t extend to person on
criminal proceedings. [AIR 1953 SC 325, AIR 1961 SC 29]. So even if primary
investigation
order, prescribeuin this behalf, actinguon the requisition ofusuch officer, may examine
case.
handicapping accused in his defense. [1998 MLD 2332] Police doesn’t have
Statement under section 164 CrPC is made before a Magistrate and is considered
statement under 161 CrPC. [2001 YLR 3233, 1996 PCr.LJ 1019]
NEMOuTENETUR PRODEREuSE IPSUM 13
criminate.
to the matteruin issue in any suit oruin any civil or criminaluproceedings, upon the
4.3.1. Scope
regarding self-incrimination. This article has its application in both, civil and
Article 15 provides a safeguard to the witness that his testimony will not be used
against him except in case against him for false accusation. Furthermore, he can
The protection under Article 15 extends only to such answers in which a witness
excused to answer, but Court practiced compulsion instead of excusing him. [ILR
21 Cal. 392]
under Article 15 is not available for him. However, in such salutations, sections
337-3339-A of CrPC will come into play. Anyone can be a witness according to
practiced by court to extract evidence, the witness is not granted protection under
Article 15 of QSO.
4.3.5. Sections 161, 172 CrPC and Article 15 Qanun-e-Shahadat (QSO), 1984
and answer the questions correctly in terms of Article 15 QSO. Statements under
NEMOuTENETUR PRODEREuSE IPSUM 15
161 aren’t privileged as they are public documents as per Article 49 of QSO.
5. Islamic Law
Audefendant cannot beucompelled to give a confession, anduhas the right touremain silent. A
2003) A confession, onceugiven, can beuwithdrawn even after theusentence has been passed
but mustuverify that the defendant’suconfession was notumade merely touprotect another
person. For a confessionuto be accepted, theudefendant must not only admit touthe category
higherujustice than the justice inuthe courts. If the defendantuis truly guilty, but hisuguilt
may not beufairly proven in court, theudefendant will stilluhave to answer to God.
accused person admits his guilt/crime four times at four different places. [PLD 1998 SC
1445]
NEMOuTENETUR PRODEREuSE IPSUM 16
REFERENCES
Qanun-e-Shahadat, 1984
Case Laws
AIR 1961 SC 29
Other Sources
<htp://context.reverso.net/translation/italian-english/principio+nemo+tenetur+se+detegere>
Accessed (05-10-18)
etual. eds.)
Mahmood, M. (2016). The Code of Criminal Procedure, 1898; amendments and case law
Press.