Evidence & Cross-Examination Judgements (Criminal)
VVVVI. MUST READ JUDGEMENT
واقعاتی شہادت، ملزم کے انکشاف پر برآمدگی کی قانونی حیثیت، آرٹیکل 40 قانون شہادت کے قانونی لوازمات اور LAST Seen شہادت کے لوازمات/ قانونی حیثیت کے بارے لاہور ہائیکورٹ کا انتہائی معلوماتی تازہ ترین فیصلہ
CIRCUMSTANTIAL EVIDENCE.
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The leading rules of circumstantial evidence are the followings;
1) The facts alleged as the basis of any inference must be clearly proved and indubitably connected with the factum probandum.
2) The burden of proof is always on the party who asserts the existence of any act which infers legal accountability.
3) The corpus delicti must be clearly proved before any effect is attached to circumstances supposed to be inculpatory of a particular individual.
4) The best evidence must be adduced which the nature of the case demands.
5) Evidence ought to be received with distrust, wherever any considerable time has elapsed since the commission of alleged offence.
6) In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable explanation upon any other reasonable hypothesis than that of his guilt.
7) If there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
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Article 40 of Qanun-e-Shahadat Order, 1984 provides an exception to the rule embedded in Articles 38 & 39. According to the exception contemplated in Article 40 of Qanun-e-Shahadat Order, 1984, an incriminating fact discovered in consequence of an information provided by an accused while in the custody of a police officer can still be proved against him.
Through bisection of Article 40, it can be gathered that for providing admissibility to the statement of an accused made in the police custody, it is incumbent upon the prosecution to prove the following ingredients:-
i. In pursuance of information so provided by the accused some fact not previously known to anyone be discovered;
ii. The discovered fact must be perceivable through senses;
iii. The fact so discovered must be distinctly related with the fact in issue.
Only such portion of the statement of an accused can be brought on record under Article 40 which relates to the discovery of a fact and not his Confession about the crime. Article 40 vividly is an enabling provision whereby prosecution is permitted to bring on record only the portion of a statement or confession made by the accused in the police custody through which some fact having relevancy with the crime is discovered.
The prosecution, through necessary implication of Article 40 of Ordinance ibid, could only bring on record the disclosure of the appellants and not their confession about the crime.
Non-preparation of recovery memo of the dead body creates doubt in the prosecution case. In order to prove during trial that the accused actually made a disclosure and subsequently led to the recovery of some fact, it is essential that a memo of his disclosure be prepared. Only the preparation of the memo testified by the witnesses will prove in subsequent trial that the fact was discovered in consequence of a lead and pointing out of the accused.
LAST SEEN EVIDENCE
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Evidence of last seen stands for the events in which the deceased is lastly seen in the company of an accused and subsequent thereto he becomes untraceable. For structuring conviction upon the circumstantial evidence, it is incumbent upon the prosecution to prove two of its basic ingredients which are proximity of time and proximity of distance.
The proximity of time to prove the evidence of last seen rests on the principle of "de-recenti" which lays emphasis that time span between the event of last seen and death must be very short. The short duration between the evidence of last seen and the murder incident in fact eliminates the possibility that the deceased parted the company of accused and joined some other person. As regards the proximity of distance, the evidence is led to bring on record during trial that the victim was assassinated at a short distance from the place where he was lastly seen in the company of assassin. The more is the distance between evidence of last seen and the death of deceased, greater is the possibility about the hypothesis of innocence of the accused. The failure of prosecution to prove the proximity of time and distance is destined to weaken the evidence of last seen.
While evaluating the legal worth of last seen evidence, the courts must not forget that our system of investigation is susceptible to the menace of fabrication of facts, knitting of false evidence and throwing of wider net. Due to the foregoing reason, the evidence of last seen is to be scanned with extra care because such evidence is easy to knit but difficult to prove. Even if proved, the evidence of last seen gives rise to the probability about the involvement of an accused in the assassination of the victim, hence is to be considered along with other components of circumstantial evidence for awarding conviction while looking for strong corroboration.
Criminal Appeal No 771 of 2022
Muhammad Asif and two others Vs The State
Date of Decision: 29-10-2024
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