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Analytical View

of
Procedural Laws
(Evidence & Criminal Procedure)

By Justice (R) Shabbir Ahmed.

Sindh Judicial Academy, Karachi.


2014

Page
Page
Table of Contents
COMPARATIVE TABLE. ............................................................................................................................. I
PREFACE. ............................................................................................................................................. - 1 -
PART I QANUN-E-SHAHADAT ORDER. ................................................................................................. - 1 -
CHAPTER-I ........................................................................................................................................... - 1 -
INTRODUCTION: .................................................................................................................................. - 1 -
CHAPTER-II .......................................................................................................................................... - 1 -
CONCEPT OF PROOF BEYOND REASONABLE DOUBT. ......................................................................... - 1 -
CHAPTER-III ......................................................................................................................................... - 1 -
THE PRINCIPLES RELATING TO THE DISCOVERY OF TRUTH ................................................................ - 1 -
“(i) Article 2(c), 2(d), & 2(4)............................................................................................................. - 1 -
(ii) What evidence is? ...................................................................................................................... - 2 -
(iii) Summary of Principles .............................................................................................................. - 3 -
(a) Truth should be the Guiding Star in the Entire Judicial Process ............................................ - 3 -
(b) What is ‘Truth’ and how to discover it .................................................................................. - 4 -
(c) Article 2 sub-article (4) of Qanun-e-Shahadat Order:............................................................ - 5 -
(d) Article 129 of the Qanun-e-Shahadat Order: ........................................................................ - 8 -
(e) Article 162 of Qanun-e-Shahadat Order, a Curative provision, it says:............................... - 12 -
(f) Conclusion. ........................................................................................................................... - 14 -
CHAPTER-IV ......................................................................................................................................... - 1 -
ORAL EVIDENCE. ................................................................................................................................. - 1 -
(a) “Article 70. Proof of facts by oral evidence: .............................................................................. - 1 -
(b) “Article 71. Oral evidence must be direct: ................................................................................ - 1 -
(c) “Article 2 (1) (c) defines “evidence” includes:- .......................................................................... - 2 -
(i) Principle- ................................................................................................................................. - 4 -
(ii) Kinds of Witnesses. ................................................................................................................ - 5 -

i
(a) Independent Witness. ................................................................................................. - 5 -
(b) Injured Witness. .......................................................................................................... - 6 -
(c) Related Witness. ......................................................................................................... - 7 -
(d) Interested. ................................................................................................................. - 10 -
(e) Highly Interested. ...................................................................................................... - 13 -
(f) Police Witness. .............................................................................................................. - 13 -
(g) Chance Witness. ........................................................................................................ - 15 -
(h) Child Witness- ........................................................................................................... - 16 -
(i) Hostile Witness: ............................................................................................................ - 18 -
CHAPTER-V .......................................................................................................................................... - 1 -
OMISSION OF ADMINISTRATION OF OATH OR AFFIRMATION DOES NOT INVALIDATE ANY EVIDENCE. -
1-
(i) Proceeding and evidence not invalidated by omission of oath or irregularity. ......................... - 1 -
CHAPTER-VI ......................................................................................................................................... - 1 -
APPRECIATION OF EVIDENCE. ............................................................................................................. - 1 -
(i) Omissions, Contradictions and its effect. ................................................................................... - 1 -
(ii) What Amount to Omissions? ..................................................................................................... - 1 -
(iii) Falsus in uno, falsus in omnibus. .............................................................................................. - 9 -
(iv) Appreciation of the testimony of an eye-witness involves consideration of the following
factors:- ......................................................................................................................................... - 10 -
CHAPTER-VII ........................................................................................................................................ - 1 -
CIRCUMSTANTIAL EVIDENCE- ............................................................................................................. - 1 -
(i) Circumstantial proof is in its nature “proof by inference”. ........................................................ - 1 -
(ii) Principles governing probative value of circumstantial evidence. ............................................ - 2 -
CHAPTER-VIII ....................................................................................................................................... - 1 -
REVERSAL OF BURDEN OF PROOF, ITS PRINCIPLE. ............................................................................. - 1 -
(i) Article 122 of Qanun-e-Shahadat Order says: ............................................................................ - 1 -
CHAPTER-IX ......................................................................................................................................... - 1 -
RES GESTAE, PRINCIPLES OF: .............................................................................................................. - 1 -
(i) Definition. ................................................................................................................................... - 1 -
(ii) The ............................................................................................................................................. - 2 -
(iii) Rule against hearsay and exceptions to the rule against hearsay. ........................................... - 4 -
(iv) Articles 19 to 21 of the Qanun-e-Shahadat Order .................................................................... - 6 -
a) “19. Relevancy of facts forming part of same transaction. .................................................... - 6 -

ii
b) “20. Facts which are occasion, cause or effect of facts-in-issue:- .......................................... - 7 -
(v) “The............................................................................................................................................ - 8 -
“2. Transaction – Meaning of ...................................................................................................... - 8 -
(vi) In ............................................................................................................................................. - 10 -
“11. Section 6 of Evidence Act (Article 19 of Qanun-e-Shahadat Order) is an Exception to
Hearsay Rule. ............................................................................................................................ - 10 -
12. Statements Admitted under Section 6 are Original Evidence and not Hearsay ................. - 11 -
13. Maker of the Statement Need not be Called to Prove it .................................................... - 12 -
14. Statements which are admissible as Part of the Transaction are Substantive Evidence. .. - 12 -
15. Statements which are a Part of the Res Gestae may be admissible under Section 157 (Article
153) or Section 155 (Article 151). ............................................................................................. - 12 -
(vii) Extracts from judicial pronouncements mentioned in the Law of Evidence by Sarkar. ........ - 13 -
(viii) Lord Wilberforce has stated the legal position thus: ............................................................ - 17 -
(c) “21. Motive, preparation and previous or subsequent conduct: ............................................ - 19 -
(i) Motive. .............................................................................................................................. - 22 -
(a) Previous relationship cases.............................................................................................. - 22 -
(b) Parameters, importance, contours of Motive. ................................................................ - 24 -
ii) Conduct. ................................................................................................................................ - 30 -
(a) Abscondance-. ................................................................................................................. - 30 -
CHAPTER-X .......................................................................................................................................... - 1 -
IDENTIFICATION. ................................................................................................................................. - 1 -
(i) Article 22. .................................................................................................................................... - 1 -
(ii) Substantive evidence is the identification of accused by witness in Court. .............................. - 3 -
(iii) Test Identification Parade (TIP) relates to the stage of investigation ...................................... - 4 -
(iv) Legal position of dock identification and T.I.P. ......................................................................... - 4 -
CHAPTER-XI ......................................................................................................................................... - 1 -
ALIBI .................................................................................................................................................... - 1 -
(i) Article 24. .................................................................................................................................... - 1 -
(ii) Facts inconsistent with the fact-in-issue are relevant. .............................................................. - 2 -
(iii) Plea of alibi, if fails in absence of any explanation adverse inference against the accused..... - 3 -
(iv) Nature of Proof. ........................................................................................................................ - 4 -
(v) Falsity of the plea of alibi. .......................................................................................................... - 4 -
CHAPTER-XII ........................................................................................................................................ - 1 -
DISCLOSER STATEMENT. ..................................................................................................................... - 1 -

iii
(i) Article 40. .................................................................................................................................... - 1 -
(ii) Accused must be in custody, formal arrest not necessary. ....................................................... - 2 -
(iii) Interpretation of Article. ........................................................................................................... - 3 -
(iv) Is there a legal requirement of obtaining the signatures of the accused persons on a recovery
memo? ............................................................................................................................................ - 8 -
(v) Effect of recovery having been effected from an open place. .................................................. - 9 -
(vi) While effecting a recovery under Article 40 of Qanun-e-Shahadat Order, there exists no legal
requirement for public witness. ................................................................................................... - 10 -
Joint Recovery, when admissible. ................................................................................................. - 11 -
CHAPTER-XIII ....................................................................................................................................... - 1 -
DYING DECLARATION AND CIRCUMSTANCES OF THE TRANSACTION WHICH RESULTED IN HIS DEATH.-
1-
(i) Article 46(1). ............................................................................................................................... - 1 -
(a) Dying Declaration................................................................................................................... - 2 -
(i) Multiple Dying Declarations. .............................................................................................. - 5 -
(ii) Doctrine of Dying Declaration............................................................................................ - 7 -
(b) circumstances of the transaction which resulted in his death. ............................................. - 9 -
Scope ......................................................................................................................................... - 13 -
CHAPTER-XIV ....................................................................................................................................... - 1 -
14. RELEVANCY OF JUDGMENTS. ........................................................................................................ - 1 -
(A) Res Judicata. .............................................................................................................................. - 1 -
(i) “Article 54. Previous Judgments relevant to bar a second suit or trial: ................................. - 1 -
(ii) The distinction between res judicata and estoppel............................................................... - 2 -
(iii) The doctrine of res judicata is different from the rule laid down in Order II, Rule 2 of the
Code of Civil Procedure ............................................................................................................... - 4 -
(iv) Autrefois acquit and autrefois convict .................................................................................. - 6 -
(B) Relevancy of Certain Judgments in Probate etc., jurisdiction. .................................................. - 8 -
(i) “Article 55. .............................................................................................................................. - 8 -
(ii) Principles. ............................................................................................................................... - 9 -
(iii) Scope. .................................................................................................................................. - 10 -
(iv) Final judgment, order or decree. ........................................................................................ - 11 -
(v) Competent Court ................................................................................................................. - 11 -
(vi) Legal character. ................................................................................................................... - 12 -
(a) Probate jurisdiction. ........................................................................................................ - 12 -
(b) Matrimonial jurisdiction. ................................................................................................. - 13 -

iv
(c) Admiralty jurisdiction. ...................................................................................................... - 13 -
(d) Insolvency jurisdiction. .................................................................................................... - 13 -
(C) Relevancy and effect of judgments, orders or decree relate to matters of a public nature. . - 14 -
(i) “Article 56. ............................................................................................................................ - 14 -
(ii) Principle. .............................................................................................................................. - 15 -
(iii) Judgments, order or decrees. ............................................................................................. - 17 -
(iv) Probative value of judgments. ............................................................................................ - 17 -
(a) General. ........................................................................................................................... - 17 -
(b) Custom, judgments on, question of. ............................................................................... - 18 -
(c) Local custom. ................................................................................................................... - 18 -
(d) Custom of class of people................................................................................................ - 18 -
(e) The matter of a wakf ....................................................................................................... - 18 -
(f) Judgments in suits under Section 92 CPC......................................................................... - 19 -
(v) Matters of a public nature. .................................................................................................. - 19 -
(vi) Customs of succession. ....................................................................................................... - 19 -
(a) General. ........................................................................................................................... - 19 -
(b) Village tenures, customs as to. ........................................................................................ - 20 -
(D) Relevancy of judgment when such judgment, order and decree is a fact in issue or is relevant
under some provisions of the Order. ............................................................................................ - 20 -
(i) “Article 57. ............................................................................................................................ - 20 -
(ii) Judgments other than those mentioned in Articles 54, 55 & 56 when relevant. ............... - 21 -
(iii) Principle. ............................................................................................................................. - 22 -
(iv) Judgment of criminal Court, relevancy in other criminal case. .......................................... - 24 -
(E) Effect of fraud collusion in obtaining judgment, of incompetency of court. .......................... - 24 -
(i) Article 58. .............................................................................................................................. - 24 -
(ii) Principles. ............................................................................................................................. - 25 -
(iii) Scope and applicability. ...................................................................................................... - 25 -
(iv) Incompetency. .................................................................................................................... - 27 -
(a) General. ........................................................................................................................... - 27 -
(b) Who can show incompetency?........................................................................................ - 27 -
(c) Erroneous decision........................................................................................................... - 28 -
(v) Fraud. ................................................................................................................................... - 28 -
(a) General. ........................................................................................................................... - 28 -
(b) Negligence and fraud....................................................................................................... - 28 -

v
(vi) Who may show fraud? ........................................................................................................ - 29 -
(a) Strangers. ......................................................................................................................... - 29 -
(b) Parties. ............................................................................................................................. - 29 -
(vii) Collusion ............................................................................................................................. - 30 -
CHAPTER-XV ........................................................................................................................................ - 1 -
15. EXPERT OPINION. .......................................................................................................................... - 1 -
(1) “Article 59. ................................................................................................................................. - 1 -
(A) Medical. ................................................................................................................................. - 2 -
(i) Fractures. ............................................................................................................................ - 2 -
(a) Depressed Fractures ...................................................................................................... - 2 -
(b) Comminuted Fractures .................................................................................................. - 3 -
(c) Weight of medical opinion:............................................................................................ - 4 -
(d) Value of an expert in the eye of law:............................................................................. - 6 -
(B) Bite mark analysis. ................................................................................................................. - 8 -
(i) “Photographic method: ...................................................................................................... - 9 -
(C) What is DNA? ....................................................................................................................... - 10 -
1. Procedure for collection and forwarding of samples of DNA for analysis. ....................... - 12 -
2. Examples of situations in which Y STR testing is helpful: ................................................. - 13 -
3. DNA Discovery-Getting the Full Picture ............................................................................ - 14 -
CHAPTER-XVI ....................................................................................................................................... - 1 -
“Article 133. .................................................................................................................................... - 1 -
Affect of failure to cross-examine a witness double opportunity. ................................................. - 1 -
Effect of Omitting or Not Cross-Examining a Witness on Essential Points. [Suggestions]. ............ - 3 -
Testimony of a witness declared hostile: Evidentiary value ........................................................... - 6 -
CHAPTER-XVII ...................................................................................................................................... - 1 -
LEADING QUESTION AND ITS PERMISSIBILITY. ................................................................................... - 1 -
(I) “Article 136. Leading Questions. ................................................................................................ - 1 -
(II) “Article 137. When leading questions must not be asked. ....................................................... - 1 -
(III) “Article 138. When leading questions may be asked. .............................................................. - 1 -
(IV) exceptions. ............................................................................................................................... - 1 -
(a) The authoritative text by Phipson on Evidence ..................................................................... - 1 -
(b) The above well settled legal position is reiterated by the leading expert on the subject M.C.
Sarkar .......................................................................................................................................... - 2 -
(i) Exceptions to the Rule. ....................................................................................................... - 2 -

vi
(ii) Introductory or Undisputed Matter................................................................................... - 2 -
(iii) Identification. .................................................................................................................... - 3 -
(iv) Contradictions. .................................................................................................................. - 3 -
(v) Helping Memory. ............................................................................................................... - 4 -
(vi) Hostile Witness. ................................................................................................................ - 4 -
(vii) Complicated Matter. ........................................................................................................ - 4 -
(V) Leading question ipso facto by itself will not vitiate the trial. .................................................. - 6 -
CHAPTER-XVIII ..................................................................................................................................... - 1 -
PRODUCTION OF EVIDENCE BECAUSE OF MODERN DEVICES, ETC. ................................................... - 1 -
(i) “Article 164. ................................................................................................................................ - 1 -
(ii) Conditions for the admissibility of electronic evidence. ........................................................... - 1 -
iii) Call Detail Records. .................................................................................................................... - 3 -
PART II CRIMINAL PROCEDURE CODE ................................................................................................. - 1 -
CHAPTER-I ........................................................................................................................................... - 1 -
FIRST INFORMATION REPORT. ............................................................................................................ - 1 -
(i) “Section 154 Cr.P.C. .................................................................................................................... - 1 -
(ii) Principal object. ......................................................................................................................... - 1 -
(iii) A vital and valuable piece of evidence not be substantive piece of evidence. ........................ - 2 -
(iv) Effect of Delay. .......................................................................................................................... - 3 -
CHAPTER-II .......................................................................................................................................... - 1 -
INVESTIGATION. .................................................................................................................................. - 1 -
(i) “Section 156 Cr.P.C. .................................................................................................................... - 1 -
(ii) Irregularity in arrest has no bearing on the trial. ...................................................................... - 3 -
(iii) Defective Investigation. ............................................................................................................ - 4 -
CHAPTER-III ......................................................................................................................................... - 1 -
EXAMINATION OF WITNESS. ............................................................................................................... - 1 -
(i) “Section 161 Cr.P.C. .................................................................................................................... - 1 -
(ii) Purpose for which statements could be utilized. ...................................................................... - 1 -
(iii) Effect of delay. .......................................................................................................................... - 4 -
CHAPTER-IV ......................................................................................................................................... - 1 -
INQUEST REPORT. ............................................................................................................................... - 1 -
(i) “Section 174 Cr.P.C. .................................................................................................................... - 1 -
(ii) The impact of discrepancies between the inquest report and a post-mortem report: ............ - 3 -
CHAPTER V .......................................................................................................................................... - 1 -

vii
DEFECT IN CHARGE ......................................................................................................................... - 1 -
“Section 225 Cr.PC. ..................................................................................................................... - 1 -
CHAPTER-VI ......................................................................................................................................... - 1 -
EVIDENCE FOR PROSECUTION, THE PARI MATERIA PROVISIONS, ARE AS FOLLOWS:........................ - 1 -
(i) “Section 244 Cr.P.C. (Magistrate Trial) ....................................................................................... - 1 -
(ii) “Section 265-F Cr.P.C. (Session’s Trial) ...................................................................................... - 2 -
(iii) Discretion of a prosecutor. ....................................................................................................... - 3 -
(iv) Is the prosecution obliged to examine all witnesses cited by it. .............................................. - 5 -
CHAPTER-VII ........................................................................................................................................ - 1 -
EXAMINATION OF ACCUSED. .............................................................................................................. - 1 -
(i) “Section 342 Cr.P.C. .................................................................................................................... - 1 -
(ii) requirement of law. ................................................................................................................... - 2 -
(iii) Impact of Evidence not being put to accused at the time of recording his statement. ........... - 3 -
CHAPTER-VIII ....................................................................................................................................... - 1 -
DEMEANOUR. ..................................................................................................................................... - 1 -
(i) “Section 363 Cr.P.C. .................................................................................................................... - 1 -
(ii) Demeanour of witnesses. .......................................................................................................... - 1 -
(iii) What is Demeanour. ................................................................................................................. - 1 -
(iv) Weight of Observation. ............................................................................................................. - 2 -
REFERENCES: ....................................................................................................................................... - 1 -

viii
COMPARATIVE TABLE.

Articles of Corresponding
Qanun-e- Sections of the
Shahadat Evidence Act,
1872
Article 1 Short title, extent and commencement Section 1
Article 2 Interpretation Section 3
May presume Section 4
Article 3 Who may testify Section 118
No provision Dumb witnesses Section 119
No provision Parties to civil suit, and their wives or husbands. Section 120
Husband or wife of person under criminal trial
Article 4 Judges and Magistrates Section 121
Article 5 Communications during marriage Section 122
Article 6 Evidence as to affairs of State Section 123
Article 7 Official communications Section 124
Article 8 Information as to commission of offences Section 125
Article 9 Professional communications Section 126
Article 10 Article 9 to apply to interpreters, etc. Section 127
Article 11 Privilege not waived by volunteering evidence Section 128
Article 12 Confidential communications with legal advisers Section 129
Article 13 Production of title deed of witness, not party Section 130
Article 14 Production of documents which another person, Section 131
having possession, could refuse to produce
Article 15 Witness not excused from answering on ground that Section 132
answer will criminate
Article 16 Accomplice Section 133
Article 17 And (2) (a) -------------------------- No
corresponding
provision
Article 17 (2) (b) Competence and number of witnesses Section 134
Article 18 Evidence may be given of facts-in-issue and Section 5
relevant facts
Article 19 Relevancy of facts forming part, of some Section 6
transaction
Article 20 Facts which are the occasion, cause or effect of Section 7
facts-in-issue
Article 21 Motive, preparation and previous or subsequent Section 8
conduct

Page I
Article 22 Facts necessary to explain or introduce relevant Section 9
facts
Article 23 Things said or done by conspirator in reference to Section 10
common design
Article 24 When facts not otherwise relevant become relevant Section 11
Article 25 In suits for damages facts tending to enable Court to Section 12
determine amount are relevant
Article 26 Facts relevant when right or custom is in question Section 13
Article 27 Facts showing existence of state of mind or of body, Section 14
or bodily feelings
Article 28 Facts bearing on question Whether act was Section 15
accidental or intentional
Article 29 Existence of course of business when relevant Section 16
Article 30 Admission defined Section 17
Article 31 Admission by party to proceeding or his agent etc. Section 18
Article 32 Admission by persons whose position must be Section 19
proved as against party to suit
Article 33 Admission by persons expressly referred to by party Section 20
to suit
Article 34 Proof of admissions against persons making them Section 21
and by or on this behalf
Article 35 When oral admissions as to contents of documents Section 22
are relevant
No provision When oral admission as to contents of electronic Section 22A
records are relevant
Article 36 Admissions in civil cases when relevant Section 23
Article 37 Confession caused by inducement, threat or Section 24
promise, when irrelevant in criminal proceeding
Article 38 Confession to police officer not to be proved Section 25
Article 39 Confession by accused while in custody of police Section 26
not to be proved against him
Article 40 How much of information received from accused Section 27
may be proved
Article 41 Confession made after removal of impression Section 28
caused by inducement, threat or promise, relevant
Article 42 Confession otherwise relevant not to become Section 29
irrelevant because of promise of secrecy, etc.
Article 43 trial for same offence Section 30
Article 44 Accused persons to be liable to cross-examination No
corresponding
provision
Article 45 Admission not conclusive proof but may estop Section 31

II
Article 46 Cases in which statement of relevant fact by person Section 32
who is deed or cannot be found, etc. is relevant
Article 46A Relevance of information generated received or New
recorded by automated information system
Article 47 Relevancy of certain evidence for proving, in Section 33
subsequent proceeding, the truth of facts therein
stated
Article 48 Entries in books of account when relevant Section 34
Article 49 Relevancy of entry in public record made in Section 35
performance of duty
Article 50 Relevancy of statements in maps, charts and plans Section 36
Article 51 Relevancy of statements as to fact of public nature, Section 37
contained in certain Acts or notifications
Article 52 Relevancy of statements as to any law contained in Section 38
law-books
Article 53 What evidence to be given when statement forms Section 39
part of a conversation, document, book or series of
letters or papers
Article 54 Previous judgments relevant to bar a Second suit or Section 40
trial
Article 55 Relevancy of certain judgments in probate, etc. Section 41
jurisdiction
Article 56 Relevancy and effect of Judgments, orders or Section 42
decrees, other than those mentioned in Article 55
Article 57 Judgments, etc., other than those mentioned in Section 43
Articles 54 to 56 when relevant
Article 58 Fraud or collusion in obtaining judgment, or Section 44
incompetence of Court may be proved
Article 59 Opinions of experts Section 45
No provision Opinion of examiner of electronic evidence Section 45A
Article 60 Facts bearing upon opinions of experts Section 46
Article 61 Opinion as to handwriting when relevant Section 47
No provision Opinion as to digital signature when relevant Section 47A
Article 62 Opinion as to existence of right or custom, when Section 48
relevant
Article 63 Opinion as to usages, tenets, etc., when relevant Section 49
Article 64 Opinion on relationship when relevant Section 50
Article 65 Grounds of opinion when relevant Section 51
Article 66 In civil cases character to prove conduct imputed Section 52
irrelevant
Article 67 In criminal cases previous good character relevant Section 53
Article 68 Previous bad character not relevant, except in reply Section 54

III
Article 69 Character as affecting damages Section 55
Article 70 Proof of facts by oral evidence Section 59
Article 71 Oral evidence must be direct Section 60
Article 72 Proof of contents of documents Section 61
Article 73 Primary evidence Section 62
Article 74 Secondary evidence Section 63
Article 75 Proof of documents by primary evidence Section 64
Article 76 Cases in which secondary evidence relating to Section 65
documents may be given
Article 77 Rules as to notice to produce Section 66
Article 78 Proof of signature and handwriting of person Section 67
alleged to have signed or written document
produced
Article 78A Proof of electronic signature and electronic Section 67A
document
Article 79 Proof of execution of document required by law to Section 68
be attested
Article 80 Proof where no attesting witness found Section 69
Article 81 Admission of execution by party to attested Section 70
document
Article 82 Proof when attesting witness denies the execution Section 71
Article 83 Proof of document not required by law to be Section 72
attested
Article 84 Comparison of signature, writing or seal with others Section 73
admitted or proved
No provision Proof as to verification of digital signature Section 73A
Article 85 Public documents Section 74
Article 86 Private documents Section 75
Article 87 Certified copies of public documents Section 76
Article 88 Proof of documents by production of certified Section 77
copies
Article 89 Proof of other public documents Section 78
Article 90 Presumption as to genuineness of certified copies Section 79
Article 91 Presumption as to documents produced as record of Section 80
evidence
Article 92 Presumption as to genuineness of documents kept Section 81 &
under any law 82
No provision Presumption as to visits in electronic forms Section 81A
Article 93 Presumption as to maps or plans made by authority Section 83
of Government
Article 94 Presumption as to collections of laws and reports of Section 84
decision

IV
Article 95 Presumption as to powers-of-attorney Section 85
No provision Presumption as to electronic agreement Section 85A
No provision Presumption as to electronic records and digital Section 85B
signature
No provision Presumption as to digital signature certificate Section 85C
Article 96 presumption as to certified copies of foreign Section 86
Judicial records
Article 97 Presumption as to books, maps and charts Section 87
Article 98 Presumption as to telegraphic messages Section 88
No provision Presumption as to electronic messages Section 88A
Article 99 Presumption as to due execution etc., of documents Section 89
not produced
Article 100 Presumption as to documents thirty years old Section 90
No provision Presumption as to electronic records five years old New
Article 101 Certified copies of documents thirty years old Section 90A
Article 102 Evidence of terms of contracts, grants and other Section 91
disposition of property reduced to form of
document
Article 103 Exclusion of evidence of oral agreement Section 92
Article 104 Exclusion of evidence against application of Section 94
document to existing facts
Article 105 Evidence as to document unmeaning in reference to Section 95
existing facts
Article 106 Evidence as to application of language can apply to Section 96
one only of several persons
Article 107 Evidence as to application of language to one of two Section 97
sets of facts to neither of which the whole correctly
applies
Article 108 Evidence as to meaning of illegible characters etc. Section 98
Article 109 Who may give evidence of agreement varying terms Section 99
of document
Article 110 Saving of provisions of Succession Act relating to Section 100
wills
Article 111 Fact judicially noticeable need not be proved Section 56
Article 112 Facts of which Court must take judicial notice Section 57
Article 113 Facts admitted need not be proved Section 58
Article 114 Estoppel Section 115
Article 115 Estoppel of tenant and of licensee of person in Section 116
possession
Article 116 Estoppel of acceptor of bill of exchange bailee or Section 117
licensee
Article 117 Burden of proof Section 101

V
Article 118 On whom burden of proof lies Section 102
Article 119 Burden of proof as to particular fact Section 103
Article 120 Burden of proving fact to be proved to make Section 104
evidence admissible
Article 121 Burden of proving that case of accused comes Section 105
within exceptions
Article 122 Burden of proving fact especially within knowledge Section 106
Article 123 Burden of proving death of person known to have Section 107
been alive within thirty years
Article 124 Burden of proving that person is alive who has not Section 108
been heard of for seven years
Article 125 Burden of proof as to relationship in the cases of Section 109
partners, landlord and tenant, principal and agent
Article 126 Burden of proof as to ownership Section 110
Article 127 Proof of good faith in transactions where one party Section 111
is in relation of active confidence
No provision Presumption as to certain offences Section 111A
Article 128 Birth during marriage conclusive proof of Section 112
legitimacy
No provision Proof of cession of territory Section 113
No provision Presumption as to abetment of suicide by a married Section 113A
woman
No provision Presumption as to dowry death Section 113B
Article 129 Court may presume existence of certain facts Section 114
No provision Presumption as to absence of consent in certain Section 114A
prosecutions for rape
Article 130 Order of production and examination of witnesses Section 135
Article 131 Judge to decide as to admissibility of evidence Section 136
Article 132 Examination-in-chief, etc. Section 137
Article 133 Order of examinations Section 138
Article 134 Cross-examination of person called to produce a Section 139
document
Article 135 Witnesses to character Section 140
Article 136 Leading questions Section 141
Article 137 When leading questions must not be asked Section 142
Article 138 When leading questions may be asked Section 143
Article 139 Evidence as to matters in writing Section 144
Article 140 Cross-examination as to previous Statements in Section 145
writing
Article 141 Questions lawful in cross-examination Section 146
Article 142 When witness to be compelled to answer Section 147
Article 143 Court to decide when question shall be asked and Section 148

VI
when witness compelled to answer
Article 144 Question not to be asked without reasonable Section 149
grounds
Article 145 Procedure of Court in case of question being asked Section 150
without reasonable grounds
Article 146 Indecent and scandalous question Section 151
Article 147 Procedure of Court in cases of defamation, libel and Section 151A
slander
Article 148 Questions intended to insult or annoy Section 152
Article 149 Exclusion of evidence to contract answer to Section 153
questions testing veracity
Article 150 Question by party to his own witness Section 154
Article 151 Impeaching credit of witness Section 155
Article 152 Questions lending to corroborate evidence of Section 156
relevant fact admissible
Article 153 Former statements of witness may be proved to Section 157
corroborate later testimony as to same fact
Article 154 When matters may be proved in connection with Section 158
proved statement relevant under Article 46 or 47
Article 155 Refreshing memory Section 159
Article 156 Testimony to facts stated in document mentioned in Section 160
Article 155
Article 157 Right of adverse party as to writing used to refresh Section 161
memory
Article 158 Production of documents Section 162
Article 159 Giving, as evidence, of document called for and Section 163
produced on notice
Article 160 Using, as evidence, of document production of Section 164
which was refused on notice
Article 161 Judge's power to put questions or order production Section 165
Article 162 No new trial for improper admission or rejection of Section 167
evidence
Article 163 Acceptance or denial of claim on oath No
corresponding
provision
Article 164 Production of evidence that has become available No
because of modern devices, etc. corresponding
provision
Article 165 Order to override other laws No
corresponding
provision
Article 166 Repeal Section 2

VII
VIII
Preface.

The Al-Qurán lays grate stress on justice. It holds that creation is


founded on justice, and that one of the excellent attributes of the God
is ―just‖. Consequently the concept of justice in Islam is that
administration of justice is a divine dispensation. The policy of the
procedural law is to see that every case has been fairly tried, the rule
of evidence plays an important role in achieving that object, and as
such, good working knowledge of principles is essential so that there
may be a fair trial and no lacuna is left in applying a principle as laid
and developed through case law. It is an oft repeated phenomena that
broad understanding of the rules relating to the evidence can
sometimes be a stumbling block, and not result oriented. For a proper
trial one has to play a double role, firstly - to have mastery of the rule
of evidence, and secondly-how to apply them. Before a court can
pronounce as to the existence of a right or liability, it has to ascertain
the facts necessary constituent of that right or liability. While
recording the evidence the duty of a Judge is to prevent indiscipline in
admission of the evidence by applying the rules correctly. The law of
evidence is most neglected field by bar and bench alike, resulting in
miscarriage of justice.
An attempt has been made through this book to achieve the above
objective by analysis of certain provisions of evidence and criminal
procedure, such as, concept of ―proof beyond reasonable doubt‖,

Page - 1 -
―principles relating to the discovery of truth‖, ―oral evidence‖,
―appreciation of evidence‖, ―circumstantial evidence‖, ―res-gesta‖,
―discloser statement‖, ―reversal of burden of proof‖, ―burden of proof
on the person having special knowledge‖, ―identification parade‖,
―alibi‖, ―dying declaration and circumstances of the transaction which
resulted in his death‖, ―relevancy of judgements‖, ―expert opinion‖,
―leading question and its permissibility‖, ―examination of witness‖,
―defect in charge‖, ―chain of custody‖, ―examination of accused‖,
―demeanour‖ etc.
In my opinion this book will be equally useful not only for the judges
and advocates but also to those who desire to know about the subject.
Hope it will facilitate the reader in capitulating the rules in a better
way.

Justice (R) Shabbir Ahmed.


Karachi.
Dated:08-12-2014.

-2-
PART I QANUN-E-SHAHADAT ORDER.

CHAPTER-I

INTRODUCTION:
Justice to all – the accused, the society as well as a fair chance to
prove to the prosecution – is not only an integral part of the criminal
justice system but it is its prime objective.

Where our criminal justice system provides safeguard of fair trial and
innocent till proven guilty to an accused, there it also contemplates
that a criminal trial is meant for doing justice to all, the accused, the
society and a fair chance to prove to the prosecution, then alone can
law and order be maintained. The courts do not merely discharge the
function to ensure that no innocent man is punished, but also that a
guilty man does not escape. Both are public duties of the judge.
During the course of the trial, the Presiding Judge is expected to work
objectively and in a correct perspective. Where the prosecution
attempts to misdirect the trial on the basis of a perfunctory or
designedly defective investigation, there the Court is to be deeply
cautious and ensure that despite such an attempt, the determinative
process is not subverted. For truly attaining this object of a ―fair trial‖,
the Court should leave no stone unturned to do justice and protect the
interest of the society as well.

Page - 1 -
Is the precept that ―justice must not only be done but seems to be
done” applicable only one way, that is towards the accused person?

Is there no duty or responsibility of and upon the defence to ensure


that the trial is fair to society, victim, complainant and, most
importantly, that it is not impeded?

Is it not high time that the right of a fair trial be enforced in favour of
the victim as well as the witnesses in the trial and their secondary
traumatization by aggressive and intimidating defence posturing
prevented?

Can accused persons exercise control over appearance of witnesses in


court?

Can an accused person abscond, not for days, weeks or a few months,
but for years?

Are accused persons not answerable for pressure as well as the


criminal justice system?

What is the impact of each, or, all of the above?

These are some of the issues which are to be addressed.

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CHAPTER-II

CONCEPT OF PROOF BEYOND REASONABLE DOUBT.


The doctrine of presumption of innocence casts the burden on the
prosecution to prove its case against the accused persons beyond
reasonable doubt. It is trite that doubt to the guilt of the accused
should be substantial and not flimsy or fanciful. This is best stated in
the words of the Indian Supreme Court, wherein, the court had
observed as follows:

―A person has, no doubt, a profound right not to be convicted of an


offence which is not established by the evidential standard of proof
beyond reasonable doubt. Though this standard is a higher standard,
there is, however, no absolute standard. What degree of probability
amounts to ―proof‖ is an exercise particular to each case. Referring to
the interdependence of evidence and the confirmation of one piece of
evidence‖

―The simple multiplication rule does not apply if the separate pieces
of evidence are dependent. Two events are dependent when they tend
to occur together, and the evidence of such events may also be said to
be dependent. In a criminal case, different pieces of evidence directed
to establishing that the defendant did the prohibited act with the
specified state of mind are generally dependent. A juror may feel
doubt whether to credit an alleged confession, and doubt whether to

Page - 1 -
infer guilt from the fact that the defendant fled from justice. But since
it is generally guilty rather than innocent people who make
confessions, and guilty rather than innocent people who run away, the
two doubts are not to be multiplied together. The one piece of
evidence may confirm the other.‖

Doubts would be called reasonable if they are free from a zest for
abstract peculation. Law cannot afford any favourite other than truth.
To constitute reasonable doubt, it must be free from an over-
emotional response. Doubts must be actual and substantial doubts as
to the guilt of the accused person arising from the evidence, or from
the lack of it, as opposed to mere vague apprehensions. A reasonable
doubt is not an imaginary, trivial or a merely possible doubt; but a fair
doubt based upon reason and common sense. It must grow out of the
evidence in the case.

―The concepts of probability, and the degrees of it, cannot obviously


be expressed in terms of units to be mathematically enumerated as to
how many of such units constitute proof beyond reasonable doubt.
There is an unmistakable subjective element in the evaluation of the
degrees of probability and the quantum of proof. Forensic probability
must, in the last analysis, rest on a robust common sense and,
ultimately, on the trained intuitions of the Judge. While the protection
given by the criminal process to the accused persons is not to be
eroded, at the same time, uninformed legitimisation of trivialities
would make a mockery of administration of criminal justice.‖

-2-
1
(1988) 4 SCC 302, State of U.P. v. Krishna Gopal

While examining the degree of proof in criminal cases, in 2(1947) 2


All E.R. 372, Miller v. Ministers of Pensions Lord Denning stated -
―that degree is well settled. It need not reach certainty, but it must
carry a high degree of probability. Proof beyond reasonable doubt
does not mean proof beyond the shadow of a doubt. The law would
fail to protect the community if it admitted fanciful possibilities to
deflect the course of justice. If the evidence is so strong against a man
as to leave only a remote possibility in his favour which can be
dismissed with the sentence ―of course, it is possible but not in the
least probable,‖ the case is proved beyond reasonable doubt…‖

Lord Denning observed in 3Bater v. Bater in (1950) 2 All.E.R. 458,


―The standard adopted by the prudent man would vary from case to
case, circumstances to circumstances. Exaggerated devotion to the
rule of benefit of doubt must not nurture fanciful doubts or lingering
suspicions or thereby destroy social defence. Justice cannot be made
sterile on the plea that it is better to let hundred guilty escape than
punish an innocent. Letting guilty escape is not doing justice,
according to law.‖

Regarding the concept of benefit of reasonable doubt Lord Du Paraq,


J. in another context observed:

―All that the principle enjoins is a reasonable scepticism, not an


obdurate persistence in disbelief. It does not demand from the judge a

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resolute and impenetrable incredulity. He is never required to close
his mind to the truth.‖

Expressions ―proof beyond reasonable doubt‖ and entitlement of an


accused person to ―benefit of doubt‖. A very valuable discussion on
this issue is to be found in the enunciation by Lord Denning in
4
Miller‟s case (supra), elaborated the principles thus:

―To entitle an accused person to the benefit of a doubt arising from


the possibility of a duality of views, the possible view in favour of the
accused must be as nearly reasonably probable as that against him. If
the preponderance of probability is all one way, a bare possibility of
another view will not entitle the accused to claim the benefit of any
doubt. It is, therefore, essential that any view of the evidence in
favour of the accused must be reasonable even as any doubt, the
benefit of which an accused person may claim, must be reasonable.‖
―A reasonable doubt‖, it has been remarked, ―does not mean some
light, airy, insubstantial doubt that may flit through the minds of any
of us about almost anything at some time or other; it does not mean a
doubt begotten by sympathy out of reluctance to convict; it means a
real doubt, a doubt founded upon reasons.‖

Proof beyond reasonable doubt is a guideline, not a fetish.

―A Judge does not preside over a criminal trial merely to see that no
innocent man is punished. A Judge also presides to see that a guilty
man does not escape. … Both are public duties….‖

-4-
The proof beyond reasonable doubt is a guiding factor and not an
absolute rule.

Exaggerated devotion to the rule of benefit of doubt at the expense of


social defence and to the soothing sentiment that all acquittals are
always good regardless of justice to the victim and the community,
demand special emphasis in the contemporary context of escalating
crime and escape. The judicial instrument has a public accountability.
The cherished principles or golden thread of proof beyond reasonable
doubt which runs through the web of our law should not be stretched
morbidly to embrace every hunch, hesitancy and degree of doubt. The
excessive solicitude reflected in the attitude that a thousand guilty
men may go but one innocent martyr shall not suffer is a dilemma.
Only reasonable doubts belong to the accused. Otherwise any
practical system of justice will then break down and lose credibility
with the community. The evil of acquitting a guilty person light
heartedly as a learned Author [Glanville Williams in 5‗Proof of
Guilt‘.] has sapiently observed, goes much beyond the simple fact that
just one guilty person has gone unpunished. If unmerited acquittals
become general, they tend to lead to a cynical disregard of the law,
and this in turn leads to a public demand for harsher legal
presumptions against indicted ―persons‖ and more severe punishment
of those who are found guilty.

-5-
-6-
CHAPTER-III

THE PRINCIPLES RELATING TO THE DISCOVERY OF


TRUTH are based on Articles 2 and 129 of the Qanun-e-Shahadat
Order. That may be summarized as under:-

“(i) Article 2(c), 2(d), & 2(4).


(c) ―evidence‖ includes:-

(i) all statements which the Court permits or requires to be


made before it by witnesses, in relation to matters of fact
under inquiry; such statements are called oral evidence;
and

(ii) all documents produced for the inspection of the Court;


such documents are called documentary evidence;

(d) ―fact‖ includes:-

(i) anything, state of things, or relation of things capable of


being perceived by the senses; and

(ii) any mental condition of which any person is conscious.‖

Illustrations

(a) That there are certain objects arranged in a certain order in a


certain place, is a fact.
(b) That a man heard or saw something, is a fact.

Page - 1 -
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention,
acts in good faith or fraudulently, or uses a particular word in
a particular sense, or is or was at a specified time conscious
of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.

(ii) What evidence is?

The instrument by which the Court is convinced of a fact is


―evidence‖. It is often classified as being either ―direct‖ or
―circumstantial‖. Direct evidence is a statement of what a man has
actually seen or heard:-

circumstantial evidence is something from which facts in issue are to


be inferred. If the phrase is thus used the word ―evidence‖ in two
phrases ―direct evidence‖ and ―circumstantial evidence‖ opposed to
each other has two different meanings. In the first it means testimony;
in the second, it means a fact which is to serve as the foundation for
an inference. It would indeed, be quite correct if this view is taken to
say ―circumstantial evidence‖ must be proved by direct evidence.
This would be a most clumsy mode of expression. The word
―evidence‖ which means either (1) words spoken or things produced
in order to convince the court of the existence of fact:- or

(2) facts of which the court is so convinced, which suggest some


inference as to other facts. The word ―evidence‖ is used in the first of

-2-
these senses only and so it may be reduced in three heads:- (1) Oral
Evidence, (2) Documentary Evidence and (3) Material Evidence.
Finally the evidence by which facts are to be proved must be brought
to the notice of the court and submitted to its judgment and the court
must form its judgment respecting them. 1(Law of Evidence by CD
Field)

(iii) Summary of Principles

(a) Truth should be the Guiding Star in the Entire


Judicial Process
 Truth is foundation of Justice. Dispensation of justice, based on
truth, is an essential and inevitable feature in the justice delivery
system. Justice is truth in action.
 It is the duty of the Judge to discover truth to do complete
justice. The entire judicial system has been created only to
discern and find out the real truth.
 The justice based on truth would establish peace in the society.
For the common man truth and justice are synonymous. So
when truth fails, justice fails. People would have faith in Courts
when truth alone triumphs.
 Every trial is voyage of discovery in which truth is the quest.
Truth should be reigning objective of every trial. Judge has to
play an active role to discover the truth and he should explore all
avenues open to him in order to discover the truth.

-3-
 The Trial Judge is the key-man in the judicial system and he is
in a unique position to strongly impact the quality of a trial to
affect system‗s capacity to produce and assimilate truth. The
Trial Judge should explore all avenues open to him in order to
discover the truth. Trial Judge has the advantage of looking at
the demeanour of the witnesses. In spite of the right of appeal,
there are many cases in which appeals are not filed. It is mostly
with the Trial Judge rather than with the appellate Judge that the
members of the general public come in contact, whether as
parties or as witnesses.

(b) What is ‘Truth’ and how to discover it


 Law‘s Truth is synonymous with facts established in accordance
with the procedure prescribed by law.
 The purpose of judicial inquiry is to establish the existence of
facts in accordance with law.
 Facts are proved through lawfully prescribed methods and
standards.
 The belief of Courts about existence of facts must be based on
reason, rationality and justification, strictly on the basis of
relevant and admissible evidence, judicial notice or legally
permitted presumptions. It must be based on a prescribed
methodology of proof. It must be objective and verifiable.

-4-
(c) Article 2 sub-article (4) of Qanun-e-Shahadat
Order:
―(4) A fact is said to be proved when, after considering the matters
before it, the Court either believes it to exist, or considers its
existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition
that it exists.‖

 ―Evidence‖ of a fact and ―proof‖ of a fact are not synonymous


terms. ―Proof‖ in the strict sense means the effect of evidence.
 A fact is said to be proved when, after considering the matters
before it, the Court either believes it to exist, or considers its
existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition
that it exists.
 The term ―after considering the matters before it‖ in Article 2
sub-article (4) means that for judging whether a fact is or not
proved, the Court is entitled to take into consideration all
matters before it which shall include the statement of the
witnesses, admissions of the parties, confession of the accused,
documents proved in evidence, judicial notice, demeanour of
witnesses, local inspections and presumptions.
 The term ―believes it to exist‖ in the definition of ―proof‖ is a
―judicial belief‖ of the Judge based on logical/rational thinking
and the power of reason, and the Court is required to give

-5-
reasons for the belief. The reasons are live links between the
mind of the decision maker and the belief formed. Reasons
convey judicial idea in words and sentences. Reasons are
rational explanation of the conclusion. Reason is the very life of
law. It is the heart beat of every belief and without it, law
becomes lifeless. Reasons also ensure transparency and fairness
in the decision making process. The reasons substitute
subjectivity by objectivity. Recording of reasons also play as a
vital restraint on possible arbitrary use of the judicial power.
The recording of reasons serve the following four purposes:-

- To clarify the thought process.

- To explain the decision to the parties.

- To communicate the reasons to the public.

- To provide the reasons for an appellate Court to consider.

 Non-recording of reasons would cause prejudice to the litigant


who would be unable to know the ground which weighed with
the Court and also cause impediment in his taking adequate
grounds before the appellate Court in the event of challenge.
 Nothing can be said to be ―proved‖, however much material
there may be available, until the Court believes the fact to exist
or considers its existence so probable that a prudent man will act
under the supposition that it exists.

-6-
 For example, ten witnesses may say that they saw the sun rising
from the West and all the witnesses may withstand the cross-
examination, the Court would not believe it to be true being
against the law of nature and, therefore, the fact is ―disproved‖.
In mathematical terms, the entire evidence is multiplied with
zero and, therefore, it is not required to be put on judicial scales.
Where the Court believes the case of both the parties, their
respective case is to be put on judicial scales to apply the test of
preponderance.
 The approach of the Trial Court has to be as under:-
i) If on consideration of all the matters before it, the Court
believes a fact to exist or considers its existence probable,
the fact is said to be ‗proved‘. On the other hand, if the
Court does not believe a fact either to exist or probable,
such fact is said to be ‗disproved‘. A fact is said to be ‗not
proved‘ if it is neither proved nor disproved.
ii) The test whether a fact is proved is such degree of
probability as would satisfy the mind of a reasonable man
as to its existence. The standard of certainty required is of
a prudent man. The Judge like a prudent man has to use its
own judgment and experience and is not bound by any rule
except his own judicial discretion, human experience, and
judicial sense.

-7-
(d) Article 129 of the Qanun-e-Shahadat Order:
“Court may presume existence of certain facts: The Court may
presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to the
facts of the particular case.”

Illustrations
The Court may presume—
(a) that a man who is in possession of stolen goods soon after the theft
is either the thief or has received the goods knowing them to be
stolen, unless he can account for his possession ;
(b) that an accomplice is unworthy of credit, unless he is corroborated
in material particulars ;
(c) that a bill of exchange, accepted or endorsed, was accepted or
endorsed for good consideration ;
(d) that a thing or state of things which has been shown to be in
existence within a period shorter than that within which such things or
states of things usually cease to exist, is still in existence ;
(e) that judicial and official acts have been regularly performed ;
(f) that the common course of business has been followed in particular
cases;
(g) that evidence which could be and is not produced would, if
produced, be unfavourable to the person who withholds it ;

-8-
(h) that, if a man refuses to answer a question which he is not
compelled to answer by law, the answer, if given, would be
unfavourable to him;
(i) that when a document creating an obligation is in the hands of the
obligor, the obligation has been discharged;
But the Court shall also have regard to such facts as the following, in
considering whether such maxims do or do not apply to the particular
case before it;

as to illustration (a) : A shopkeeper has in his till marked rupee soon


after it was stolen, and cannot account for its possession specifically,
but is continually receiving rupees in the course of his business ;
as to illustration (b) : A, a person of the highest character, is tried for
causing a man's death by an act of negligence in arranging certain
machinery, B, a person of equally good character, who also took part
in the arrangement, describes precisely what was done, and admits
and explains the common carelessness of A and himself ;
as to illustration (b) : A crime is committed by several persons A, B
and C, three of the criminals are captured on the spot and kept apart
from each other. Each gives an account of the crime implicating D
and the accounts corroborate each other in such a manner as to render
previous concert highly improbable;
as to illustration (c) : A, the drawer of a bill of exchange, was a man
of business. B, the acceptor, was a young and ignorant person,
completely under A's influence;

-9-
as to illustration (d) : It is proved that a river ran in a certain course
five years ago. But it is known that there have been floods since that
time which might change its course ;
as to illustration (e): A judicial act, the regularity of which is in
question, was performed under exceptional circumstances ;
as to illustration (f): The question is, whether a letter was received. It
is shown to have been posted, but the usual course of the post was
interrupted by disturbances;
as to illustration (g) : A man refuses to produce a document which
would bear on a contract of small importance on which he is sued, but
which might also injure the feelings and reputation of his family;
as to illustration (h) : A man refuses to answer a question which he is
not compelled by law to answer, but the answer to it might cause loss
to him in matters unconnected with the matter in relation to which it is
asked ;
as to illustration (i) : A bond is in possession of the obligor, but the
circumstances of the case are such that he may have stolen it,
 Article 129 is a useful device to aid the Court in its quest for
truth by using common sense as a judicial tool. Article 129
recognizes the general power of the Court to raise inferences as
to the existence or non-existence of unknown facts on proof or
admission of other facts.
 Presumption of fact is a rule in law of evidence that a fact
otherwise doubtful may be inferred from certain other proved
facts.

- 10 -
 The source of presumptions is the common course of natural
events, human conduct and public or private business, and the
article proceeds on the assumption that just as in nature there
prevails a fixed order of things, so the volitional acts of men
placed in similar circumstances exhibits, on the whole, a distinct
uniformity which is traceable to the impulses of human nature,
customs and habits of society.
 The illustrations though taken from different spheres of human
activity, are not exhaustive. They are based upon human
experience and have to be applied in the context of the facts of
each case. The illustrations are merely examples of
circumstances in which certain presumptions may be made.
Other presumptions of a similar kind in similar circumstances
can be made under the provisions of the section itself.
 Presumption in law of evidence is a rule indicating the stage of
shifting the burden of proof. From a certain fact or facts the
Court can draw an inference and that would remain until such
inference is either disproved or dispelled.
 Presumptions of fact can be used by the Courts in the course of
administration of justice to remove lacunae in the chain of direct
evidence before it. The function of a presumption is to fill a gap
in evidence.
 Article 129 applies to both civil and criminal proceedings.
 Whether or not a presumption can be drawn under the article in
a particular case depends ultimately upon the facts and

- 11 -
circumstances of each case. No hard and fast rule can be laid
down. Human behaviour is so complex and room must be left
for play in the joints. It is not possible to formulate a series of
exact propositions and confluent human behaviour within
straitjackets.
 No rule of evidence can guide the Judge on the fundamental
question whether evidence as to a relevant fact should be
believed or not. Secondly, assuming that the Judge believes very
few cases, guide him on the question what inference he should
draw from it as to assist a Judge in the very smallest degree in
determining the master question of the whole subject – whether
and how far he ought to believe what the witnesses say? The
rules of evidence do not guide what inference the Judge ought to
draw from the facts in which, after considering the statements
made to him, he believes. In every judicial proceeding whatever
these two questions – Is this true, and, if it is true what then? -
ought to be constantly present in the mind of the Judge, and the
rules of evidence do not throw the smallest portion of light upon
them.

(e) Article 162 of Qanun-e-Shahadat Order, a Curative


provision, it says:
“No new trial for improper admission or rejection of evidence:
The improper admission or rejection of evidence shall not be ground
of itself for a new trial or reversal of any decision in any case, if it

- 12 -
shall appear to the Court before which such objection is raised that,
independently of the evidence objected to and admitted, there was
sufficient evidence to justify the decision, or that, if the rejected
evidence had been received, it ought not to have varied the decision.‖

Article 162 of the Qanun-e-Shahadat Order, 1984 provides that


improper admission or rejection of evidence shall not be ground of
itself for a new trial or reversal of any decision in any case, if it shall
appear to the Court before which such objection is raised that,
independent of the evidence objected to and admitted, there was
sufficient evidence to justify the decision, or that, if the rejected
evidence had been received, it ought not to have varied the decision.

In 2Abdul Rahim v. The King Emperor, AIR 1946 PC 82, the Privy
Council examined the scope of Section 167 (read Article 162 of the
Qanun-e-Shahadat Order) and held as under:

The first question submitted relates to the effect of the misreception of


evidence. It has been found by the High Court that in the present case
material evidence was improperly admitted. What are the powers and
what is the duty of the High Court in such circumstances? It was
contended for the appellant that the evidence improperly admitted
might have so seriously prejudiced the minds of the jury as to have
brought about a failure of justice and that he was entitled on a new
trial to have the verdict of a jury on proper evidence. To this
submission Section 167 of the Indian Evidence Act in their Lordship's
opinion affords a complete and conclusive answer. The improper

- 13 -
admission of evidence is thereby expressly declared not to be a
ground of itself for a new trial. The appellate Court must apply its
own mind to the evidence and after discarding what has been
improperly admitted decide whether what is left is sufficient to justify
the verdict. If the appellate Court does not think that the admissible
evidence in the case is sufficient to justify the verdict, then it will not
affirm the verdict and may adopt the course of ordering a new trial or
take whatever other course is open to it. But the appellate Court, if
satisfied that there is sufficient admissible evidence to justify the
verdict, is plainly entitled to uphold it.

(f) Conclusion.
To summarise, the Court is required to take into consideration all “the
matters before it” which shall include the statements of the witnesses,
disclosures, recoveries, circumstances, documents proved in evidence,
judicial notice, demeanour of witnesses and presumptions and then
apply the judicial mind (based on logical or rationale thinking and
power of reason). If on such consideration, the Court believes the
prosecution case to exist or consider it existence probable beyond
reasonable doubt, the prosecution case is said to be ―proved‖. On the
other hand, if the Court does not believe the prosecution case either to
exist or probable, it is said to be ―disproved‖.

- 14 -
CHAPTER-IV

ORAL EVIDENCE.

(a) “Article 70. Proof of facts by oral evidence: All facts,


except the contents of documents, may be proved by oral evidence.‖

(b) “Article 71. Oral evidence must be direct: Oral


evidence must, in all cases whatever be direct, that is to say—
If it refers to a fact, which could be seen, it must be the evidence of a
witness who says he saw it;
If it refers to a fact, which could be heard, it must be the evidence of a
witness who says he heard it;
If it refers to a fact, which could be perceived by any other sense or in
any other manner, it must be the evidence of a witness who says he
perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is
held, it must be the evidence of the person who holds that opinion on
those grounds.
Provided that the opinions of experts expressed in any treaties
commonly offered for sale and the grounds on which such opinions
are held, maybe proved by the production of such treaties if the author
is dead, or cannot be found, or has become incapable of giving
evidence, or cannot be called as a witness without an amount of delay
or expense which the Court regards as unreasonable:

Page - 1 -
Provided further that, if oral evidence refers to the existence or
condition of any material thing other than a document, the Court may,
if it thinks fit, require the production of such material thing for its
inspection:
Provided further that, if a witness is dead, or can not be found or has
become incapable of giving evidence, or his attendance cannot be
procured without an amount of delay or expense which under the
circumstances of the case the Court regards as unreasonable, a party
shall have the right to produce, ―shahada ala al-shahadah‖ by which a
witness can appoint two witnesses to depose on his behalf, except in
the case of Hudood.‖

(c) “Article 2 (1) (c) defines “evidence” includes:-


i) all statements which the Court permits or requires to be made
before it by witnesses, in relation to matters of fact under
inquiry; such statements are called oral evidence; and
ii) all documents produced for the inspection of the Court; such
documents are called documentary evidence;‖

―The word evidence considered in relation to laws, includes all legal


means, exclusive of mere argument, which tend to prove or disprove
any matter of fact, the truth of which is submitted to judicial
investigation. This term and the word prove or offence used as
synopsis but the later is applied by accurate logician later to the effect
of evidence then to evidence itself.

-2-
Oral evidence has been defined by the order to be ―all statement
which the court permits or requires to be made before it by the
witnesses in relation to matters of facts under inquiry‖.
The oral evidence must in all cases be direct that i.e., it must consist
of declaration by the witnesses that he perceived by his own senses
the facts to which he testify. Thus, if A is charged with the murder of
B and the facts alleged by witnesses in support of the charge are as
follows:
a) A came running from the scene of the murder at 12 o‘clock.
b) Some one screamed out at the same time and place, ―A you are
murdering me‖.
c) A left his house at 11:30 am vowing that he would be revenged
on B for pressing so hard for his debt.
d) There was blood at the scene of the murder and on A hand and
clothes.
e) There were tracks of footsteps from the scene of murder to A‘s
house, which corresponded with A‘s shoes.
f) The wound which B received was, in my opinion, of a character
to cause death, and could not be inflicted by himself.
g) The deceased said: ―The sword-below inflicted by A has killed
me‖
h) A said to me: ―I killed B because I was desperate‖.
i) A told me that he was deeply indebted to B.

-3-
All above circumstances, statements and opinions would be relevant
fact and the rule requires that in each instance they must be proved by
direct evidence, that is,
 The fact that A came running from the scene of murder as
alleged, must be proved by a witness, who tells the court that he
himself saw A so running;
 the fact of screams heard by the second witness must be proved
by the second witness telling the court that he did hear such
screams;
 the fact of A have been vowed, shortly before murder, to be
revenged on B must be proved by the third witness, who heard
the vow;
 so the blood by the person who saw it the footsteps by the
person who tracked and compared them;
 the doctor‘s opinion as to the wound, by the doctor testifying i.e.
his opinion;
 the dying man‘s statement and the accused‘s confession by a
person who heard them.
They must not be proved by the evidence of person to whom any of
the witnesses abovenamed may have told what they heard, saw or
thought.

(i) Principle-
Direct evidence is the best evidence. Derivative or second-hand
evidence is excluded owing to its infirmity as compared to original

-4-
source. It is the cardinal rule of law of evidence that the best evidence
be brought before the Court. The provisions of Article 71 (requiring
oral evidence to be direct) are based on this rule.
Such evidence need to be not merely enumerated but weighed. The
real test are how consistent the story is with itself, how it stands the
test of cross-examination, and how far it fit in with the rest of the
evidence and the circumstances of the case. If the witnesses are prima
facie interested or disinterested, if they changed or developed their
story from time to time these are also matters that ought to be
regarded.
Cardinal Maxim of criminal jurisprudence lays down where two
explanations are possible the one in favour of the accused must be
accepted.
It is now well settled principle that Maxim falsus in uno falsus in
omnibus [false in one particular, false in all] does not apply to the
criminal trial in our country and it is duty of the court to disengage the
truth from the falsehood, to sift the grain from chaff instead of taking
an easy course of rejecting the prosecution case in its entirety merely
on the basis of few infirmities.

(ii) Kinds of Witnesses.

(a) Independent Witness.


A witness is normally considered to be an independent witness unless
he springs from sources which are likely to be tainted and that
means the witness has cause, such as enmity with the accused, to wish

-5-
to implicate him falsely, ordinarily a close relative would be the last
to screen the real culprit and falsely; implicate an innocent person.

Experience reminds us that civilized people are generally insensitive


when a crime is committed even in their presence. They withdraw
both from the victim and the vigilante. They keep themselves away
from the court unless it is inevitable. They think that crime like civil
dispute is between two individuals or parties and they should not
involve themselves. This kind of apathy of the general public is
indeed unfortunate, but it is there everywhere whether in village life,
towns or cities. One cannot ignore this handicap with which the
investigating agency has to discharge its duties. The court therefore,
instead of doubting the prosecution case for want of independent
witness must consider the broad spectrum of the prosecution version
and then search for the nugget of truth with due regard to probability,
if any, suggested by the accused. The court, however, must bear in
mind that witnesses to a serious crime may not react in a normal
manner. Nor do they react uniformly.

(b) Injured Witness.


The evidence of an injured witness must be given due weightage
being a stamped witness, thus, his presence cannot be doubted. His
statement is generally considered to be very reliable and it is unlikely
that he has spared the actual assailant in order to falsely implicate
someone else. The testimony of an injured witness has its‘ own
relevancy and efficiency as he has sustained injuries at the time and
-6-
place of occurrence and this lends support to has testimony that he
was present during the occurrence. Thus, the testimony of an injured
witness is accorded a special status in law. The witness would not
like or want to let his actual assailant go unpunished merely to
implicate a third person falsely for the commission of the offence.

(c) Related Witness.


 A court should examine the evidence of a related and interested
witness having an interest in seeing the accused punished and
also having some enmity with the accused with greater care and
caution than the evidence of a third party disinterested and
unrelated witness.
 A witness may be called ―interested‖ only when he or she
derives in seeing an accused person punished. A witness who
is a natural one and is the only possible eyewitness in the
circumstances of a case cannot be said to be ―interested‖.
Witness had no interest in protecting the real culprit and falsely
implicating the accused.
 A related or interested witness may not be hostile to the
assailant; but, if he is, his evidence must be examined very
carefully and all infirmities taken into account.
 Where evidence is given by near relatives of the victim and
alleged murderer is alleged to be an enemy of the
family, Court must examine their evidence (relatives) very
carefully. But a person may be interested in the victim, being

-7-
his relation or otherwise and may not necessarily be hostile to
the accused.
 Merely because the witnesses are related to the complainant or
the deceased, their evidence cannot be thrown out. If their
evidence is consistent and true, the fact of being a relative is not
a factor to affect the credibility of a witness and the courts have
to scrutinize their evidence meticulously with a little care.
 Mere fact of relationship far from being the foundation for
criticism of the evidence is often a sure guarantee of truth. The
factor of eye-witnesses being close relations of the deceased
―is no ground for not acting upon the testimony if it is otherwise
reliable in the sense that the witnesses were competent
witnesses, who could be expected to be near the place of
occurrence and could have seen what happened‖.
 Eyewitness being the brother of the deceased (the relationship)
would add value to his evidence because he would be interested
in getting the real culprit, rather than an innocent person,
punished.
 ―In a murder trial the relationship of the eyewitness to the
deceased is not a sufficient ground for discrediting of his
testimony unless a motive is alleged and proved against him to
spare the real assailant and falsely involve another person in the
place of the assailant.‖ A close relative who is a very natural
witness cannot be regarded as an interested witness. The term
―interested‖ postulates that the person concerned must have

-8-
some direct interest in seeing that the accused person is
somehow or the other convicted either because he had some
animus with the accused or for some other reason‖.
―Inimical witnesses, courts are required to scrutinize their
testimony with anxious care to find out whether their testimony
inspires confidence to be acceptable notwithstanding the
existence of enmity, where enmity is proved to be the motive for
the commission of the crime, accused cannot urge that despite
proof of motive of the crime, the witnesses proved to be inimical
should not be relied on. … Testimony of eyewitnesses, which is
otherwise convincing and consistent, cannot be discarded simply
because on the ground that the deceased was related to the eye-
witnesses or previously there were some disputes between the
accused and the deceased on the witnesses. The existence of
animosity between the accused and the witnesses may, in some
cases, give rise to the possibility of the witnesses exaggerating
the role of some of the accused or living to rape in more persons
as accused persons… Such a possibility is required to be
ascertained on the facts of the case…‖
―Relationship is not a factor to affect credibility of a witness. It is
more often than not that a relation would not conceal the actual culprit
and make allegations against an innocent person. Foundation has to
the laid if the plea of false implication is made in such a case. In such
a case, the court has to adopt a careful approach and analyse evidence
to find out whether it is cogent and credible.‖

-9-
The relationship perse does not affect the credibility of a
witness. Merely because a witness happens to be a relative of the
victim of the crime, he/she cannot be characterized as an ―interested
witness.‖ It is trite that the term ―interested‖ postulates that the person
concerned has some direct or indirect interest in seeing that the
accused is somehow or other convicted either because he had some
animus with the accused on for some other oblique motive.
―If evidence is found to be consistent and true, the fact of being a
relative cannot by itself discredit their evidence. Word, relationship,
is not a factor to effect the credibility of a witness and the courts have
to scrutinize their evidence meticulously with a little care.‖
If the incident having taken place near the market around day time,
the prosecution should have attempted to secure public witnesses who
had witnessed the incident, but at the same time one cannot lose sight
of the ground realities that the members of the public are generally
insensitive and reluctant to come forward to report and depose about
the crime even though it is committed in their presence. Even
otherwise it will be erroneous to view as a rule of universal
application that non-examination of a public witness by itself gives
rise to an adverse inference against the prosecution or that the
testimony of a relative of the victim, which is otherwise creditworthy,
cannot be relied upon unless corroborated by public witnesses.

(d) Interested.
The word ―Interested‖ in the general or popular sense means only,
―having an interest or concern‖. But in the matter of appreciation of
- 10 -
evidence in criminal cases, courts, generally speaking, have not gone
by the popular meaning; courts have adopted a special meaning
namely, that a person can be regarded as an interested witness only if
he, activated by ill feeling towards the accused or for extraneous
reasons, wishes to ensure that accused is convicted and sent to
prison. ―Extraneous reason‖ can only mean some reason other than
the incident in which his close relation or friend sustained serious
injuries. Ordinarily, such ―extraneous reason‖ can only be ill feeling
or strong antipathy towards the accused.
―… When a criminal court has to appreciate evidence given by
witnesses who are partisan or interested, it has to be very careful in
weighing such evidence. Whether or not there are serious
discrepancies in the evidence; whether or not evidence strikes the
court as genuine, whether or not the story disclosed by the evidence is
probable, are all matters which must be taken into account. But it
would be… unreasonable to contend that evidence…should be
discarded only on the ground that it is partisan that it is evidence of
partisan or interested witnesses…Judicial approach has to be cautious
in dealing with such evidence‖.
While appreciating the evidence of witness considering him as
an interested witness, the court must bear in mind that the
term ―interested‖ postulates that the witness must have some direct
interest in having the accused somehow or the other convicted for
some other reason.

- 11 -
When the eyewitnesses are stated to be interested and inimically
disposed towards the accused, it has to be noted that it would not be
proper to conclude that they would shield the real culprit and rope in
innocent persons. The truth or otherwise of the evidence has to be
weighed pragmatically. The court would be required to analyse the
evidence of related witnesses and those witnesses who are inimically
disposed towards the accused. But if after careful analysis and
scrutiny of their evidence, the version given by the witnesses appears
to be clear, cogent and credible, there is no reason to discard the
same. Conviction can be made on the basis of such evidence.
Mere relationship would not taint the testimony of a natural witness.

A close relative who is a natural witness cannot be regarded as an


interested witness. The term ‗interested‘ postulates that the witness
must have some direct interest in having the accused somehow or the
other convicted for some animus or for some other reason.

Mere relationship does not disqualify a witness. Witnesses who are


related to the victim are as competent to depose the facts as any other
witness.

There is no hard-and-fast rule that family members can never be true


witnesses to the occurrence and that they will always depose falsely
before the court. It will always depend upon the facts and
circumstances. Such evidence cannot be ignored or thrown out solely
because it comes from a person closely related to the victim. The
court must be cautious in appreciating and accepting the evidence

- 12 -
given by the interested witnesses but the court must not be suspicious
of such evidence.
There is no bar in law in examining family members, or any other
person, as witnesses.
When the statement of witnesses, who are relatives, or are parties
known to the affected party, is credible, reliable, trustworthy,
admissible in accordance with the law and corroborated by other
witnesses or documentary evidence of the prosecution, there would
hardly be any reason for the Court to reject such evidence.

(e) Highly Interested.


A witness who is a relative of the deceased or victim of a crime
cannot be characterised as ‗interested‘.
It is now a well-settled principle of law that only because the
witnesses are not independent ones may not by itself be a ground to
discard the prosecution case. If the prosecution case has been
supported by the witnesses and no cogent reason has been shown to
discredit their statements, a judgment of conviction can certainly be
based thereupon.

(f) Police Witness.


That there is no absolute command of law that the police officers
cannot be cited as witnesses and their testimony should always be
treated with suspicion. Ordinarily, the public at large show their
disinclination to come forward to become witnesses. If the testimony

- 13 -
of the police officer is found to be reliable and trustworthy, the court
can definitely act upon the same.
It is a fallacious impression that when recovery is effected pursuant to
any statement made by the accused the document prepared by the
investigating officer contemporaneous with such recovery must
necessarily be attested by the independent witnesses. Of course, if any
such statement leads to recovery of any article it is open to the
investigating officer to take the signature of any person present at that
time, on the document prepared for such recovery. But if no witness
was present or if no person had agreed to affix his signature on the
document, it is difficult to lay down, as a proposition of law, that the
document so prepared by the police officer must be treated as tainted
and the recovery evidence unreliable. The court has to consider the
evidence of the investigating officer who deposed to the fact of
recovery based on the statement elicited from the accused on its own
worth.
It is an archaic notion that actions of the police officer should be
approached with initial distrust. Such a notion was lavishly
entertained during the British period and policemen also knew about
it. Its hangover persisted during post-independent years but it is time
now to start placing at least initial trust on the actions and the
documents made by the police. At any rate, the court cannot start with
the presumption that the police records are untrustworthy. As a
proposition of law the presumption should be the other way around.

- 14 -
There is a market distinction between a case in which the
offence charged with is the recovery of the article itself, like recovery
of an unlicensed Kalashnikov and a case in which the article
recovered e.g. a crime weapon is it be used as a corroborative piece of
evidence. In the former case if the witness to the recovery were police
personnel though it was possible to have two mashirs from the
locality where recovery was made their testimony in the absence of
other reliable pieces of evidence would not warrant conviction where
as in the latter case if other pieces of evidence on record are free from
doubt the testimony of the police personnel if otherwise free any legal
infirmity may be accepted":
1
[Mushtaq Ahmed v. The State (PLD 1996 SC 574)]

(g) Chance Witness.


If a murder is committed in a street, only passers-by will be witnesses
and their evidence cannot be brushed aside or viewed with suspicion
on the ground that they were mere chance witnesses.
In a murder trial by describing the independent witnesses as ―chance
witnesses‖ it cannot be implied thereby that their evidence is
suspicious and their presence at the scene doubtful. Murders are not
committed with previous notice to witnesses; soliciting their presence.
If murder is committed in a dwelling house, the inmates of the house
are natural witnesses. If murder is committed in a street, only passers-
by will be witnesses. Their evidence cannot be brushed aside or
viewed with suspicion on the ground that they are mere ―chance
witnesses‖. The expression ―chance witness‖ is borrowed from
- 15 -
countries where every man's home is considered his castle and
everyone must have an explanation for his presence elsewhere or in
another man's castle. It is quite unsuitable an expression in a country
where people are less formal and more casual, at any rate in the
matter of explaining their presence. Therefore, there is no substance
in the plea that PW evidence which is clear and cogent is to be
discarded.
There can be cases where it would be but inevitable to examine such
witnesses because, as the events occurred, they were the natural or the
only eyewitnesses available to give the complete version of the
incident. One has to draw a clear distinction between a chance witness
and a natural witness. Both these witnesses have to be relied upon
subject to their evidence being trustworthy and admissible in
accordance with the law.

(h) Child Witness-


The Qanun-e-Shahadat, no where uses the term ―Child Witness‖. It is
a synonymous term for a witness of tender age. But the case law and
the common language seem to be agreed on the equivalent use of both
the terms. There is no special provision for a ―Child Witness‖ in the
Qanun-e-Shahadat. The subject has been included as a species of the
general provision of ―the competency of witnesses‖. Article 3 of
Qanun-e-Shahadat defines the competency of a witness and deals with
as to ―who may testify‖. The article clearly and unequivocally lays
down that all persons shall be competent to testify excepting those,
whom the court considers that they are prevented from understanding
- 16 -
the questions put to them or from giving rational answers to them by
tender years, etc. Thus there is a limited incompetency in case of
children incapable of giving evidence. Every witness is to be judged
from two points: his competency and credibility. The same rule
applies to a child witness. If you look at the wording of the article it is
evident that as all persons of tender years are also competent to testify
unless the court considers them to be incompetent owing to the want
of the power of understanding the questions put to them or giving
rational answers to them. There is no legal presumption as regards the
incompetency of a child witness. It is also clear from this provision of
the article that the question of competency of a child has been wholly
left to the consideration of a presiding judge. Though the law does not
prohibit the right of objection, still the final verdict as regards the
competency of a child witness rests with the judge and not with the
parties. The competency of a child witness depends upon its
intellectual capacity and his rational mode of giving his testimony. If
the judge is satisfied on these points he can consider him to be a
competent witness.
A child as a witness has been looked upon, with different view points.
One has to see its place in a judicial proceeding. Dr. Hans Gross, who
has been described by many as the father of criminal research, has set
out in his book, Criminal Investigation, 1934 Ed.2 Pages 61-62, the
nature and character of evidence given by children. He has said that
―in one sense the best witnesses are children of seven to ten years of
age as at that time love and hatred, ambitious and hypocrisy,

- 17 -
consideration of religion, rank, etc. are yet unknown to them‖. He has,
however, pointed out the great drawbacks which have made men
distrustful of the capacity of children. They are apt to say much more
from imagination than they actually known. To quote his words, ―the
child, as yet devoid of principles, places great faith in the words of
grown up people; so, if, a grown up person brings influence to bear on
it, especially some times after the occurrence, the child will imagine it
has really seen what it has been led to believe‖.

(i) Hostile Witness:


Witnesses turning hostile particularly, in cases involving the honour
killing, or under pressure or otherwise.

Generally in honour killings eyewitnesses are not forthcoming to


support the case of the prosecution. This is a biggest problem before
the investigating agency and the court while dealing with such type of
cases. In such cases where the witnesses of honour killing become
hostile, a heavy duty is cast on the Court to closely scrutinize the
evidence in order to reach to the truth. It is the duty of the Court to
separate the grain from the chaff. The Court is to ensure that no
innocent person be punished. The Court is also equally has to take
care that no guilty person escaped the punishment.

On account of frequent turning of witnesses as hostile, either due to


threats, coercion, lures and monetary considerations at the instance of
those in power, their henchmen and hirelings, political clout and
patronage and innumerable other corrupt practices ingeniously

- 18 -
adopted to smother and stifle truth and realities coming out to surface
rendering truth and justice to become ultimate casualties.

It has a greater duty and responsibility i.e. to render justice, in a case


where the role of the prosecuting agency itself is put in issue and is
said to be hand in glove with the accused, parading a mock fight and
making a mockery of the criminal justice administration itself.

As pithily stated in Jennison v. Baker (1972) 1 All E.R. 1006)3, “The


law should not be seen to sit by limply, while those who defy it go
free, and those who seek its protection lose hope.‖ Courts have to
ensure that accused persons are punished and that the might or
authority of the State are not used to shield themselves or their men. It
should be ensured that they do not wield such powers which under the
Constitution has to be held only in trust for the public and society at
large.

―Honour killing‖ is a class of offences by itself. Its motivation


stemming from a deeply entrenched belief in the tribal/caste system, it
is completely unacceptable. It needs serious examination as to why
such murders are not categorized as separate offences in the penal
provision, except such accused or the convict has been excluded being
‗Wali‘ under Section 305 P.P.C.

Several experts have noted that perpetrators are mostly eminent and
extended members of the family and community of the victim
resulting in many cases of honour killing going unreported and these
unreported cases are never brought to justice. Banking on the
- 19 -
importance of caste structures and religious divides which still
permeates society, it has been found that the perpetrators use social,
political and economic influence as well intimidation to obstruct
investigation and to delay proceedings so as to escape prosecution.

In honour killings, the murdered person is the victim of extreme


physical violence, perhaps prior emotional torture as well, resulting in
his/her death. The right to choose your life partner or whom you
associate with is a fundamental right, it is an integral part of the right
to life. Even though marriage as a right has not received statutory
recognition in any legislation in India, judicial pronouncement has,
however, held that the individual‗s privacy of marriage and dignity
are essential concomitants of the right to life and liberty guaranteed
under Article 19 of the Constitution which are to be afforded
protection (equal provision is Article 9 of our Constitution).

- 20 -
CHAPTER-V

OMISSION OF ADMINISTRATION OF OATH OR


AFFIRMATION DOES NOT INVALIDATE ANY EVIDENCE.

The main purpose of administering of oath is to render persons who


give false evidence liable to prosecution and further to bring home to
the witness the solemnity of the occasion and to impress upon him the
duty of speaking the truth, further such matters only touch credibility
and not admissibility. However, in view of the provisions of Section
13 of Oath Act, 1873, the omission of administration of oath or
affirmation does not invalidate any evidence. The Section 13 of Oath
Act1, reads as follows:-
(i) Proceeding and evidence not invalidated by
omission of oath or irregularity.— No omission to take any
oath or make any affirmation, no substitution of any one for any other
of them and no irregularity whatever in the form in which any one of
them is administered, shall invalidate any proceeding or render
inadmissible any evidence, whatever in or in respect of which such
omission, substitution or irregularity took place, or shall affect the
obligation of a witness to state the truth.

Page - 1 -
-2-
CHAPTER-VI

APPRECIATION OF EVIDENCE.

(i) Omissions, Contradictions and its effect.

It is settled proposition of law that even if there are some omissions,


contradictions and discrepancies, the entire evidence cannot be
disregarded. After exercising care and caution and sifting through the
evidence to separate truth from untruth, exaggeration and
improvements, the court comes to a conclusion as to whether the
residuary evidence is sufficient to convict the accused. Thus, an
undue importance should not be attached to omissions, contradictions
and discrepancies which do not go to the heart of the matter and shake
the basic version of the prosecution's witness. As the mental abilities
of a human being cannot be expected to be attuned to absorb all the
details of the incident, minor discrepancies are bound to occur in the
statements of witnesses.

(ii) What Amount to Omissions?


Section 161(2) of the Code of Criminal Procedure requires the person
making the statements ―to answer truly all questions relating to such
case, put to him by such officer....‖. It would, therefore, depend on the
questions put by the police officer. It is true that a certain statement
may now be used under Section 162 of Code of Criminal Procedure to

Page - 1 -
contradict such witness in the manner provided by Article 140 of
Qanun-e-Shahadat Order.
The law was as enunciated in 1Tahsildar Singh v. State of Uttar
Pradesh [AIR 1959 SC 1012] as follows:
―omissions, unless by necessary implication be deemed to be
part of the statement, cannot be used to contradict the statement
made in the witness-box;‖
Whether an eye-witness testimony can be discarded only on the basis
of some discrepancies when it is corroborated in material particulars?
 ―Once the eye witness account is corroborated by material
particulars and is reliable, it would not be justified to discard his
evidence only on the ground that there are some discrepancies in
the evidence. In the deposition of witnesses there are always
normal discrepancies due to normal errors of observation, loss
of memory, mental disposition of the witnesses and the like.
Unless, therefore, the discrepancies are ―material discrepancies‖
so as to create a reasonable doubt about the credibility of the
witnesses, the Court will not discard the evidence of the
witnesses…...‖
 While appreciating the evidence, the court has to take into
consideration whether the contradictions/ omissions were of
such magnitude so as to materially affect the trial. Minor
contradictions, inconsistencies, embellishments or
improvements in relation to trivial matters, which do not affect

-2-
the core of the case of the prosecution, must not be made a
ground for rejection of evidence in its entirety.
Where the omission(s) amount to a contradiction, creating a serious
doubt regarding the truthfulness of a witness, and the other witness
also makes material improvements before the court, in order to make
the evidence acceptable, it would not be safe to rely upon such
evidence…...
While appreciating the evidence of a witness, the approach must be
whether the evidence of the witness read as a whole appears to have a
ring of truth. Once that impression is found, it is undoubtedly
necessary for the court to scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and infirmities pointed
out in the evidence as a whole and evaluate them to find out whether
it is against the general tenor of the evidence and whether the earlier
evaluation of the evidence is shaken as to render it unworthy of belief.
Minor discrepancies on trivial matters not touching the core of the
case, hypertechnical approach by taking sentences torn out of context
here or there from the evidence, attaching importance to some
technical error committed by the investigating officer not going to the
root of the matter would not ordinarily permit rejection of the
evidence as a whole.
 If the court before whom the witness gives evidence had the
opportunity to form the opinion about the general tenor of the
evidence given by the witness, the appellate court which had not
this benefit will have to attach due weight to the appreciation of

-3-
evidence by the trial court and unless the reasons are weighty
and formidable, it would not be proper for the appellate court to
reject the evidence on the ground of variations or infirmities in
the matter of trivial details. Minor omissions in the police
statements are never considered to be fatal. The statements
given by the witnesses before the police are meant to be brief
statements and could not take place of evidence in the court.
Small/Trivial omissions would not justify a finding by court that
the witnesses concerned are liars. The prosecution evidence may
suffer from inconsistencies here and discrepancies there, but that
is a shortcoming from which no criminal case is free. The main
thing to be seen is whether those inconsistencies go to the root
of the matter or pertain to insignificant aspects thereof. In the
former case, the defence may be justified in seeking advantage
of incongruities obtaining in the evidence. In the latter, however,
no such benefit may be available to it.
 In the deposition of witnesses, there are always normal
discrepancies, howsoever honest and truthful they may be.
These discrepancies are due to normal errors of observation,
normal errors of memory due to lapse of time, due to mental
disposition, shock and horror at the time of occurrence and
threat to the life. It is not unoften that improvements in earlier
version are made at the trial in order to give a boost to the
prosecution case, albeit foolishly. Therefore, it is the duty of the
court to separate falsehood from the truth. In sifting the

-4-
evidence, the court has to attempt to separate the chaff from the
grains in every case and this attempt cannot be abandoned on
the ground that the case is baffling unless the evidence is really
so confusing or conflicting that the process cannot reasonably be
carried out. In the light of these principles, this Court will have
to determine whether the evidence of eyewitnesses examined in
this case proves the prosecution case.
 There are bound to be some discrepancies between the
narrations of different witnesses when they speak on details, and
unless the contradictions are of a material dimension, the same
should not be used to jettison the evidence in its entirety.
Incidentally, corroboration of evidence with mathematical
niceties cannot be expected in criminal cases. Minor
embellishment, there may be, but variations by reason therefor
should not render the evidence of eyewitnesses unbelievable.
Trivial discrepancies ought not to obliterate an otherwise
acceptable evidence....
 The court shall have to bear in mind that different witnesses
react differently under different situations: whereas some
become speechless, some start wailing while some others run
away from the scene and yet there are some who may come
forward with courage, conviction and belief that the wrong
should be remedied. As a matter of fact it depends upon
individuals to individuals. There cannot be any set pattern or
uniform rule of human reaction and to discard a piece of

-5-
evidence on the ground of his reaction not falling within a set
pattern is unproductive and a pedantic exercise.
In all criminal cases, normal discrepancies are bound to occur in the
depositions of witnesses due to normal errors of observation, namely,
errors of memory due to lapse of time or due to mental disposition
such as shock and horror at the time of occurrence.
 Where the omissions amount to a contradiction, creating a
serious doubt about the truthfulness of the witness and other
witnesses also make material improvement while deposing in
the court, such evidence cannot be safe to rely upon. However,
minor contradictions, inconsistencies, embellishments or
improvements on trivial matters which do not affect the core of
the prosecution case, should not be made a ground on which the
evidence can be rejected in its entirety. The court has to form its
opinion about the credibility of the witness and record a finding
as to whether his deposition inspires confidence.
―Exaggerations per se do not render the evidence brittle. But it
can be one of the factors to test credibility of the prosecution
version, when the entire evidence is put in a crucible for being
tested on the touchstone of credibility.‖
 Mere marginal variations in the statements of a witness cannot
be dubbed as improvements as the same may be elaborations of
the statement made by the witness earlier. The omissions which
amount to contradictions in material particulars i.e. go to the
root of the case/materially affect the trial or core of the

-6-
prosecution's case, render the testimony of the witness liable to
be discredited.
 Discrepancies found in the ocular account of two witnesses
unless they are so vital, cannot affect the credibility of the
evidence of the witnesses. There are bound to be some
discrepancies between the narrations of different witnesses
when they speak on details, and unless the contradictions are of
a material dimension, the same should not be used to jettison the
evidence in its entirety. Incidentally, corroboration of evidence
with mathematical niceties cannot be expected in criminal cases.
Minor embellishment, there may be, but variations by reason
therefore should not render the evidence of eyewitnesses
unbelievable. Trivial discrepancies ought not to obliterate an
otherwise acceptable evidence.
 Minor discrepancies on trivial matters not touching the core of
the case, hypertechnical approach by taking sentences torn out
of context here or there from the evidence, attaching importance
to some technical error committed by the investigating officer
not going to the root of the matter would not ordinarily permit
rejection of the evidence as a whole.
 Even honest and truthful witnesses may differ in some details
unrelated to the main incident because power of observation,
retention and reproduction differ with individuals.
 No true witness can possibly escape from making some
discrepant details. It is only when discrepancies in the evidence

-7-
of a witness are so incompatible with the credibility of his
version that the court is justified in jettisoning his evidence.
Merely because there is inconsistency in evidence it is not
sufficient to impair the credit of the witness. A former statement
though seemingly inconsistent with the evidence need not
necessarily be sufficient to amount to contradiction. Only such
of the inconsistent statement which is liable to be ‗contradicted‘
would affect the credit of the witness. The Court shall have to
bear in mind that different witnesses react differently under
different situations: There cannot be any set pattern.
 It is indeed necessary to note that one hardly comes across a
witness whose evidence does not contain some exaggeration or
embellishment — sometimes there could even be a deliberate
attempt to offer embellishment and sometimes in their
overanxiety they may give a slightly exaggerated account. The
court can sift the chaff from the grain and find out the truth from
the testimony of the witnesses. Total repulsion of the evidence is
unnecessary. The evidence is to be considered from the point of
view of trustworthiness.
 Some discrepancies or some variations in minor details of the
incident would not demolish the case of the prosecution unless it
affects the core of the prosecution case. Unless the discrepancy
in the statement of witness or the entire statement of the witness
is such that it erodes the credibility of the witness himself, it

-8-
may not be appropriate for the Court to completely discard such
evidence.
 Court has to see is whether these variations are material and
affect the case of the prosecution substantially. Every variation
may not be enough to adversely affect the case of the
prosecution.
 The court must not attach undue importance to minor
discrepancies. The discrepancies which do not shake the basic
version of the prosecution case may be discarded. The
discrepancies which are due to normal errors of perception or
observation should not be given importance. The errors due to
lapse of memory may be given due allowance. The court by
calling into aid its vast experience of men and matters in
different cases must evaluate the entire material on record by
excluding the exaggerated version given by any witness. When a
doubt arises in respect of certain facts alleged by such witness,
the proper course is to ignore that fact only unless it goes into
the root of the matter so as to demolish the entire prosecution
story.

(iii) Falsus in uno, falsus in omnibus.


„Falsus in uno, falsus in ombnibus‟ is not a recognized principle in
administration of criminal justice and the court has to give paramount
importance to ensure that there is no miscarriage of justice.

-9-
Undoubtedly, there may be some exaggeration in the evidence of the
prosecution witnesses. However, it is the duty of the court to unravel
the truth under all circumstances.
Even if major portion of the evidence is found to be deficient, in case
residue is sufficient to prove guilt of an accused, it is the duty of the
court to separate grain from chaff. Falsity of particular material
witness or material particular would not ruin it from the beginning to
end. The maxim falsus in uno, falsus in omnibus has no application in
India and the witness cannot be branded as a liar.
Mere marginal variations in the statements cannot be dubbed as
improvements as the same may be elaborations of the statement made
by the witness earlier. The omissions which amount to contradictions
in material particulars i.e. go to the root of the case/materially affect
the trial or core of the prosecution case, render the testimony of the
witness liable to be discredited.

(iv) Appreciation of the testimony of an eye-witness


involves consideration of the following factors:-

i. Was he at or near the scene of occurrence so as to enable him to


witness the occurrence and see and identify the victim or victims and
the assailant or assailants?
ii. Was the assailant personally known to the witness? If not, what
are the indications or circumstances showing his capacity to identify
the assailant?

- 10 -
iii. Is his evidence of good quality and consistent? Did the court
notice anything particular in his demeanour? Did his previous
statement(s) seriously contradict his evidence in court and if so, what
is the explanation? How well or ill he fared in cross-
examination. How does his version of the occurrence compare with
the version of other eye-witnesses, if any? The circumstances of the
case, including the medical evidence support the version given by the
witness.
iv. If the witness sustained an injury in the occurrence at the
hands of the same accused, was he likely to point his finger falsely at
an innocent person?
v. Was the witness a natural witness? If he was a chance witness,
is his explanation for his presence at the scene at the time in question
reasonable?
vi. Is the version given by the witness such that it is likely to have
happened in the light of the circumstances mentioned in Article 129
and whether the version is probable in the circumstances?
vii. Did the eyewitness have any motive to implicate the accused
falsely? Was he interested against the accused for any reason other
than the particular assault referred to in the charge?
viii. If the eye witness is a close relation or friend of the victim,
did he have any extraneous reason or motive to falsely implicate the
accused in this incident?
ix. To what extent, if any, the version given by the eye witness
is supported or contradicted by other evidence and circumstances

- 11 -
arising in the case relating to motive for the crime, preparation,
conduct of the accused, admissions of and admissible (relevant)
confession of the accused.
x. A close relation or friend of the victim who, though he was
not present at the scene and hence did not watch the occurrence,
might be persuaded to believe that it was the accused who caused
injuries to the victim and to give evidence claiming to be an
eyewitness; however if he had really seen the occurrence and
identified the assailant, who was really not the accused, is it likely or
probable that he would or could be persuaded to tell the police or give
evidence that he saw the accused cause injuries to the victim since by
such conduct he would be allowing the really guilty to escape; this
would be so provided he did not have powerful extraneous reason
such as strong enmity with the accused, to implicate him falsely,
provided also that there is strong foundation laid for the theory of
false implication.

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CHAPTER-VII

CIRCUMSTANTIAL EVIDENCE-

(i) Circumstantial proof is in its nature “proof by


inference”. It is a conclusion from facts proved ----- ―common
observation shows that certain ―circumstances‖ give rise to certain
presumption‖.
The circumstantial evidence is the evidence of the circumstances as
oppose to direct evidence.
Baraon Parke in 1Towells case (1850) 2C & K 309 observed ―direct
evidence of person who saw the fact, if that proof is offered upon the
testimony of men whose veracity you have no reason to doubt, is the
best proof; but on the other hand it is equally true with regard to the
circumstantial evidence that the circumstances may often be so clearly
proved. So closely connected with it or lead to one result in
conclusion that the mind may be as well convinced as if it were
proved by eye witness.
Circumstantial evidence can be basis of accused person‘s conviction
if it is of such a character that it is solely inconsistence with the
innocence of the accused and is consistent only with his guilt.
What is meant by direct evidence and by circumstantial evidence is
that as proof one goes directly to establish the culpability of the
accused person in commission of the offence, the other brings the
guilt at home to him by placing certain circumstances from which the

Page - 1 -
inference is absolutely irresistible that accused has committed the
offence.

It is one of the establish principle of law that a witness may lie but not
the circumstance. Direct ocular evidence is not necessary for proofing
through the person behind the crime. A guilt of a person can be
proved by circumstantial evidence also. However, the Court must
adopt the casious approach while disproving circumstantial
evidence.‖

(ii) Principles governing probative value of


circumstantial evidence.
The evidence tendered in a court of law is either direct or
circumstantial. Evidence is said to be direct if it consists of an
eyewitness account of the facts in issue in a criminal case.

On the other hand, circumstantial evidence is evidence of relevant


facts from which, one can, by process of intuitive reasoning, infer
about the existence of facts in issue or factum probandum. In dealing
with circumstantial evidence there is always a danger that conjecture
or suspicion lingering on mind may take place of proof. Suspicion,
however, strong cannot be allowed to take place of proof and,
therefore, the court has to be watchful and ensure that conjectures and
suspicions do not take place of legal proof. However, it is not
derogation of evidence to say that it is circumstantial. Human agency
may be faulty in expressing picturisation of actual incident, but the

-2-
circumstances cannot fail. Therefore, many a times it is aptly said that
―men may tell lies, but circumstances do not‖.

In cases where evidence is of a circumstantial nature, the


circumstances from which the conclusion of guilt is to be drawn
should, in the first instance, be fully established. Each fact sought to
be relied upon must be proved individually. However, in applying this
principle a distinction must be made between facts called primary or
basic on the one hand and inference of facts to be drawn from them
on the other. In regard to proof of primary facts, the court has to judge
the evidence and decide whether that evidence proves a particular fact
and if that fact is proved, the question whether that fact leads to an
inference of guilt of the accused person should be considered. In
dealing with this aspect of the problem, the doctrine of benefit of
doubt applies. Although there should not be any missing links in the
case, yet it is not essential that each of the links must appear on the
surface of the evidence adduced and some of these links may have to
be inferred from the proved facts. In drawing these inferences, the
court must have regard to the common course of natural events and to
human conduct and their relations to the facts of the particular case.
The court thereafter has to consider the effect of proved facts.

 In deciding the sufficiency of the circumstantial evidence for the


purpose of conviction, the court has to consider the total
cumulative effect of all the proved facts, each one of which
reinforces the conclusion of guilt and if the combined effect of

-3-
all these facts taken together is conclusive in establishing the
guilt of the accused, the conviction would be justified even
though it may be that one or more of these facts by itself or
themselves is/are not decisive. The facts established should be
consistent only with the hypothesis of the guilt of the accused
and should exclude every hypothesis except the one sought to be
proved. But this does not mean that before the prosecution can
succeed in a case resting upon circumstantial evidence alone, it
must exclude each and every hypothesis suggested by the
accused, howsoever, extravagant and fanciful it might be. There
must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused, where
various links in chain are in themselves complete, then the false
plea or false defence may be called into aid only to lend
assurance to the court.
 Legal position is that with a view to base a conviction on
circumstantial evidence, the prosecution must establish all the
incriminating circumstances by reliable and clinching evidence
and the circumstances so proved must form a chain of events as
would permit no conclusion other than one of the guilt of the
accused; that suspicion, however grave it may be; cannot be a
substitute for proof and the court shall take utmost care in

-4-
finding an accused guilty only on the basis of circumstantial
evidence.
 Where there is no direct evidence and the decision has to rest on
circumstantial evidence, such evidence must satisfied the
following test:

(1) The circumstances from which an inference of guilt is sought


to be drawn, must be cogently and firmly established;

(2) Those circumstances should be of a definite tendency


unerringly pointing towards guilt of the accused;

(3) The circumstances, taken cumulatively, should form a chain


so complete that there is no escape from the conclusion that
within all human probability the crime was committed by the
accused and none else; and

(4) The circumstantial evidence in order to sustain conviction


must be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused and such
evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence.

If a legal principle is that for the murder of kidnapped person, there


should necessarily be independent evidence apart from the
circumstances, it would be providing a safe jurisprudence for
protecting such criminal activities. A country cannot afford to lay

-5-
down such legal principle insulating the murderer of their activities of
killing kidnapped innocents outside the ken of others.

-6-
CHAPTER-VIII

REVERSAL OF BURDEN OF PROOF, ITS PRINCIPLE.


(i) Article 122 of Qanun-e-Shahadat Order says:

“Burden of proving fact especially within knowledge: When any


fact is especially within the knowledge of any person, the burden of
proving that fact is upon him.‖
Illustrations
(a) When a person does an act with some intention other than that
which the character and circumstances of the act suggest, the burden
of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The
burden of proving that he had a ticket is on him.
The pristine rule that the burden of proof is on the prosecution. The
doctrine of presumption is not alien to the above rule, nor would it
impair the temper of the rule. On the other hand, if the traditional rule
relating to burden of proof of the prosecution is allowed to be
wrapped in pedantic coverage, the offenders in serious offences
would be the major beneficiaries and the society would be the
casualty.
Presumption of fact is an inference as to the existence of one fact
from the existence of some other facts, unless the truth of such
inference is disproved. Presumption of fact is a rule in law of
evidence that a fact otherwise doubtful may be inferred from certain

Page - 1 -
other proved facts. When inferring the existence of a fact from other
set of proved facts, the court exercises a process of reasoning and
reaches a logical conclusion as the most probable position. The above
principle has gained legislative recognition in Pakistan when Article
129 of Qanun-e-Shahadat Order is incorporated in the Qanun-e-
Shahadat Order, 1984. It empowers the court to presume the existence
of any fact which it thinks likely to have happened. In that process the
court shall have regard to the common course of natural events,
human conduct etc. in relation to the facts of the case.
When it is proved to the satisfaction of the Court that deceased was
abducted by the accused and they took him out of that area, the
accused alone knew what happened to him until he was with them. If
he was found murdered within a short time after the abduction the
permitted reasoning process would enable the Court to draw the
presumption that the accused have murdered him. Such inference can
be disrupted if the accused would tell the Court what else happened to
deceased at least until he was in their custody.
 The legal principle embodied in Article 122 of Qanun-e-
Shahadat Order which reads as follows: "When any fact is
especially within the knowledge of any person, the burden of
proving that fact is upon him."
 The article is not intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond reasonable
doubt. But the article would apply to cases where the
prosecution has succeeded in proving facts from which a

-2-
reasonable inference can be drawn regarding the existence of
certain other facts, unless the accused by virtue of his special
knowledge regarding such facts, failed to offer any explanation
which might drive the court to draw a different inference.
The general rule that in a criminal case the burden of proof is on the
prosecution and Article 122 is certainly not intended to relieve it of
that duty. On the contrary, it is designed to meet certain exceptional
cases in which it would be impossible, or at any rate
disproportionately difficult for the prosecution to establish facts
which are 'especially' within the knowledge of the accused and which
he could prove without difficulty or inconvenience. The word
'especially' stresses that. It means facts that are pre-eminently or
exceptionally within his knowledge.
 The article would apply to cases where the prosecution has
succeeded in proving facts from which a reasonable inference
can be drawn regarding the existence of certain other facts,
unless the accused by virtue of his special knowledge regarding
such facts, failed to offer any explanation which might drive the
court to draw a different inference. Article 122 of Qanun-e-
Shahadat Order is designed to meet certain exceptional cases, in
which, it would be impossible for the prosecution to establish
certain facts which are particularly within the knowledge of the
accused.
 If the accused failed to explain any inculpating circumstance
even in statement under Section 342 Code of Criminal

-3-
Procedure. Such a conduct also provides for an additional link in
the chain of circumstances. The fact as what had happened to
the victim after his abduction by the accused, has been within
the special knowledge of the accused, therefore, he could have
given some explanation. In such a fact-situation, the Court has
to draw the presumption that the accused is responsible for his
adduction, illegal detention and murder.
There may be cases where, on account of close proximity of place and
time between the event of the accused having been last seen with the
deceased and the factum of death, a rational mind may be persuaded
to reach an irresistible conclusion that either the accused should
explain how and in what circumstances the victim suffered the death
or should own the liability for the homicide.
 When any fact is especially within the knowledge of a person,
the burden of proving that fact is upon him. Thus, if a person is
last seen with the deceased, he must offer an explanation as to
how and when he parted company. He must furnish an
explanation which appears to the court to be probable and
satisfactory.
 Article 129 of the Qanun-e-Shahadat Order which permits ―The
court to presume existence of any fact which it thinks likely to
have happened, regard being had to the common course of
natural events, human conduct and public and private business,
in their relation to facts of the particular case.‖ As to how the
presumption is to be drawn.

-4-
Presumption of fact is nothing but logical inference of the existence of
one fact drawn from other proved or known facts, without the help of
any artificial rules of law, and they are always rebuttable. The legal
consequence of drawing a presumption is to cast on the opponent the
duty of producing contrary evidence. A presumption upon a matter of
fact, means that common experience shows the fact to be so generally
true that courts may notice the truth. The presumptions of fact are in
truth but mere arguments of which the major premise is not a rule of
law. They depend upon their own natural force and efficiency in
generating belief or conviction in the mind, as derived with those
connections, which are shown by experience, irrespective of any legal
relations. The effect of this provision is to make it perfectly clear that
courts of justice are to use their own common sense and experience in
judging of the effect of particular facts.

Perhaps the most important rule as to presumptions is that they must


be based upon facts and not upon inferences or upon other
presumptions. No presumption can with safety be drawn from another
presumption. The fact presumed should have direct relation with the
fact from which the presumption is drawn; but when the facts are
established from which presumptions may be legitimately drawn, it is
the province of the Court to deduce the presumption or inference of
fact.

If the connection is too remote or uncertain, it is the duty of the court


to exclude either the testimony from which the presumption is sought

-5-
to be deduced on the ground that the evidence affords no proper
foundation for any presumption. Where the fact, giving rise to a
presumption under Article 129, is undisputed and no explanation
negativing the presumption is offered, the Court is justified in
accepting it.

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CHAPTER-IX

RES GESTAE, PRINCIPLES OF:


(i) Definition.

Res Gestae is Latin expression or res gesta, ―literally things done or


things transacted‖ has long served as a catchword. The phase has
frequently served both to let in utterances which in strictness were not
admissible and to exclude utterances which might well have been
admitted under heresay exceptions.

John H. Wigmore, A students 1Text Book ―Law of Evidence‖279


(1935)

The Res Gestae embraces not only this actual facts of the transaction
and the circumstances surrounding it, but the matter immediately
antecedent to and having a direct causal connection with it, as well as,
immediately following it and so closely connected with it as to form
in reality a part of this occurrence.

(2Black‘s Law Dictionary).


3
Phipson has noticed in Chapter 31 that ―res gestae” is a latin phrase
without an exact English translation. The expression is used in the
common law to refer to ―the events at issue or others
contemporaneous with them.”

Page - 1 -
Evidence of motive would fall in the category of what is known as
‗previous relationship‘ as also as ‗background evidence‘ which are
evidence res gestae and has been treated as exceptions to the bar
against hearsay evidence, hence admissible.

(ii) The 469th Report of the Law Commission of India


on the Indian Evidence Act. Section 8 of the Indian Evidence Act
[Article 21 of Qanun-e-Shahadat Order] has been considered in para
7.54 of the report. The observations of the Law Commission on
Section 8 of the Act in para 7.57 and 7.58 read thus:

―7.57. The classes of facts which become relevant under Section 8 fall
into three broad groups, namely, (a) facts showing motive, (b) facts
showing preparation, and (c) facts showing conduct,- in each case, it
being necessary that some connection between the fact sought to be
brought under Section 8 and some other fact already in issue or
relevant, is established.

7.57A. As to motive, as the etymology of the word indicates, a motive


is strictly, that which moves or influences the mind. It has been said
that an action without a motive would be an effect without a cause;
the particulars of external situation and conduct will, in general,
correctly denote the motive for the criminal action. Statements
accompanying acts are often necessary to show the animus of the
action.

7.58. In some cases, motive may have an importance of its own, being
an ingredient of the crime or tort, - e.g. motive on a privileged
-2-
occasion in relation to defamation. When motive is such an
ingredient, it is not merely a relevant fact, but is a part of the ―fact in
issue‖ as defined in the Act, because on motive depends the existence
of the liability in such cases. Then, there may be cases where motive
may affect the extent of the liability, and is, therefore, a fact in issue.
In all these cases, evidence of motive can be given under Section 5,
and recourse to Section 8 is not needed. However, even where Section
5 does not apply, motive may be relevant under Section 8.

It has been said that the section embodies, in a statutory form, the rule
of evidence that the testimony of res gestae is always allowable when
it goes to the root of the matter concerning the commission of the
crime.

7.59. In a consideration of the cause or occasion of a fact, or the state


of things under which it happened, nothing can be more material than
to know whether any person had an interest in its happening, or took
any measures calculated to bring it about. For this reason, motive and
preparation become of the utmost importance. If A is found murdered,
the fact that B had a strong motive for wishing A dead is, so far as it
goes, a piece of evidence against B. So, if A is poisoned with arsenic,
the fact that B, shortly before, procured arsenic, or made
arrangements by which he would have access to A‘s food, points, in a
measure, to B being the poisoner, and would be relevant fact at his
trial.‖

-3-
Motive is thus not only a relevant fact, is an integral part the fact in
issue.

As per the Law Commission Report, the provision of Section 8 is the


common law rule of evidence in a statutory form that testimony of res
gestae is admissible when it goes to the root of the matter concerning
the commission of the crime.

(iii) Rule against hearsay and exceptions to the rule


against hearsay.
The commentary on the rule against hearsay and exceptions to the
rule against hearsay by Chief Justice M. Monir in the ‗5Law of
Evidence‟ (15th Edition) is instructive. Section 60 of the Indian
Evidence Act [Article 71 of Qanun-e-Shahadat Order] is the statutory
provision incorporating the rule that oral evidence in all cases, must
be direct. There are however some exceptions to this general rule. The
learned author has noted the exceptions:-

The Privy Council in the case of Subramaniam v. Public Prosecutor,


(1956) 1 WLR 9656 observed, ―Evidence of a statement made to a
witness who is not himself called as a witness may or may not be
hearsay. It is hearsay and inadmissible when the object of the
evidence is to establish the truth of what is contained in the statement.
It is not hearsay and is admissible when it is proposed to establish by
the evidence, not the truth of the statement but the fact that it was
made. The fact that it was made quite apart from its truth, is
frequently relevant in considering the mental state and conduct
-4-
thereafter of the witness or some other persons in whose presence
these statements are made…

For example, the informant, mother of the deceased, when she along
with her son was returning to her residence from laundry, the accused
appeared and pointed pistol on the chest of the deceased and assaulted
him with dagger. Just after the occurrence of murder a large number
of persons including family members came on the spot on cry of the
informant to whom she disclosed about the occurrence. The evidence
of the aforesaid witnesses is not totally inadmissible or irrelevant.
Their statements are admissible on the point of conduct of the
informant as well as factum of statement given by the informant just
after the occurrence. It be also admissible on the point of recovery of
blood stained dagger and revolver sized from the place of
occurrence…‖

In the section dealing with statements made by persons not examined


as witnesses which may in some cases amount to ―original‖ as
distinguished from ―hearsay‖ or ―derivative‖ evidence, the text states
as follows :-

―Statements made by persons not examined as witnesses may in some


cases amount to ―original‖ as distinguished from ―hearsay‖ or
―derivative‖ evidence e.g., statements which are part of the res gestae,
(Section 6 of the Evidence Act, 1872) [Article 19 of Qanun-e-
Shahadat Order, 1984] whether actually constituting a fact in issue, as
a libel or a contract, or and explaining accompanying a fact in issue,

-5-
as the cry of the mob during a riot, statements expressing knowledge,
intent, or mental or bodily feeling (Section 14 of the Evidence Act,
1872) (Article 27 of Qanun-e-Shahadat Order, 1984), statements
amounting to acts of ownership, as leases, licenses, and grants
(Section 13 of the Evidence Act, 1872) (Article 26 of Qanun-e-
Shahadat Order, 1984): complaints in cases of rape; statements
constituting motive (Section 8 of the Evidence Act, 1872) [Article 21
of Qanun-e-Shahadat Order, 1984]. Verbal statements made by the
deceased in respect of the circumstances of the transaction which
resulted in his death can be proved by the oral evidence of persons
who heard them, in other words, by persons to whom they were made
(Dr. Jai Nand v. Rex, 1949 A 291 : 1949 ALJ 60: 50 Cr LJ 4987).‖

(iv) Articles 19 to 21 of the Qanun-e-Shahadat Order


are evidence res gestae which are exceptions to the rule of hearsay.

a) “19. Relevancy of facts forming part of same


transaction. - Facts which though not in issue, are so connected
with a fact-in-issue as to form part of the same transaction, are
relevant, whether they occurred at the same time and place or at
different times and places.‖

Illustrations

(a) A is accused of the murder of B by beating him. Whatever was


said or done by A or B or the by-standers at the beating, or so shortly
before or after it as to form part of the transaction, is a relevant fact.

-6-
(b) A is accused of waging war against Pakistan by taking part in an
armed insurrection in which property is destroyed, troops are
attacked, and goals are broken open. The occurrence of these facts is
relevant, as forming part of the general transaction, though A may not
have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a
correspondence. Letters between the parties relating to the subject out
of which the libel arose, and forming part of the correspondence in
which it is contained, are relevant facts, though they do not contain
the libel itself.
(d) The question is, whether certain goods ordered from B were
delivered to A. The goods were delivered to several intermediate
persons successively. Each delivery is a relevant fact.
b) “20. Facts which are occasion, cause or effect of
facts-in-issue:- Facts which are the occasion, cause, or effect,
immediate or otherwise, of relevant facts, or facts-in-issue, or which
constitute the state of things under which they happened, or which
afforded an opportunity for their occurrence or transaction, are
relevant.‖

―The rule embodied in Article 19 of Qanun-e-Shahadat Order is


usually known as the rule of res gestae. What it means is that a fact
which, though not in issue, is so connected with the fact in issue ―as
to form part of the same transaction‖ becomes relevant by itself. To
form a particular statement as part of the same transaction utterances

-7-
must be simultaneous with the incident or substantially
contemporaneous that is made either during or immediately before or
after its occurrence‖.

(v) “The 8Law of Evidence” (23rd Edition, 2010) by


Ratanlal and Dhirajlal wherein the expression ―transaction”
appearing in Section 6 of Evidence Act (Article 19 of Qanun-e-
Shahadat Order) has been explained thus:

“2. Transaction – Meaning of


If facts form part of the transaction which is the subject of enquiry,
manifestly evidence of them ought not be excluded. The question is
whether they do form part, or are too remote to be considered really
part of the transaction before the court. A transaction is a group of
facts so connected together as to be referred to by a single legal name,
as a crime, a contract, a wrong or any other subject of inquiry be
relevant to the fact in issue, although it may not be actually in issue,
and although, if it were not part of the same transaction it might be
excluded as hearsay. [9Chain Mahto v. The Emperor (1906) 11 CWN
266, 270]

A transaction consists both of the physical acts and the words


accompanying such physical acts whether spoken by the person doing
such acts, the person to whom they were done or any other person or
persons. Such words are admissible in evidence as parts of a
transaction.

-8-
Illustration. (a) under this section shows that what is said and done by
the accused A and the victim B, at the time of the incident, if given
out by the by-standers, form part of the same transaction and becomes
relevant. The statement that in illustration. (a) is relevant only if it is
that of a person who has seen the actual occurrence and who uttered it
simultaneously with the incident or so soon thereafter as to make it
reasonably certain that the speaker is still under the stress of the
excitement caused by his having seen the incident.

What is admissible under this section is a fact which is connected


with the fact in issue as ‗part of the same transaction‘. A transaction
may consist of a single incident occupying a few minutes or it may be
spread over a variety of facts, etc. occupying a much longer time and
occurring on different occasion or different places. Where the
transaction consists of different acts, in order that the chain of such
acts may constitute the same transaction, they must be connected
together by proximity of time, proximity or unity of place, continuity
of action and community of purpose or design. [ 10Hadu v. State 1950
Cut 509: AIR 1951 Ori 53]

Illustration (b) indicates that acts done at different places and times
may form part of the same transaction.

A transaction in its ordinary sense is some business or dealing which


is carried on or transacted between two or more persons [11Gujju Lall
v. Fatteh Lall (1880) 6 CAL 171 (FB)]. Such of those statements
made whether at the same time and place or at different time and

-9-
places, as are connected with the fact in issue also form part of the
same transaction. [12Krishna Ram Das v. State, AIR 1964 ASSAM
53]. Facts leading to the circumstances as to the nearness of the place,
continuity of the act and the purpose or design have been considered
as a part of the same transaction. [13Babu Lal v. W.I.T. Ltd. AIR 1957
Cal 709; Kashmira Singh v. State, 1965 JK 37 ; 14Kridey Singh v. R.,
AIR 1946 Pat 40].

Where the children of the deceased were heard crying and saying that
their mother was being killed, it was held that such statements of the
children can be admitted under this section. (15Sawal v. State, AIR
1974 SCC 778)

When a witness stated that he was told by other witnesses that the
accused was beating the deceased at about the time of occurrence, it
was held that such evidence was admissible as part of res gestae.
[16Badruddin v. State of Maharashtra 1981 CrLJ 729 (SC)].‖

(vi) In 17Law of Evidence by Chief Justice M. Monir


(15th Edition Vol 1), on the point, the authoritative statement is
as follows:-

“11. Section 6 of Evidence Act (Article 19 of Qanun-e-


Shahadat Order) is an Exception to Hearsay Rule.
Section 6 of the Evidence Act is an exception to the aforesaid hearsay
rule and admits of certain carefully safeguarded and limited
exceptions and makes the statement admissible when such statements

- 10 -
are proved to form a part of the res gestae, to form a particular
statement as a part of the same transaction or with the incident or soon
thereafter, so as to make it reasonably certain that the speaker is still
under stress of excitement in respect of the transaction in question.
[18Vasa Chandrasekhar Rao v. Ponna Satyanarayana, AIR 2000 SC
2138 : (2000) 6 SCC 286 : 2000 CrLJ 3175; 19Javed Alam v. State of
Chattisgarh, 2009 (8) SCALE 68]

Section 6 of the Evidence Act is an exception to the general rule


whereunder the hearsay evidence becomes admissible. But for
bringing such hearsay evidence within the provisions of Section 6,
what is required to be established is that it must be almost
contemporaneous with the acts and there should not be an interval,
which would allow fabrication. The statements sought to be admitted,
therefore, as forming part of res gestae, must have been made
contemporaneously with the acts or immediately thereafter.

12. Statements Admitted under Section 6 are Original


Evidence and not Hearsay
The statements which are admissible under this section do not come
under the rule against hearsay because, as has been aptly remarked,
―in such cases it is the act that creates the hearsay, and not the hearsay
the act‖ [20Phipson Evidence, 14th Edn., para 29-13]. It is no
objection to their relevancy that they are admissions in favour of their
maker, as such statements admissible for or against either party
(Phipson Evidence, 14th Edn., para 29-14).

- 11 -
13. Maker of the Statement Need not be Called to
Prove it
Since the section makes such statements a ―relevant fact‖, they may
be proved by the evidence of any person who hears them, and it is not
necessary that their maker should appear in Court to prove them
(21Dysart Peerage, 6 app Case P 516; Baleman v. Bailey, 5 TR 512;
Phipson Evidence, 14th Edn., P. 58).

14. Statements which are admissible as Part of the


Transaction are Substantive Evidence.
In English law, statements which become admissible as part of the
transaction are not, in general, evidence of the truth of the matter
stated. [Phipson Evidence, 14th Edn., P. 712] It is, however,
submitted that, under the Act, such statements may be treated as
substantive evidence, i.e., as evidence of the truth of the matter stated,
inasmuch as the section does not in any way limit their relevancy to
any particular purpose.

15. Statements which are a Part of the Res Gestae may


be admissible under Section 157 (Article 153) or
Section 155 (Article 151).
A statement which is admissible under Section 6 of Evidence Act,
1872 (Article 19 of Qanun-e-Shahadat Order, 1984) as a part of the
transaction may also be used, under Section 157 of Evidence Act,
1872 (Article 153 of Qanun-e-Shahadat Order, 1984) or Section 155
of Evidence Act, 1872 (Article 151 of Qanun-e-Shahadat Order,

- 12 -
1984), to corroborate or to contradict the testimony of its maker in
Court. The place where a murder was committed was occupied by a
number of persons besides the deceased and the eye-witnesses. The
evidence showed that these persons came up immediately after the
murder and it was alleged that they were informed by the eye-
witnesses as to who the culprits were. It was held, that though those
persons did not actually see the culprits, their evidence was material,
not with a view to prove the actual fact of murder, which was in
‗issue‘, but to prove the ‗relevant fact‘ that, just after the event, the
eye-witnesses disclosed the names of the culprits to those who came
there, this relevant fact being so connected with the fact in issue as to
have necessitated the giving of evidence on that relevant fact itself.
(22Malendra Pal v. State, 155 ALL 323) Where the witnesses stated
that they not only saw but also relied on the statements of other
persons made immediately after the occurrence that the accused was
the assailant, the Supreme Court ruled that even if it were taken that
the witnesses relied on the statements of other persons made at the
scene immediately after the occurrence, the evidence was admissible
as that of a ‗relevant fact‘ (23Jetha Ram v. State of Rajasthan, AIR
1979 SC 22 (para 1): (1978) 4 SCC 425).‖

(vii) Extracts from judicial pronouncements


mentioned in the Law of Evidence by Sarkar.
24
The commentary by Sarkar in the Law of Evidence extracts from
judicial pronouncements and notes that the following has been held

- 13 -
admissible as res gestae under Section 6 of the Evidence Act (Article
19 of Qanun-e-Shahadat Order):

―For the application of Section 6, it is necessary that the fact must not
be too remote but a part of single transaction. In the instant case it was
immediately after the incident that prosecution witness came to the
spot on hearing shouts and gained the knowledge through another
person present there that it was the accused appellant who had stabbed
the victim. This evidence is clearly admissible under Section 6 of the
Evidence Act and same is corroboration of the eye-witness account
[25Arjun v State of U.P. 2003 (46) ACC 233 (ALL)]

(1) In a Calcutta case it has been observed that the ―essence of


the principle of res gestae is that since the hearing of the
witness concerned about the occurrence from the mouth of
the eye-witnesses who has not given deposition about the
occurrence before the Court was immediately after the
occurrence, so much so, that it formed part of the same
transaction and the said eye-witness had no time or scope to
look up any false story‖. (26Rameshwar Hembram v. State of
W.B. 2002 Cal CrLR(Cal) 276).
(2) Section 6 of the Evidence Act pertain to the principle of res-
gestae which means, as per Law Lexicon, ―Things done, or
liberally speaking the facts of the transactional the facts of a
transaction explanatory of an act or showing a motive for
acting; matters incidental to a main fact and explanatory of it;

- 14 -
including acts and words which are so closely connected with
a main fact as will constitute a part of it, and without a
knowledge of which the main fact might not be properly
understood, even speaking for themselves, though the
instinctive words and acts of participants, not the words and
acts of participants when narrating the events, the
circumstances, facts and declaration which grow out of the
main fact, and contemporaneous with it and serve to illustrate
its character or those circumstances which are the automic
and undersigned incidents of a particular litigated act and are
admissible when illustrative of such act [27Vinod Kumar
Boderbhai v. State of Gujarat 1999 CriLJ 1650 (1662)
(Guj)]‖
(3) The principle or law embodied in Section 6 of the Evidence
Act is usually known as the rule of res gestae recognised in
English Law. The essence of the doctrine is that fact which,
though not in issue, is so connected with the fact in issue "as
to form part of the same transaction" becomes relevant by
itself. This rule is, roughly speaking, an exception to the
general rule that hearsay evidence is not admissible. The
rationale in making certain statement or fact admissible under
Section 6 of the Evidence Act is on account of the
spontaneity and immediacy of such statement or fact in
relation to the fact in issue. But it is necessary that such fact
or statement must be part of the same transaction. In other

- 15 -
words, such statement must have been made
contemporaneous with the acts which constitute the offence
or atleast immediately thereafter. But if there was an interval,
however slight it may be, which was sufficient enough for
fabrication then the statement is not part of res gestae. In 28R.
v. Lillyman [(1896) 2 QB 167 : (1895-99) All ER Rep 586] a
statement made by a raped woman after the ravishment was
held to be not part of the res gestae on account of some
interval of time lapsing between making the statement and
the act of rape. Privy Council while considering the extent
upto which this rule of res gestae can be allowed as an
exemption to the inhibition against hearsay evidence, has
observed in 29Teper v. R [(1952) 2 All ER 447] thus :

―The rule that in a criminal trial hearsay evidence is admissible if it


forms part of the res gestae is based on the propositions that the
human utterance is both a fact and a means of communication and
that human action may be so interwoven with words that the
significance of the action cannot be understood without the correlative
words and the dissociation of the words from the action would impede
the discovery of the truth. It is essential that the words sought to be
proved by hearsay should be, if not absolutely contemporaneous with
the action or event, at least so clearly associated with it that they are
part of the thing being done, and so an item or part of the real
evidence and not merely a reported statement.‖

- 16 -
 The rule of res-gestae is that the statement should be
spontaneous and should form part of the same transaction, ruling
out any possibility of concoction.

Example:-

Where eye-witnesses resiled from their statements made during


investigation. The witnesses were close to the deceased like colleague
or classmate who were with deceased at the time of her murder. But
the complainant, father of the deceased seeing the deceased condition,
he asked the crowed as to what had happened and where. The
witnesses were in a state of shock and blurted out truthfully the
investigate as to what happened. There was not even the remotest
possibility even a threat of chance, for concoction or improvement by
any one at that conjecture. There was no malice no fabrication or case
of implicating innocent person. Therefore complaints testimony with
regard to statements of witnesses as forming part of res-gestae and
was admissible under Article 19 of Qanun-e-Shahadat Order, despite
the fact that the witnesses turned hostile in the witness box.

(viii) Lord Wilberforce has stated the legal position


thus:
―The mere fact that evidence of a witness includes evidence as to
words spoken by another person who is not called is no objection to
its admissibility. Words spoken are facts just as much as any other
action by a human being. If the speaking of the words is a relevant
fact, a witness may give evidence that they were spoken. A question

- 17 -
of hearsay only arises when the words spoken are relied on
―testimonially‖, i.e, as establishing some fact narrated by the words.
Authority is hardly needed for this proposition but their Lordship will
restate what was said in the judgment of the 30Board in Subramaniam
v. Public Prosecutor (1956) 1 WLR 965 at 970:

Evidence of a statement made to a witness by a person who is not


himself called as a witness may or may not be hearsay. It is hearsay
and inadmissible when the object of the evidence is to establish the
truth of what is contained in the statement. It is not hearsay and is
admissible when it is proposed to establish by the evidence, not the
truth of the statement, but the fact that it was made.‖
31
(1971) 3 ALL ER 801 at 805, (1972) A.C. 378 Ratten v. R.

 Res gestae is an established exception to the hearsay rule. The


question, therefore, which judges would pose are whether the
evidence was relevant? Whether the statement was spontaneous
without there being opportunity for concoction or distortion and
whether there is a real possibility of error?
32
Phipson refers to the judicial pronouncement reported at (1978) 66
Crl.App. R 252, R v. Nye and Loan in which identification evidence
with regard to the defendant was admitted as part of the res gestae.
The court had asked and answered the following questions:-

―Was there spontaneity in the identification?

Was there an opportunity for concoction?

- 18 -
Was there any real possibility of error?‖

In this case, it was held that the evidence was properly admitted.

Article 21 of Qanun-e-Shahadat Order.

(c) “21. Motive, preparation and previous or


subsequent conduct:

(1) Any fact is relevant which shows or constitutes a motive or


preparation for any fact in issue or relevant fact.

(2) The conduct of any party, or of any agent to any party, or any suit
or proceeding, in reference to such suit or proceeding, or in reference
to any fact-in-issue therein or relevant thereto, and the conduct of any
person an offence against whom is the subject of any proceeding, is
relevant, if such conduct influences or is influenced by any fact-in-
issue or relevant fact, and whether it was previous or subsequent
thereto.

Explanation 1. – The word ―conduct‖ in this article does not include


statements, unless those statements accompany and explain acts other
than statements; but this explanation is not to affect the relevancy of
statements under any other article of this Order.

Explanation 2. – When the conduct of any person is relevant, any


statement made to him or in his presence and hearing, which affects
such conduct, is relevant.‖

- 19 -
Illustrations

(a) A is tried for the murder of B.

(b) xxx xxx xxx

The facts that A murdered C, that B knew that A had murdered C, and
that B had tried to extort money from A by threatening to make his
knowledge public, are relevant.

(c) A is tried for the murder of B by poison. The fact that, before the
death of B, A procured poison similar to that which was administered
to B, is relevant.

(d) The question is whether a certain document is the will of A.

The facts that not long before the date of the alleged will A made
inquiry into matters to which the provisions of the alleged will relate,
that he consulted advocates in reference to making the will, and that
he caused drafts of other wills to be prepared of which he did not
approve, are relevant.
(e) A is accused of a crime.

The facts that, either before or at the time of, or after the alleged
crime, A provided evidence which would tend to give to the facts of
the case an appearance favorable to himself, or that he destroyed or
concealed evidence, or prevented the presence or procured the
absence of persons who might have been witnesses, or suborned
persons to give false evidence respecting it, are relevant.

- 20 -
(f) The question is whether A robbed B.

The facts that, after B was robbed, C said in A‘s presence; ―the Police
are coming to look for the man who robbed B‖, and that immediately
afterwards A ran away, are relevant.

(g) xxx xxx xxx

(h) The question is, whether A committed a crime.

The facts that, A absconded after receiving a letter warning him that
inquiry was being made for the criminal, and the contents of the letter,
are relevant.

(i) A is accused of a crime.

The facts that, after the commission of the alleged crime, he


absconded, or was in possession of property or the proceeds of
property acquired by the crime, or attempted to conceal things which
were or might have been used in committing it, are relevant.

(j) The question is, whether A was ravished.

The facts that, shortly after the alleged rape, she made a complaint
relating to the crime, the circumstances under which, and the terms in
which the complaint was made, are relevant.

The facts that, without making a complaint, she said that she had been
ravished is not relevant as conduct under this article though it may be
relevant as a dying declaration under Article 46, paragraph 1, or as
corroborative evidence under Article 153.

- 21 -
(k) The question is whether A was robbed.

The fact that, soon after the alleged robbery, he, made a complain
relating to the offence, the circumstances under which, and the terms
in which, the complaint was made, are relevant.

The fact that he said he had been robbed without making any
complaint is not relevant, as conduct under this article, though it may
be relevant as a dying declaration under Article 46, paragraph 1, or as
corroborative evidence under Article 153.

(i) Motive.
What constitutes previous relationship; reference may usefully be
made to the commentary on the same in 33Phipson on Evidence (16th
Edition).

(a) Previous relationship cases


In Ball, Lord Atkinson suggested, during argument, that the
prosecution must be entitled to prove previous acts or words of the
accused demonstrating his enmity towards the deceased, as being
probative of guilt on a murder charge. His Lordship saw the evidence
as establishing motive. Though, in context, these remarks might have
been seen to say no more than that the evidence would, in
consequence, come within the permissive part of Lord Herschell
34
L.C.‗s formulation of the similar fact rule in Makin v. Attorney-
General for New South Wales,Kennedy J. had, in an earlier case,
treated previous relationship cases as comprehended by the res gestae

- 22 -
idea. In his words, the matters in question were ―properly admitted to
proof as integral parts of the history of the alleged crime for which the
accused is on his trial.‖

In Berry, doubt was cast upon Lord Atkinson‗s remarks in Ball, but
that case was explained in Williams on the basis that the evidence of
previous relationship was too remote in time from the matters at hand.
In Williams itself, those remarks were said correctly to state the law,
though the case is itself ambiguous as to whether the principle flows
from the res gestae idea or from a Makin-type exception.

The continuing legal force of Ball and a judicial preference for


Williams over Berry, has recently been confirmed by the Court of
Appeal in Phillips. ―Though on the facts of that case, it would have
been possible to justify admission of evidence showing the accused‗s
bad relationship with his wife, who he was accused of murdering, as
rebutting his own claim to have had a good relationship with her, the
court specifically held that evidence was also admissible, in its own
right, as tending to show the accused to have a motive for murdering
her.‖

There is a second extension to the common law res gestae doctrine


which is described as ―35background evidence cases” by Phipson in
paras 19 - 25 which reads as follows:

It is now clear that a second extension to the res gestae doctrine has
taken place. The source of this part of the law is the following

- 23 -
36
statement of Purchas L.J. in Pettman (unreported) (May 2, 1985,
C.A.):

―…….where it is necessary to place before the jury evidence of part


of a continual background of history relevant to the offence charged
in the indictment and without the totality of which the account placed
before the jury would be incomplete or incomprehensible, then the
fact that the whole account involves including evidence establishing
the commission of an offence with which the accused is not charged
is not of itself a ground for excluding the evidence.‖

Though the stated law is capable of encompassing previous


relationship cases, it extends well beyond them. Clearly, evidence
about the parties‗ relationship before the date of the offence could be
described as part of the background of history.

(b) Parameters, importance, contours of Motive.


The parameters laid down by judicial precedents of the importance of
motive in a criminal offence; the contours within which it must be
examined and the nature of the evidence required to establish it.
―motive is a relevant factor in all criminal cases whether based on the
testimony of eye witnesses or circumstantial evidence. The question
in this regard is whether the prosecution must fail because it failed to
prove the motive or whether inability to prove the motive would
weaken the prosecution to any perceptible limit.”
37
(2000) 4 SCC 515, State of U.P. v. Babu Ram

- 24 -
The difference in the significance of proof of motive where
prosecution is based upon circumstantial evidence and where it relies
upon the testimony of eye witnesses in following terms:
 ―The legal position regarding proof of motive as an essential
requirement for bringing home the guilt of the accused is fairly
well settled by a long line of decisions. These decisions have
made a clear distinction between cases where the prosecution
relies upon circumstantial evidence on the one hand and those
where it relies upon the testimony of eyewitnesses on the other.
In the former category of cases proof of motive is given the
importance it deserves, for proof of a motive itself constitutes a
link in the chain of circumstances upon which the prosecution
may rely.‖
 Proof of motive, however, recedes into the background in cases
where the prosecution relies upon an eyewitness account of the
occurrence. That is because if the court upon a proper appraisal
of the deposition of the eyewitnesses comes to the conclusion
that the version given by them is credible, absence of evidence
to prove the motive is rendered inconsequential. Conversely,
even if the prosecution succeeds in establishing a strong motive
for the commission of the offence, but the evidence of the
eyewitnesses is found unreliable or unworthy of credit,
existence of a motive does not by itself provide a safe basis for
convicting the accused. That does not, however, mean that proof
of motive even in a case which rests on an eyewitness account

- 25 -
does not lend strength to the prosecution case or fortify the court
in its ultimate conclusion. Proof of motive in such a situation
certainly helps the prosecution and supports the eyewitnesses.
38
(2011) 3 SCC 654, Sheo Shankar Singh v. State of Jharkhand and
Anr.
Though motive alone cannot form the basis of the conviction “but in
the light of other circumstances, the motive goes a long way in
forging the links in the chain”.
 The legal position as laid down by Wills in his book
‗39Circumstantial Evidence‘ and in prior judicial
pronouncements was relied upon by the court which may
usefully be extracted and reads as follows:
―Motive for the commission of an offence no doubt assumes
greater importance in cases resting on circumstantial evidence
than those in which direct evidence regarding commission of the
offence is available. And yet failure to prove motive in cases
resting on circumstantial evidence is not fatal by itself. All that
the absence of motive for the commission of the offence results
in is that the court shall have to be more careful and circumspect
in scrutinizing the evidence to ensure that suspicion does not
take the place of proof while finding the accused guilty.‖
 ―Absence of motive in a case depending entirely on
circumstantial evidence is a factor that shall no doubt weigh in
favour of the accused, but what the courts need to remember is
that motive is a matter which is primarily known to the accused

- 26 -
and which the prosecution may at times find difficult to explain
or establish by substantive evidence.‖
Human nature being what it is, it is often difficult to fathom the real
motivation behind the commission of a crime. And yet experience
about human nature, human conduct and the frailties of human mind
has shown that inducements to crime have veered around to what
Wills has in his book Circumstantial Evidence said:
―The common inducements to crime are the desires of revenging
some real or fancied wrong; of getting rid of rival or an
obnoxious connection; of escaping from the pressure of
pecuniary or other obligation or burden of obtaining plunder or
other coveted object; or preserving reputation, either that of
general character or the conventional reputation or profession or
sex; or gratifying some other selfish or malignant passion.‖
The legal position as to the significance of motive and effect of its
absence in a given case is fairly well settled by the following
decisions:
40
(2011) 12 SCC 554, Amitava Banerjee v. State of West Bengal.
―In cases where only circumstantial evidence is available at the outset
one normally starts looking for the motive and the opportunity to
commit the crime. If the evidence shows that the accused having a
strong enough motive had the opportunity of committing the crime
and the established circumstances on the record considered along with
the explanation- if any- of the accused, exclude the reasonable
possibility of anyone else being the real culprit then the chain of

- 27 -
evidence can be considered to be complete as to show that within all
human probability the crime must have been committed by the
accused. He may, in that event, safely be held guilty on such
circumstantial evidence…‖
41
(1972) 4 SCC 142, Udaipal Singh v. State of U.P.
―No doubt it is a sound principle to remember that every criminal act
was done with a motive but its corollary is not that no criminal
offence would have been committed if the prosecution has failed to
prove the precise motive of the accused to commit it. When the
prosecution succeeded in showing the possibility of some ire for the
accused towards the victim, the inability to further put on record the
manner in which such ire would have swelled up in the mind of the
offender to such a degree as to impel him to commit the offence
cannot be construed as a fatal weakness of the prosecution. It is
almost an impossibility for the prosecution to unravel the full
dimension of the mental disposition of an offender towards the person
whom he offended…‖
42
(1999) 4 SCC 370 State of H.P. v. Jeet Singh
 The mere fact that motive alleged by the prosecution is not
strong enough for others to develop such a degree of grudge
would not mean that the assailants had no serious reasons to do
this.‖
Motive for doing a criminal act is generally a difficult area for
prosecution. One cannot normally see into the mind of another.
Motive is the emotion which impels a man to do a particular act. Such

- 28 -
impelling cause need not necessarily be proportionally grave to do
grave crimes. Many a murders have been committed without any
known or prominent motive. It is quite possible that the aforesaid
impelling factor would remain undiscoverable.
43
Lord Chief Justice Champbell struck a note of caution in R. v.
Palmer (Shorthand Report at p. 308 CCC May 1856; thus:
―But if there be any motive which can be assigned, I am bound
to tell you that the adequacy of that motive is of little
importance. We know, from experience of criminal courts that
atrocious crimes of this sort have been committed from very
slight motives; not merely from malice and revenge, but to gain
a small pecuniary advantage, and to drive off for a time pressing
difficulties.‖
 Though, it is a sound proposition that every criminal act is done
with a motive, it is unsound to suggest that no such criminal act
can be presumed unless motive is proved. After all motive is a
psychological phenomenon. Mere fact that prosecution failed to
translate that mental disposition of the accused into evidence
does not mean that no such mental condition existed in the mind
of the assailant.
―That is true, and where there is clear proof of motive for the
crime, that lends additional support to the finding of the court
that the accused was guilty but absence of clear proof of motive
does not necessarily lead to the contrary conclusion.‖
44
(AIR 1955 SC 807, Atley V. State of UP)

- 29 -
―Undoubtedly in cases of circumstantial evidences motive bears
important significance. Motive always locks up in the mind of the
accused and some time it is difficult to unlock. People do not act
wholly without motive. The failure to discover the motive of an
offence does not signify its non existence. The failure to prove motive
is not fatal as a matter of law. Proof of motive is never an
indispensable for conviction. When facts are clear it is immaterial that
no motive has been proved. Therefore, absence of proof of motive
does not break the link in the chain of circumstances connecting the
accused with the crime, nor militates against the prosecution case...‖

ii) Conduct.
(a) Abscondance-.

Mere absconding by itself does not necessarily lead to a firm


conclusion of guilty mind. The act of absconding is no doubt relevant
piece of evidence to be considered along with other evidence but its
value would always depend on the circumstances of each case.

Thus, mere abscondance by the accused after commission of the


crime and remaining untraceable for a period of six days itself cannot
establish his guilt. Absconding by itself is not conclusive proof of
either of guilt or of a guilty conscience.
Abscondance being a conduct under Article 21 of Qanun-e-Shahadat
Order should be taken into consideration along with other evidence to
prove his guilt.

- 30 -
CHAPTER-X

IDENTIFICATION.
(i) Article 22.

―Facts necessary to explain or introduce relevant facts: Facts


necessary to explain or introduce a fact-in-issue or relevant fact, or
which support or rebut an inference suggested by a fact in issue or
relevant fact, or which establish the identity of anything or person
whose identity is relevant, or fix the time or place at which any fact-
in-issue, or relevant fact happened, or which show the relation of
parties by whom any such fact was transacted, are relevant in so far as
they are necessary for that purpose.‖
 Identification-.
Identification of the accused in the court by the witness constitutes the
substantive evidence in a case although any such identification for the
first time at the trial may more often than not appear to be evidence of
a weak character. That being so a test identification parade is
conducted with a view to strengthening the trustworthiness of the
evidence. Such a TIP then provides corroboration to the witness in the
court who claims to identify the accused persons otherwise unknown
to him. Test identification parades, therefore, remain in the realm of
investigation.
 The Code of Criminal Procedure does not oblige the
investigating agency to necessarily hold a test identification

Page - 1 -
parade nor is there any provision under which the accused may
claim a right to the holding of a test identification parade. The
failure of the investigating agency to hold a test identification
parade does not, in that view, have the effect of weakening the
evidence of identification in the court. As to what should be the
weight attached to such identification is a matter which the court
will determine in the peculiar facts and circumstances of each
case. In appropriate cases the court may accept the evidence of
identification in the court even without insisting on
corroboration.
 It is trite to say that the substantive evidence is the evidence of
identification in court. Apart from the clear provisions of Article
22, the position in law is well settled by a catena of decisions of
Superior Court.
 It is neither possible nor prudent to lay down any invariable rule
as to the period within which a test identification parade must be
held, or the number of witnesses who must correctly identify the
accused, to sustain his conviction. These matters are for the
courts of fact to decide in the facts and circumstances of each
case. If a rule is laid down prescribing a period within which the
test identification parade must be held, it would only benefit the
professional criminals in whose cases the arrests are delayed as
the police have no clear clue about their identity, they being
persons unknown to the victims. They, therefore, have only to
avoid their arrest for the prescribed period to avoid conviction.

-2-
The offender may be unknown to the victim and the case
depends solely on the identification by the victim, who is
otherwise found to be truthful and reliable. What justification
can be pleaded to contend that such cases must necessarily result
in acquittal because of there being only one identifying witness?
Prudence therefore demands that these matters must be left to
the wisdom of the courts of fact which must consider all aspects
of the matter in the light of the evidence on record before
pronouncing upon the acceptability or rejection of such
identification.

(ii) Substantive evidence is the identification of


accused by witness in Court.
The facts, which establish the identity of the accused persons, are
relevant under Article 22 of the Qanun-e-Shahadat Order. As a
general rule, the substantive evidence of a witness is the statement
made in court. The evidence of mere identification of the accused
person at the trial for the first time is from its very nature inherently
of a weak character. The purpose of a prior test identification,
therefore, is to test and strengthen the trustworthiness of that
evidence. It is accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn testimony of witnesses
in court as to the identity of the accused who are strangers to them, in
the form of earlier identification proceedings. This rule of prudence,
however, is subject to exceptions, when, for example, the court is

-3-
impressed by a particular witness on whose testimony it can safely
rely, without such or other corroboration. The identification parades
belong to the stage of investigation, and there is no provision in the
Code of Criminal Procedure which obliges the investigating agency to
hold, or confers a right upon the accused to claim a test identification
parade. They do not constitute substantive evidence and these parades
are essentially governed by Section 157 of the Code of Criminal
Procedure. Failure to hold a test identification parade would not make
inadmissible the evidence of identification in court. The weight to be
attached to such identification should be a matter for the courts of
fact. In appropriate cases it may accept the evidence of identification
even without insisting on corroboration.

(iii) Test Identification Parade (TIP) relates to the


stage of investigation

It is well settled that conducting the test identification parade relates


to the stage of investigation and the omission to conduct the same will
not always affect the credibility of the witness who identifies the
accused in the court.

(iv) Legal position of dock identification and T.I.P.


Legal position of identification by way of TIP and dock identification
may be summed up as under:-
(a) If an accused is well known to the prosecution witnesses from
before, no test identification parade is called for and it would be
meaningless and sheer waste of public time to hold the same.
-4-
(b) In cases where according to the prosecution the accused is known
to the prosecution witnesses from before, but the said fact is denied by
him and he challenges his identity by the prosecution witnesses by
filing a petition for holding test identification parade, a court while
dealing with such a prayer, should consider without holding a mini-
inquiry as to whether the denial is bona fide or a mere pretence and/or
made with an ulterior motive to delay the investigation.
(c) Evidence of identification of an accused in court by a witness is
substantive evidence whereas that of identification in test
identification parade is, though a primary evidence but not substantive
one, and the same can be used only to corroborate identification of the
accused by a witness in court.
(d) Identification parades are held during the course of investigation
ordinarily at the instance of investigating agencies and should be held
with reasonable dispatch for the purpose of enabling the witnesses to
identify either the properties which are the subject-matter of alleged
offence or the accused persons involved in the offence so as to
provide it with materials to assure itself if the investigation is
proceeding on right lines and the persons whom it suspects to have
committed the offence were the real culprits.
(e) Failure to hold test identification parade does not make the
evidence of identification in court inadmissible, rather the same is
very much admissible in law, but ordinarily identification of an
accused by a witness for the first time in court should not form the
basis of conviction, the same being from its very nature inherently of

-5-
a weak character unless it is corroborated by his previous
identification in the test identification parade or any other evidence.
The previous identification in the test identification parade is a check
valve to the evidence of identification in court of an accused by a
witness and the same is a rule of prudence and not law.
(f) In exceptional circumstances only, evidence of identification for
the first time in court, without the same being corroborated by
previous identification in the test identification parade or any other
evidence, can form the basis of conviction.
(g) Ordinarily, if an accused is not named in the first information
report, his identification by witnesses in court, should not be relied
upon, especially when they did not disclose name of the accused
before the police, but to this general rule there may be exceptions as
enumerated above.

-6-
CHAPTER-XI

ALIBI
(i) Article 24.

―When facts not otherwise relevant become relevant: Facts not


otherwise relevant are relevant—
(1) if they are inconsistent with any fact-in-issue or relevant fact;
(2) if by themselves or in connection with other facts they make the
existence or non-existence of any fact-in-issue or relevant fact highly
probable or improbable.‖
Illustrations
(a) The question is, whether A committed a crime at Peshawar on a
certain day.
The fact that, on that day, A was at Lahore is relevant.
The fact that, near the time when the crime was committed. A was at
a distance from the place where it was committed, which would
render it highly improbable, though not impossible, that he committed
it, is relevant.
(b) The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed
either by, A, B, C or D. Every fact which shows that the crime .could
have been committed by no one else and that it was not committed by
either B, C or D, is relevant.

Page - 1 -
(ii) Facts inconsistent with the fact-in-issue are
relevant.
An alibi is not an exception (special or general) envisaged in the
Penal Code or any other law. It is only a rule of evidence recognised
in that facts which are inconsistent with the fact in issue are relevant.
Illustration (a) given under the provision is worth reproducing in this
context:
―The question is whether A committed a crime at Peshawar on a
certain day;
The fact that on that day, A was at Lahore is relevant.‖
 The Latin word alibi means ―elsewhere‖ and that word is used
for convenience when an accused takes recourse to a defence
line that when the occurrence took place he was so far away
from the place of occurrence that it is extremely improbable that
he would have participated in the crime. It is a basic law that in
a criminal case, in which the accused is alleged to have inflicted
physical injury to another person, the burden is on the
prosecution to prove that the accused was present at the scene
and has participated in the crime. The burden would not be
lessened by the mere fact that the accused has adopted the
defence of alibi.
 The plea of the accused in such cases need be considered only
when the burden has been discharged by the prosecution
satisfactorily. But once the prosecution succeeds in discharging
the burden it is incumbent on the accused, who adopts the plea
-2-
of alibi, to prove it with absolute certainty so as to exclude the
possibility of his presence at the place of occurrence. When the
presence of the accused at the scene of occurrence has been
established satisfactorily by the prosecution through reliable
evidence, normally the court would be slow to believe any
counter-evidence to the effect that he was elsewhere when the
occurrence happened. But if the evidence adduced by the
accused is of such a quality and of such a standard that the court
may entertain some reasonable doubt regarding his presence at
the scene when the occurrence took place, the accused would,
no doubt, be entitled to the benefit of that reasonable doubt. For
that purpose, it would be a sound proposition that, in such
circumstances, the burden on the accused is rather heavy. It
follows, therefore, that strict proof is required for establishing
the plea of alibi.

(iii) Plea of alibi, if fails in absence of any explanation


adverse inference against the accused.
Once, the Court disbelieves the plea of alibi and the accused does not
give any explanation in his statement under Section 342 CrPC, the
Court is entitled to draw adverse inference against the accused.
In a case of circumstantial evidence, a false alibi set up by the accused
would be a link in the chain of circumstances but it cannot be the sole
link or the sole circumstance based on which a conviction could be
passed.

-3-
(iv) Nature of Proof.
A plea of alibi must be proved with absolute certainty so as to
completely exclude the presence of the person concerned at the time
when and the place where the incident took place.

The plea of alibi if raised by the accused, the burden of proof for such
a plea lies on the person who raises it.

(v) Falsity of the plea of alibi.


In a case of circumstantial evidence, a false alibi set up by the accused
would be a link in the chain of circumstances.

Falsity of the defence plea is not enough to bring the home


accusations, it provides additional link to substantiate prosecution's
accusations.

The conduct of accused subsequent to the commission of crime in


such a case, may be very relevant. If there is sufficient evidence to
show that the accused fabricated some evidence to screen/absolve
himself from the offence, such circumstance may point towards his
guilt.

-4-
CHAPTER-XII

DISCLOSER STATEMENT.
(i) Article 40.

―How much of information received from accused may be proved:


When any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the
custody of a police-officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved.‖
Law does not mandate obtaining signatures of the accused even on
seizure memos.

The prohibition contained in Sub-Section (1) of Section 162 Cr.PC is


not applicable to any proceedings made as per Article 40 of Qanun-e-
Shahadat Order. It is clearly provided in Sub-Section (2) of Section
162 Cr.PC which reads thus:

―Nothing in this section shall be deemed to apply to any


statement falling within the provisions of Section 32 clause (1)
of the Evidence Act, 1872, [or to affect the provisions of Section
27 of that Act.]‖ (Read Article 46 and Article 40 of Qanun-e-
Shahadat Order).

―The resultant position is that the investigating officer is not obliged


to obtain the signature of an accused in any statement attributed to

Page - 1 -
him while preparing seizure-memo for the recovery of any article
covered by Article 40 of Qanun-e-Shahadat Order. But if any
signature has been obtained by an investigating officer, there is
nothing wrong or illegal about it….‖

There is a prohibition in peremptory terms and law requires that a


statement made before the Investigating Officer should not be signed
by the witness.

However, the prohibition contained in Section 162(1) Cr.P.C. is not


applicable to any statements made under Article 40 of the Qanun-e-
Shahadat Order.

(ii) Accused must be in custody, formal arrest not


necessary.
The formal arrest for the accused being in custody of the investigating
agency he need not have been formally arrested. It is enough if he was
in custody of the investigating agency meaning thereby his
movements were under the control of the investigating agency. A
formal arrest is not necessary and the fact that the accused was in
effective custody of the investigating agency is enough.

What is really important is the credibility of the evidence of the


investigating agency about getting information/statement regarding
the information from the accused. If the evidence of the investigating
officer is found to be credible then even in the absence of a recorded
statement, the evidence can be accepted and it could be held that it

-2-
was the accused who provided the information on the basis of which a
subsequent discovery was made.

The essence of the proof of a discovery under Article 40 of Qanun-e-


Shahadat Order is only that it should be credibly proved that the
discovery made was a relevant and material discovery which
proceeded in pursuance of the information supplied by the accused in
the custody.

(iii) Interpretation of Article.


The interpretation of Article 40 of the Qanun-e-Shahadat Order
centered round two aspects:-

(i) Whether the discovery of fact referred to in Article 40 should


be confined only to the discovery of a material object and the
knowledge of the accused in relation thereto or the discovery
could be in respect of his mental state or knowledge in
relation to certain things - concrete or non-concrete.
(ii) Whether it is necessary that the discovery of fact should be
by the person making the disclosure or directly at his
instance?
The subsequent event of discovery by police with the aid of
information furnished by the accused - whether can be put
against him under Article 40?

The confessions made to a police officer and a confession made by


any person while he or she is in police custody cannot be proved
against that person accused of an offence. Article 40 which lifts the
-3-
ban against the admissibility of the confession/statement made to the
police to a limited extent by allowing proof of information of
specified nature furnished by the accused in police custody. In that
sense Article 40 is considered to be an exception to the rules
embodied in Articles 38 & 39.

The decision of the Privy Council in Kotayya's case, which has been
described as a locus classicus, had set at rest much of the controversy
that centered round the interpretation of Section 27 of Evidence Act
(Article 40). …

―The first requisite condition for utilizing Section 27 in support of the


prosecution case is that the investigating police officer should depose
that he discovered a fact in consequence of the information received
from an accused person in police custody. Thus, there must be a
discovery of fact not within the knowledge of police officer as a
consequence of information received. Of course, it is axiomatic that
the information or disclosure should be free from any element of
compulsion. The next component of Section 27 relates to the nature
and extent of information that can be proved. It is only so much of the
information as relates distinctly to the fact thereby discovered that can
be proved and nothing more. It is explicitly clarified in the section
that there is no taboo against receiving such information in evidence
merely because it amounts to a confession. At the same time, the last
clause makes it clear that it is not the confessional part that is
admissible but it is only such information or part of it, which relates

-4-
distinctly to the fact discovered by means of the information
furnished. Thus, the information conveyed in the statement to police
ought to be dissected if necessary so as to admit only the information
of the nature mentioned in the section. The rationale behind this
provision is that, if a fact is actually discovered in consequence of the
information supplied, it affords some guarantee that the information is
true and can therefore be safely allowed to be admitted in evidence as
an incriminating factor against the accused.

Realities or truth apart, the fundamental and basic presumption in the


administration of criminal law and justice delivery system is the
innocence of the alleged accused and till the charges are proved
beyond reasonable doubt on the basis of clear, cogent, credible or
unimpeachable evidence, the question of indicting or punishing an
accused does not arise, merely carried away by heinous nature of the
crime or the gruesome manner in which it was found to have been
committed. Mere suspicion, however, strong or probable it may be is
no effective substitute for the legal proof required to substantiate the
charge of commission of a crime and graver the charge is greater
should be the standard of proof required. Courts dealing with criminal
cases at least should constantly remember that there is a long mental
distance between ―may be true‖ and ―must be true‖ and this basic and
golden rule only helps to maintain the vital distinction between
―conjectures‖ and ―sure conclusions‖ to be arrived at on the touch
stone of a dispassionate judicial scrutiny based upon a complete and

-5-
comprehensive appreciation of all features of the case as well as
quality and credibility of the evidence brought on record.‖

As pointed out by the Privy Council in Kotayya's case, "clearly the


extent of the information admissible must depend on the exact nature
of the fact discovered and the information must distinctly relate to that
fact". Elucidating the scope of this section, the Privy Council
speaking through Sir John Beaumont said "normally, the section is
brought into operation when a person in police custody produces from
some place of concealment, some object, such as a dead body, a
weapon or ornaments, said to be connected with the crime of which
the informant is the accused". We have emphasized the word
'normally' because the illustrations given by the learned Judge are not
exhaustive. The next point to be noted is that the Privy Council
rejected the argument of the counsel appearing for the Crown that the
fact discovered is the physical object produced and that any and every
information which relates distinctly to that object can be proved.
Upon this view, the information given by a person that the weapon
produced is the one used by him in the commission of the murder will
be admissible in its entirety. Such contention of the Crown's counsel
was emphatically rejected with the following words:

"...If this be the effect of Section 27, little substance would


remain in the ban imposed by the two preceding sections on
confessions made to the police, or by persons in police custody.
That ban was presumably inspired by the fear of the Legislature

-6-
that a person under police influence might be induced to confess
by the exercise of undue pressure. But if all that is required to
lift the ban be the inclusion in the confession of information
relating to an object subsequently produced, it seems reasonable
to suppose that the persuasive powers of the police will prove
equal to the occasion, and that in practice the ban will lose its
effect..."

The essential ingredient of the section is that the information given by


the accused must lead to the discovery of the fact which is the direct
outcome of such information. Secondly, only such portion of the
information given as is distinctly connected with the said recovery is
admissible against the accused. Thirdly, the discovery of the fact must
relate to the commission of some offence.

The involvement in the commission of the offence of a third person if


has been disclosed for the first time in the disclosure statements of the
co-accused, permissibility and legality thereof has been discussed in
the judicial pronouncement 1AIR 1946 Sind 43, Ismail v. Emperor. In
this case, the conviction of Ismail was based, inter alia, upon his own
confession giving information about Karimdino as well as the
confession of this co-accused. The police found the involvement of
Karimdino as a fact discovered as the result of Ismail‗s confession.
This rendered the statement of Ismail as to the whereabouts of
Karimdino admissible under Section 27 of the Evidence Act.

-7-
(iv) Is there a legal requirement of obtaining the
signatures of the accused persons on a recovery
memo?
―Merely because the recovery memo was not signed by the
accused, will not vitiate the recovery itself, as every case has to
be decided on its own facts. In the event that the recoveries are
made pursuant to the disclosure statement of the accused, then,
despite the fact that the statement has not been signed by him,
there is certainly some truth in what he said, for the reason that,
the recovery of the material objects was made on the basis of his
statement.

The fact that the recovery is in consequence of the information


given is fortified and confirmed by the discovery of which leads
to believe that the information and the statement cannot be
false.‖

The legal position with regard to the recoveries made from the
accused persons in pursuance of their disclosure statements under
Article 40 of Qanun-e-Shahadat Order are as under:

Under Article 40 of Qanun-e-Shahadat Order information by accused


leading to recovery of crime weapons is admissible but such
admissibility of such information does not render the evidence
pertaining to information reliable. Where place of concealment is
already known to police such recovery at the instance of the accused
looses importance because in such circumstances the said recovery
-8-
cannot be said to be on the basis of disclosure statement of the
accused.

(v) Effect of recovery having been effected from an


open place.
―There is nothing in Article 40 of Qanun-e-Shahadat Order which
renders the statement of the accused inadmissible if recovery of the
articles was made from any place which is "open or accessible to
others". It is a fallacious notion that when recovery of any
incriminating article was made from a place which is open or
accessible to others, it would vitiate the evidence under Article 40 of
Qanun-e-Shahadat Order. Any object can be concealed in places
which are open or accessible to others. For example, if the article is
buried on the main roadside or if it is concealed beneath dry leaves
lying on public places or kept hidden in a public office, the article
would remain out of the visibility of others in normal circumstances.
Until such article is disinterred its hidden state would remain
unhampered. The person who hid it alone knows where it is until he
discloses that fact to any other person. Hence the crucial question is
not whether the place was accessible to others or not but whether it
was ordinarily visible to others. If it is not, then it is immaterial that
the concealed place is accessible to others.

-9-
(vi) While effecting a recovery under Article 40 of
Qanun-e-Shahadat Order, there exists no legal
requirement for public witness.
There is no requirement either under Article 40 of Qanun-e-Shahadat
Order or under Section 161 of the Code of Criminal Procedure, to
obtain signature of independent witnesses on the record in which
statement of an accused is written. The legal obligation to call
independent and respectable inhabitants of the locality to attend and
witness the exercise made by the police is cast on the police officer
when searches are made under Chapter VII of the Code. Section
103(2) of the Code requires that such search shall be made in their
presence and a list of all things seized in the course of such search and
of the places in which they are respectively found, shall be prepared
by such officer or other person ―and signed by such witnesses‖.

It must be remembered that a search is made to find out a thing or


document about which the searching officer has no prior idea as to
where the thing or document is kept.

The legislative idea in insisting on such searches to be made in the


presence of two respectable inhabitants of the locality is to ensure the
safety of all such articles meddled with and to protect the rights of the
persons entitled thereto. But recovery of an object pursuant to the
information supplied by an accused in custody is different from the
searching endeavour envisaged in Chapter VII of the Code.

- 10 -
It is a fallacious impression that when recovery is effected pursuant to
any statement made by the accused the document prepared by the
investigating officer contemporaneous with such recovery must
necessarily be attested by the independent witnesses. But if no witness
was present or if no person had agreed to affix his signature on the
document, it is unjust to take it, as a proposition of law, that the
document so prepared by the police officer must be treated as tainted
and the recovery evidence unreliable. The court has to consider the
evidence of the investigating officer who deposed to the fact of
recovery based on the statement elicited from the accused on its own
worth.‖

Merely because the recovery memo was not signed by the accused,
will not vitiate the recovery itself, as every case has to be decided on
its own facts. In the event that the recoveries are made pursuant to the
disclosure statement.

―The fact that the recovery is in consequence of the information


given is fortified and confirmed by the discovery of such as,
wearing apparel and skeletal remains of the deceased which
leads to believe that the information and the statement cannot be
false.‖

Joint Recovery, when admissible.

A joint mashirnama of arrest, as well as, recoveries of the arms


and ammunition, it may be stated that simpliciter the fact that there is

- 11 -
a joint mashimam of recoveries of incriminating articles may not be
fatal if the same identifies each of the recovery with the accused
concerned with all relevant particulars but if such a joint mashirnama
is vague and cannot identify- with certainty the articles recovery from
a particular accused such a mashirnama cannot be relied upon.
2
[State v. Bashir & others (PLD 1997 SC 408)]

- 12 -
CHAPTER-XIII

DYING DECLARATION AND CIRCUMSTANCES OF THE


TRANSACTION WHICH RESULTED IN HIS DEATH.
(i) Article 46(1).

―46(1) When it relates to cause of death: When the statement is


made by a person as to (i) the cause of his death, or as to (ii) any of
the circumstances of the transaction which resulted in his death, in
cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was
or was not, at the time when they were made, under expectation of
death, and whatever may be the nature of the proceeding in which
cause of his death comes into question.‖
Article 46 of Qanun-e-Shahadat Order is an exception to the rule of
hearsay evidence and in view of the peculiar conditions in the
Pakistani society it has widened the sphere to avoid injustice. Where
the main evidence consists of statements and letters written by the
deceased which are directly connected with or related to her/his death
and which reveal a tell-tale story, the said statements would clearly
fall within the four corners of Article 46 and, therefore, admissible
and the distance of time alone in such cases would not make the
statements irrelevant.
This statutory provision thus relates to inter alia statements by a
person who is dead with regard to following categories of statements:-

Page - 1 -
(i) Cause of death, or,
(ii) ―......any of the circumstances of the transaction which resulted
in his death‖, in a case in which the cause of that person‘s death
comes into question.

(a) Dying Declaration.


The juristic theory regarding acceptability of a dying declaration is
that such declaration is made in extremity, when the party is at the
point of death and when every hope of this world is gone, when every
motive to falsehood is silenced, and the man is induced by the most
powerful consideration to speak only the truth. Notwithstanding the
same, great caution must be exercised in considering the weight to be
given to this species of evidence on account of the existence of many
circumstances which may affect their truth. The situation in which a
man is on the deathbed is so solemn and serene, is the reason in law to
accept the veracity of his statement. It is for this reason the
requirements of oath and cross-examination are dispensed with. Since
the accused has no opportunity of cross-examination, the courts insist
that the dying declaration should be of such a nature as to inspire full
confidence of the court in its truthfulness and correctness.
 The court, however, has always to be on guard to see that the
statement of the deceased was not as a result of either tutoring or
prompting or a product of imagination. The court also must
further decide that the deceased was in a fit state of mind and
had the opportunity to observe and identify the assailant.

-2-
 Normally, therefore, the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration looks up to the medical opinion. But where the
eyewitnesses state that the deceased was in a fit and conscious
state to make the declaration, the medical opinion will not
prevail, nor can it be said that since there is no certification of
the doctor as to the fitness of the mind of the declarant, the
dying declaration is not acceptable. A dying declaration can be
oral or in writing and any adequate method of communication
whether by words or by signs or otherwise will suffice provided
the indication is positive and definite. In most cases, however,
such statements are made orally before death ensues and is
reduced to writing by someone like a Magistrate or a doctor or a
police officer. When it is recorded, no oath is necessary nor is
the presence of a Magistrate absolutely necessary, although to
assure authenticity it is usual to call a Magistrate, if available for
recording the statement of a man about to die.
 There is no requirement of law that a dying declaration must
necessarily be made to a Magistrate and when such statement is
recorded by a Magistrate there is no specified statutory form for
such recording. Consequently, what evidential value or weight
has to be attached to such statement necessarily depends on the
facts and circumstances of each particular case.
 What is essentially required is that the person who records a
dying declaration must be satisfied that the deceased was in a fit

-3-
state of mind. Where it is proved by the testimony of the
Magistrate that the declarant was fit to make the statement even
without examination by the doctor the declaration can be acted
upon provided the court ultimately holds the same to be
voluntary and truthful. A certification by the doctor is
essentially a rule of caution and therefore the voluntary and
truthful nature of the declaration can be established otherwise.
 Recording dying declaration by gestures, legal position is that a
dying declaration by gestures can be recorded and the same
possesses evidentiary value.
Dying declaration recorded on the basis of nods and gestures is not
only admissible but possesses evidentiary value, the extent of which
shall depend upon who recorded the statement, what is his educational
attainment, what gestures and nods were made, what were the
questions asked — whether they were simple or complicated — and
how effective or understandable the nods and gestures were.
The questions being simple and short, the recorder being a Magistrate,
the certifier of mental conscious state of the deceased being a doctor,
nods being effective and meaningful, full reliance could have been
placed on the statement of the deceased as recorded by Magistrate to
find the appellant guilty.
1
Meesala Ramakrishan Vs. State of A.P. (1994) 4 SCC 182.
―A dying declaration can be oral or in writing and any adequate
method of communication whether by words or by signs or

-4-
otherwise will suffice provided the indication is positive and
definite.‖
The position with regard to the use of gestures dying declaration:
The court has to consider each case in the circumstances of the
case. What value should be given to a dying declaration is left to
court, which on assessment of the circumstances and the
evidence and materials on record, will come to a conclusion
about the truth or otherwise of the version, be it written, oral,
verbal or by sign or by gestures.
It is also a settled principle of law that dying declaration is a
substantive evidence and an order of conviction can be safely
recorded on the basis of dying declaration provided the court is
fully satisfied that the dying declaration made by the deceased
was voluntary and reliable and the author recorded the dying
declaration as stated by the deceased. The principle that for
relying upon the dying declaration the court must be conscious
that the dying declaration was voluntary and further it was
recorded correctly and above all the maker was in a fit
condition—mentally and physically—to make such statement.

(i) Multiple Dying Declarations.


Minor discrepancies in dying declarations recorded at multiple
intervals is normal because of the pain and suffering the victim is
enduring; such discrepancies are not required to be given undue
weightage or blown out of proportion.

-5-
―It is true that there are some discrepancies in the dying
declarations with regard to the presence or otherwise of a light
or a torch. ------------, however, these are so insignificant that
they call for no discussion. It is also clear from the evidence that
the injured had been in great pain and if there were minor
discrepancies inter se the three dying declarations, they were to
be accepted as something normal. ------------ the dying
declaration had been recorded by the Tahsildar after the doctor
had certified the victim as fit to make a statement. The doctor
also appeared in the witness box to support the statement of the
Tahsildar. ------------ no fault whatsoever could be found in the
dying declarations.‖
2
Abrar Vs. State of Uttar Pradesh (2011) 2 SCC 750
It is settled law that if the prosecution solely depends on the dying
declaration, the normal rule is that the courts must exercise due care
and caution to ensure genuineness of the dying declaration, keeping in
mind that the accused had no opportunity to test the veracity of the
statement of the deceased by cross-examination. ------------ the law
does not insist upon the corroboration of dying declaration before it
can be accepted. The insistence of corroboration to a dying
declaration is only a rule of prudence. When the court is satisfied that
the dying declaration is voluntary, not tainted by tutoring or
animosity, and is not a product of the imagination of the declarant, in
that event, there is no impediment in convicting the accused on the
basis of such dying declaration. When there are multiple dying

-6-
declarations, each dying declaration has to be separately assessed and
evaluated and assessed independently on its own merit as to its
evidentiary value and one cannot be rejected because of certain
variations in the other.

(ii) Doctrine of Dying Declaration.


The doctrine of dying declaration is enshrined in the legal maxim
nemo moriturus praesumitur mentire, which means ‗a man will not
meet his Maker with a lie in his mouth‘. The doctrine of dying
declaration is enshrined in Article 46 of Qanun-e-Shahadat Order as
an exception to the general rule contained in Article 71 of Qanun-e-
Shahadat Order, which provides that oral evidence in all cases must
be direct i.e. it must be the evidence of a witness, who says he saw it.
The dying declaration is, in fact, the statement of a person, who
cannot be called as witness and, therefore, cannot be cross-examined.
Such statements themselves are relevant facts in certain cases.
This Court has to consider the relevance/probative value of dying
declarations recorded under different situations and also in cases
where more than one dying declaration has been recorded. The law is
that if the court is satisfied that the dying declaration is true and made
voluntarily by the deceased, conviction can be based solely on it,
without any further corroboration. It is neither a rule of law nor of
prudence that a dying declaration cannot be relied upon without
corroboration. When a dying declaration is suspicious, it should not
be relied upon without having corroborative evidence. The court has
to scrutinise the dying declaration carefully and must ensure that the
-7-
declaration is not the result of tutoring, prompting or imagination. The
deceased must be in a fit state of mind to make the declaration and
must identify the assailants. Merely because a dying declaration does
not contain the details of the occurrence, it cannot be rejected and in
case there is merely a brief statement, it is more reliable for the reason
that the shortness of the statement is itself a guarantee of its veracity.
If the dying declaration suffers from some infirmity, it cannot alone
form the basis of conviction. Where the prosecution version differs
from the version given in the dying declaration, the said declaration
cannot be acted upon.
3
Khuhal Rao v. State of Bombay (AIR 1958 SC 22)
4
Laxman v. State of Maharashtra (2002) 6 SCC 710
The second and the third dying declarations to be authentic, voluntary
and duly corroborated by other prosecution witnesses including the
medical evidence. These dying declarations read in conjunction with
the statement of prosecution witnesses, can safely be made the basis
for conviction of the accused. Just as in the case of the testimony of
the witnesses, which may be classified into three categories:- (a)
Wholly reliable; (b) Wholly unreliable; (c) Neither wholly reliable nor
wholly unreliable, multiple dying declarations are also to be viewed
and evaluated for their probative value in the fine scale of credibility.

-8-
(b) circumstances of the transaction which resulted in
his death.
The phrase, that is, ―circumstances of the transaction which resulted
in his death‖ in Article 46 (1) of Qanun-e-Shahadat Order has been
subject matter in a number of cases before the Privy Council. The
Privy Council gave the defining judgment on the issue in 5Pakala
Narayana Swami v. King Emperor 1939 AIR PC 47 Lord Atkin
opined.
The first question with which their Lordships propose to deal is
whether the statement of the widow that on 20th March the deceased
had told her that he was going to Berhampur as the accused's wife had
written and told him to go and receive payment of his dues was
admissible under S. 32(1) of the Indian Evidence Act, 1877. That
section provides:
―Statements written or verbal of relevant facts made by a person
who is dead………are themselves relevant facts in the following
cases (1) when the statement is made by the person as to the
cause of his death or as to any of the circumstances of the
transaction which resulted in his death, in cases in which the
cause of that person's death comes into question.
Such statements are relevant whether the person who made them
was or was not at the time when they were made under
expectation of death and whatever may be the nature of the
proceeding in which the cause of his death comes into
question.‖

-9-
―A variety of questions has been mooted in the Indian Courts as to the
effect of this section. It has been suggested that the statement must be
made after the transaction has taken place, that the person making it
must be at any rate near death, that the "circumstances" can only
include the acts done when and where the death was caused. Their
Lordships are of opinion that the natural meaning of the words used
does not convey any of these limitations. The statement may be made
before the cause of death has arisen, or before the deceased has any
reason to anticipate being killed. The circumstances must be
circumstances of the transaction: general expressions indicating fear
or suspicion whether of a particular individual or otherwise and not
directly related to the occasion of the death will not be admissible.
But statements made by the deceased that he was proceeding to the
spot where he was in fact killed, or as to his reasons for so
proceeding, or that he was going to meet a particular person, or that
he had been invited by such person to meet him would each of them
be circumstances of the transaction, and would be so whether the
person was unknown, or was not the person accused. Such a statement
might indeed be exculpatory of the person accused. "Circumstances of
the transaction" is a phrase no doubt that conveys some limitations. It
is not as broad as the analogous use in "circumstantial evidence"
which includes evidence of all relevant facts. It is on the other hand
narrower than "res gestae." Circumstances must have some proximate
relation to the actual occurrence: though, as for instance, in a case of
prolonged poisoning they may be related to dates at a considerable

- 10 -
distance from the date of the actual fatal dose. It will be observed that
"the circumstances" are of the transaction which resulted in the death
of the declarant. It is not necessary that there should be a known
transaction other than that the death of the declarant has ultimately
been caused, for the condition of the admissibility of the evidence is
that the cause of (the declarant's) death comes into question." In the
present case the cause of the deceased's death comes into-question.
The transaction is one in which the deceased was murdered on 21st
March or 22nd March and his body was found in a trunk proved to be
bought on behalf of the accused. The statement made by the deceased
on 20th or 21st March that he was setting out to the place where the
accused lived, and to meet a person, the wife of the accused, who
lived in the accused's house, appears clearly to be a statement as to
some of the circumstances of the transaction which resulted in his
death. The statement was rightly admitted.‖
The principles governing the admissibility of a statement made under
Article 46(1) of the Order are in the following terms:-
Article 46(1) of the Order renders a statement relevant which was
made by a person who is dead in cases in which cause of his death
comes into question, but its admissibility depends upon one of the two
conditions: Either such statement should relate to the cause of his
death or it relates to any of the circumstances of transaction which
resulted in his death.
Three aspects have to be considered pertaining to the above item of
evidence. First is whether the said statement of the deceased would

- 11 -
fall under Article 46(1) of the Order so as to become admissible in
evidence. Second is whether what the witnesses have testified in
Court regarding the utterance of the deceased can be believed to be
true. If the above aspects are found in the affirmative, the third aspect
to be considered is whether the deceased would have correctly
identified the assailant?
The fact spoken by the deceased has subsequently turned out to be a
circumstance which intimately related to the transaction which
resulted in his/her death. The collocation of the words in Article 46(1)
"circumstances of the transaction which resulted in his death" is
apparently of wider amplitude than saying "circumstances which
cause his death". There need not necessarily be a direct nexus
between "circumstances" and death. It is enough if the words spoken
by the deceased by circumstance which has connection in any of the
transactions which ended up in the death of the deceased.
It is not necessary that such circumstance should be proximate, for,
even distant circumstances can also become admissible in sub-clause
(1) provided it has nexus with the transaction which resulted in the
death.
Even apart from Article 46(1) of the Order such statement can be
admitted under Article 19 of the Order on account of its proximity of
time to the act of murder.
Illustration (A) of Article 19 makes it clear, which reads as:

- 12 -
(A) A is accused of the murder of B by beating him. Whatever was
said and done by A or B or the bystanders at the beating or so shortly
before or after it as to form part of the transaction, is a relevant fact.

Scope
The interpretation that the expression "any of the circumstances of the
transaction which resulted in his death" is wider in scope than the
expression "the cause of his death". The motive factor available in the
statement of the deceased cannot be discarded as a remote
circumstance, if it is otherwise intimately connected with the
circumstances of the transaction which resulted in his death. The
statement of the deceased must disclose that the circumstances
specifically narrated by him have some direct or proximate bearing on
the causes contributed in the transaction which ultimately resulted in
his death. The deceased need not say or apprehend that he would be
killed by the person whose conduct was referred to in his statement.
At the time of giving the statement, there was no chance of having
any inclination in the mind of the deceased that such person would do
away with his life for the circumstances disclosed by him. Such
circumstances shall only be intimately connected with the
circumstances of the transaction which resulted in his death 6(Sooraj
v. State, 1994 Cri LJ 1155, 1162 (Ker)

- 13 -
- 14 -
CHAPTER-XIV

14. RELEVANCY OF JUDGMENTS.


(A) Res Judicata.

(i) “Article 54. Previous Judgments relevant to bar a


second suit or trial: The existence of any judgment, order or
decree which by law prevents any Court from taking cognisance of a
suit or holding a trial, is a relevant fact when the question is whether
such Court ought to take cognisance of such suit or to hold such trial.‖

The principle of the rule of res judicata is one that is well settled,
namely, that a matter which has been put in issue, tried, and
determined by a competent civil or criminal court cannot be re-
opened between those who were parties to such adjudication. The
competency of the court is essential. The test is not whether the
decision was explicit, but whether the issue was one upon which the
judgment of the former suit was based, and the grounds for the
decision may be res judicata as well as the decision itself. Res
judicata should not be inferred from a judgment; it must be clear from
the pleadings and findings. The findings must be on points directly
and substantially in issue. And a finding to be res judicata between
co-plaintiffs must have been essential for the purpose of the relief
while the courts are reluctant to enforce the principle as between co-
defendants. The grounds upon which parties and privies are precluded

Page - 1 -
from re-litigating the same matter between them are, first, that of
public policy, it being in the interest of the State that there should be
an end of litigation (interest reipublicae ut sit finis litium); secondly,
that of hardship to the individual that he should not be twice vexed for
the same cause, (nemo debet bis vexari, si constat curiae quod sit pro
una et eadem causa) or twice punished for one and the same offence
(nemo debet bis puniri pro uno delicto). Inasmuch, however, as an
estoppel shuts out enquiry into the truth, it is necessary to see that the
principle of res judicata is not unduly enlarged. Although the plea of
res judicata may be taken at any stage of a suit including first or
second appeal, an Appellate Court is not bound to entertain the plea if
it cannot be decided upon the record before that court, and if its
consideration involves the reference of fresh issues for determination
by the lower court.
The general principle of res judicata is wider in scope than Section 11
of CPC, which applies to ―suits‖ only where Section 11 CPC does not
apply, the general principle of res judicata can be invoked in confer
finality of the litigation.
The rule with regard to previous judgment in criminal cases is
contained in Section 403 of the Cr. P.C., 1898.

(ii) The distinction between res judicata and estoppel.


The distinction between res judicata and estoppel has been clearly
explained by Mehmood. J., in 1Sitaram v. Amir Begam (ILR 8 All.
324). That the effect of the plea of res judicata, operate like an
estoppel by preventing a party to a litigation from denying the
-2-
accuracy of the former adjudication. But there the similarity between
the two rules virtually ends and it is equally clear that the ratio upon
which the doctrine of estoppel properly so called rests is distinguished
from that upon which the plea of res judicata is founded. The
essential features of estoppel are those which have found formulation
in Section 115 of Evidence Act. The provisions of which proceed
upon the doctrine of equity that he who by declaration, act or
omission has induced another to alter his position, shall not be
allowed to turn round and take advantage of such alteration of other‘s
position. All the other rules to be found in Chapter VIII of the
Evidence Act relating to estoppel of tenant or of acceptors of bills of
exchange, bailees or licensees, proceed upon the same fundamental
principles. On the other hand, the rule of res judicata does not owe its
origin to any such principles but is founded upon the maxim nemo
debet his vexari pro una et eadem causa (no person should be twice
vexed for the same cause) – a maxim which is itself an outcome of the
wider maxim interest reipubicae ut sit finis littum (it is for the public
good that there be an end of litigation). The principle of estoppel,
therefore, proceeds upon different grounds and the framers of the
Codes of Procedure acted upon correct juristic classification in
dealing with the subject of res judicata as appertaining to province of
procedure properly so called, or perhaps the shortest way to describe
the difference between the plea of res judicata and estoppel is to say
that whilst the former prohibits the court from entering into an
enquiry at all as to a matter already adjudicated upon. The latter

-3-
prohibits a party after the enquiry has already been entered upon from
proving anything which would contradict his own previous
declarations or acts to the prejudice of another party who relying upon
those declarations or acts altered his position. In other words, res
judicata prohibits an enquiry in limine while estoppel is only a piece
of evidence. Further, the theory of res Judicata is to presume by a
conclusive presumption that the former adjudication declared the
truth, whilst estoppel, to use the words of Lord Code, is where a man
is concluded by his own act of acceptance to say that truth, which
means, he is not allowed in contradiction of his former self, to prove
what he now chooses to call the truth. Thus the plea of res judicata
proceeds upon grounds of public policy properly so called, whilst
estoppel is simply an application of the equitable principles between
man and man, two individual parties to the litigation.

(iii) The doctrine of res judicata is different from the


rule laid down in Order II, Rule 2 of the Code of Civil
Procedure
The doctrine of res judicata is different from the rule laid down in
Order II, Rule 2 of the Code of Civil Procedure in that, first, the
former refers to the plaintiffs duty to bring forward all the grounds of
attack in support of his claim, while the latter only requires the
plaintiff to claim all reliefs flowing from the same cause of action,
and secondly, the former rule refers to both parties and precludes a
suit as well as a defence, while the latter refers only to the plaintiff.

-4-
The rule of res judicata differs from the rule in Section 47, C.P.C in
that the former bars the trial of an issue which was or which might
and ought to have been raised and decided in a previous suit, while
Section 47 bars a suit for the determination of certain questions. The
rule of res judicata differs also from Section 10 in that, first, Section
10 bars the trial of suit while Section 11 bars the trial of both the suit
and of the issue involved in the suit, and secondly Section 10 relates
to the matters sub judice while Section 11 relates to matters which
have passed into rem judicatum.
Judgments of courts of Justice are as such declared to be relevant by
Article 54 to 57 of Qanun-e-Shahadat Order, and if they do not fall
within the one or the other of these articles, they will have to be held
irrelevant unless they can be brought under any other provisions of
the Order. Under Article 54 of the Order, previous judgments are
admissible in support of a plea of res judicata in civil cases or
autrefois acquit or autrefois convict in criminal cases (Section 403 of
Cr.P.C.).
The article lays down that when the question is whether a court ought
to take cognizance of a suit or hold a criminal trial, and any judgment,
order or decree prevents the court from taking cognizance of that suit
or holding that trial, the existence of such judgment, order or decree is
a relevant fact. It is the existence of the judgment that is relevant
under this article, the reasons for acquittal or the evidence recorded in
the earlier trial is not relevant. Judgment inter partes in previous suit
to prove the factum of previous suit is admissible. However, the

-5-
decision which was not necessary for disposal of the previous suit is
not admissible.
(iv) Autrefois acquit and autrefois convict. -- A plea of
autrefois acquit which is statutorily recognised under Section 403 Cr.
P.C., arises when a person is tried again for the same offence, or on
the same facts for any other offence for which a different charge from
the one made against him might have been made under Section 221
(1) of Cr. P.C., or for which he might have been convicted under
Section 221 (2) of Cr. P.C. Clause (a) of Article 13 of the Constitution
provides that ―no person shall be prosecuted and punished for the
same offence more than once‖. Both the provisions embody the well-
known principle of criminal jurisprudence that no one should be put
in jeopardy twice for the same offence. But Section 403 Cr.P.C. is
wider than Article 13 (a) of the Constitution. Section 403 Cr.P.C.
embodies both the principles known as utrefois acquit and autrefois
convict, while Article 13 (a) of the Constitution only embodies the
principle of autrefois convict. In other words under Section 403
Cr.P.C. a person who has once been tried and acquitted cannot again
be tried for the same offenc, but under Article 13(a) of the
Constitution the prohibition is against a person being subject to
punishment twice for the same offence. The two provisions prima
facie appear to be in conflict with each other. But Article 13(a) of the
Constitution means that a legislation authorising a fresh trial of a
person for an offence of which he has been previously acquitted
would not be in violation of the constitution. It is only when there has

-6-
been a prosecution and punishment for an offence on a previous
occasion that a second trial for the same offence would be
unconstitutional. Article 13(a) of the Constitution is only an enabling
provision which gives authority to the legislature and till so long as
the legislature chooses to enact otherwise, a previous acquittal would,
under Section 403, Cr.P.C., be a bar to a subsequent prosecution.
The conditions for the applicability of Article 13(a) of the
Constitution are:
1. There must have been a previous prosecution in the nature of
criminal proceedings before a court of law.
2. There must have been a punishment imposed as a result of such
prosecution.
3. The subsequent proceedings must also have been for
prosecution and punishment of the accused.
4. Proceedings on both these occasions must have been for
prosecution of the same offence which will preclude continuing
offences and distinct offences.
The relevant articles of the Qanun-e-Shahadat Order relating to the
admissibility of judgment do not empower a criminal court to treat as
res judicata the findings of a civil court on a given point. Only
judgments in rem, as defined in Article 55 of Qanun-e-Shahadat
Order, have a binding effect on criminal courts. A finding on certain
fact by a civil court in an action in personam is not relevant in
criminal cases, to give a finding on the same facts. Similarly, a

-7-
finding on certain facts by the criminal court is not relevant, when the
civil court is called upon to give a finding on the same facts.
The admissibility of a previous judgment is governed by the
provisions of this article there is nothing in law to make a judgment of
a civil court conclusive. The existence of a judgment of a civil court
deciding a question of title or even of possession, does not justify the
criminal court to refuse the reception of evidence. It may terminate
the proceedings on finding that the dispute referred to in Sub-Section
(1) of Section 145, Cr.P.C. has ceased to exist.

(B) Relevancy of Certain Judgments in Probate etc.,


jurisdiction.

(i) “Article 55.


Relevancy of certain judgments in probate etc., jurisdiction: A
final judgment, order on decree of a competent Court in the exercise
of probate matrimonial admiralty or insolvency jurisdiction, which
confers upon or takes away from any person any legal character, or
which declares any person to be entitled to any such character, or to
be entitled to any specific thing, not as against any specified person
but absolutely, is relevant when the existence of any such legal
character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof--
that any legal character which it confers accrued, at the time when
such judgment, order or decree came into operation;

-8-
that any legal character, to which it declares any such person to be
entitled, accrued to that parson at the time when such judgment, order
or decree declares it to have accured to that person;
that any legal character which it takes away from any such person
ceased at the time from which such judgment, order or decree
declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was
the property of that person at the time from which such judgment,
order or decree declares that it had been or should be his property.‖
(ii) Principles. -- A decision in rem not merely declares the status
of the person or thing but ipso facto renders it such as it is declared.
As regards persons, public policy for the peace of society requires that
matters of social status should not be left in continual doubt; and, as
regards things, that everyone, generally speaking, who can be affected
by the decision may protect his interests by becoming a party to the
proceedings.
A judgment in personam is no evidence of the truth either of the
decision or of its grounds between strangers, or a party and a
strangers, or a party and a stranger except.
a) Upon questions of public and general interest.
b) In bankruptcy, administration, divorce, and patent cases, to a
limited extent, or
c) When no operating by contract, admission, or acquiescence.
But a judgment in personam is, in all cases, evidence between
strangers, of its existence and legal effect as distinct from its truth,

-9-
and that a judgment in rem is in addition, evidence between strangers
of the truth of its actual decision.
(iii) Scope. -- (a) General. -- This article consists of two parts : The
first part makes certain judgments, etc., relevant. The second part
makes the judgments conclusive evidence in certain matters. The
conditions necessary for making a judgment relevant may be
considered under two heads:
1. those having reference to the contents of the judgments, and
2. those to the nature of the proceedings in which the judgment is
sought to be relied upon.
First, with reference to the judgment alleged to fall under this article. -
1. it must be --
a) of a competent court.
b) in the exercise of probate, matrimonial, admiralty or
insolvency jurisdiction.
2. it must. --
a) confer upon or take away from any person any legal character,
or
b) declare any person to be entitled to any such character, or
c) to be entitled to any specific thing, not as against any
specified person, but absolutely.
Secondly, with regard to the proceedings in which the said judgment
is sought to be relief upon as a piece of evidence, the existence of any
such legal character or the title of any such person to anything must
be relevant.

- 10 -
It declares the purpose for which the judgment of a competent court
operates as conclusive against the world, and so far as such purposes
relate to the status of what is referred to as legal character of a person,
it specifies three purposes only. It provides that the judgment is
conclusive proof only for showing:
a) that the judgment has conferred a legal character on a person, or
b) that it has declared that a person had such legal character. or
c) that it has declared that any legal character of a person which
subsisted had ceased to exist.
The principle underlying a judgment in rem is, that the entire world
may be regarded as party to the suit in which it was pronounced. The
principle stated by Phipson as ―regards persons is, that public policy
for the peace of society requires that matters of social status should
not be left in continual doubt; and as regards things, that, generally
speaking, everyone who can be affected by the decision may protect
his interests by becoming a party to the proceedings.‖
(iv) Final judgment, order or decree. -- For a judgment,
order or decree to be relevant, it must be final. The word ―final‖ does
not mean ‗not subject to appeal‘ but final as distinguished from
interlocutory.
(v) Competent Court. -- The expression ―Competent Court‖ in
this article means the court of any country which is competent to pass
such a judgment as is referred to in this article, that is to say, a
judgment in rem.

- 11 -
The judgment has to be of a court which had jurisdiction over the
parties and the subject-matter. Only the judgment of such court would
be conclusive proof of the legal character it confers or takes away.
(vi) Legal character. -- The judgments referred to in this article
are conclusive proof of certain things only, namely, the legal
character to which a person may be declared to be entitled, or to
which a person may be declared not to be entitled, and the title which
a person may be declared to possess in a specific thing. No judgment,
except that passed by a court in the exercise of probate, matrimonial,
admiralty or insolvency jurisdiction, upon any matter indicated in this
article can have the effect of a judgment in rem.
A declaration of a legal right is a different thing from a declaration of
a legal character. The word ―character‖ means status, it is something
more than a mere right.
(a) Probate jurisdiction. -- The court exercises testamentary and
intestate jurisdiction under the 2Succession Act, 1925.
An order for grant of probate operates as judgment in rem. And the
judgment of a court refusing probate is judgment in rem as one which
grants it.
The judgment of the Probate Court is conclusive only with respect to
the various legal characters or declarations made in those
proceedings, in so far as they are within the scope of the proceedings.
The grant of letters of Administration, so long as it subsists, is
conclusive evidence as regards the proper execution of the will and
the legal character conferred on the administrator. The action of the

- 12 -
Probate Court in admitting the will to probate so long as the order
remains in force is conclusive as to the due execution and validity of
the will.
(b) Matrimonial jurisdiction. -- The courts exercise
matrimonial jurisdiction relating to marriage and divorce. The
judgment of such courts having matrimonial jurisdiction is a judgment
in rem.
The judgment in matrimonial case for restitution of conjugal rights
though not judgment in rem but the judgment is binding the parties in
personem and admissible under Article 55 of Qanun-e-Shahadat
Order.
(c) Admiralty jurisdiction. -- With regard to this jurisdiction,
the Vice-Admiralty Court, thereafter under the 3Letters Patent and the
Colonial Courts of Admiralty Act, 1896, the High Courts were
declared to be a Court of Admiralty. It is with reference to vessels
condemned as prizes that questions concerned with this jurisdiction
usually arise. The finding of the Admiralty Court, restoring the
certificate of an officer of a ship which had been suspended, is a
judgment in rem, so far as the status and certificate of that officer is
concerned.
(d) Insolvency jurisdiction. -- Sindh High Court exercise this
jurisdiction under the 4Insolvency (Karachi Division) Act III of 1909
and Mofussil Courts under the 5Provincial Insolvency Act (Act V of
1920). A judgment in rem is conclusive only as regards status but not
as regards the grounds on which it is based. An order adjudicating a
- 13 -
person as an insolvent and vesting his property in the Official
Receiver no doubt operates as a judgment in rem.
The conferring of the legal character and the taking away of legal
character relate to man‘s status. A man‘s legal character is the same
thing as a man‘s status. A man‘s status or ―legal character‖ is
constituted by the attributes which the law attaches to him in his
individual and personal capacity, the distinctive mark of dress, as it
were, with which the law clothes him apart from the attributes which
may be said to belong to normal humanity in general. According to
Holland, the chief varieties of status among natural persons may be
referred to the following cause : (1) sex, (2) minority, (3) ‗patria
potestas‘ and ‗manus‘, (4) converture, (5) celibacy, (6) mental defect,
(7) bodily defect, (8) rank, caste and official position, (9) slavery, (10)
profession, (11) civil death, (12) illegitimacy, (13) hearsay, (14)
foreign nationality, and (15) hostile nationality.

(C) Relevancy and effect of judgments, orders or


decree relate to matters of a public nature.

(i) “Article 56.


56. Relevancy and effect of judgments, orders or decrees, other
than those mentioned in Article 55: Judgments, orders, or decrees
other than those mentioned in Article 55 are relevant if they relate to
matters of a public nature relevant to the enquiry, but such judgments,
orders or decrees are not conclusive proof of that which they state.‖

- 14 -
Illustrations
A sues B for trespass or his land, B alleges the existence of a public
right of way over the land, which A denies.
The existence of a decree in favour of the defendant, in a suit by A
against C for a trespass on the same land in which C alleged the
existence of the same right of way, is relevant, but it is not conclusive
proof that the right of way exists.
(ii) Principle. This article also forms an exception to the general
rule that no one shall be affected or prejudiced by judgments to which
he is not a party or privy. In matters of public right, however, the new
party to the second proceedings, as one of the public, has been
virtually a party to the former proceedings. Judgments of this
character (which are regarded as a species of reputation) are said to be
receivable on the same grounds as evidence of reputation, which in
matters of public or general interests is admissible. On account of the
public nature of the earlier proceedings, an exception is made to the
rules which exclude res inter alios acta. But the earlier judgment is
not conclusive; and the technical considerations by which the rule as
to res judicata is narrowed, lose all their force when it is considered
whether the judgment may be used, not as a bar, but merely as
evidence in the cause.
The judgment in a previous suit, to which one of the parties in the
subsequent suit was not a party, maybe admissible in evidence for
certain purposes and with certain object in the subsequent suit. The
verdict, judgment or order, even inter alios, of a competent tribunal is

- 15 -
admissible, not as tending to prove any specific fact existing at the
time, but as evidence of the most solemn kind of an adjudication upon
the state of facts and the question of usage at the time.
The relevancy of adjudications upon subjects of a public nature
(which means subjects of public or general interest, and will thus
include public or general rights and customs), such as customs, rights
of ferry and the like, forms an exception to the general rule that
judgments inter partes are not admissible either for or against
strangers in proof of the facts adjudicated.
This article is in accordance with the English Law as stated in Taylor.
The law has been stated thus in 6evidence by Taylor (Section 1686).
―The exception (to the rule that judgments inter partes, are not
admissible either for or against strangers in proof of the facts
adjudicated) is allowed in favour of verdicts, judgments and other
adjudications upon subjects of a public nature, such as customs,
prescriptions, tolls, boundaries between parishes, counties, or manors,
rights of ferry, liabilities to repair roads, or sea-walls, moduses, and
the like. In all cases of this nature, as evidence of reputation will be
admissible, adjudications -- which for this purpose are regarded as a
species of reputations -- will also be received, and this, too whether
the parties in the second suit be those who litigated the first or be utter
strangers. The effect, however, of the adjudication, when admitted,
will so far vary, that, if the parties be the same in both suits, they will
be bound by the previous judgment; but if the litigants in the second

- 16 -
suit be strangers to the parties in the first, the judgment, though
admissible, will not be conclusive.‖
(iii) Judgments, order or decrees. -- The article applies only
to judgments, orders or decrees other than those mentioned in Article
55 of Qanun-e-Shahadat Order. It has no application to --
A final judgment, order or decree of a competent court falling under
Article 55.
(iv) Probative value of judgments.
(a) General. -- Articles 55 & 56 of the Qanun-e-Shahadat Order
draw a distinction between judgments in rem and judgments in
personam, and it is clear from the sections that a judgment which does
not fall within Article 55 of the Qanun-e-Shahadat Order can only be
evidence but cannot be used for the purpose of preventing the other
side from proving facts which he sets up. To hold that a judgment
which does not fall under Article 55 of the Qanun-e-Shahadat Order is
conclusive proof would be to act in direct contravention of the
provisions of this article which declares that judgments, orders or
decrees, other than those mentioned in this article, are relevant but not
conclusive proof. But, where a judgment is admissible it is
―conclusive evidence for or against all persons, whether parties,
privies or strangers, of its existence, date and legal effect as
distinguished from the accuracy of the decision rendered. Where a
judgment is not in rem nor relating to matters of a public nature, nor
between the parties to a subsequent suit, the fact, that the court by that
judgment decides a point in a particular way, is not relevant for the
- 17 -
purpose of the decision of the same point in the subsequent suit. In
order to be admissible under this article, it ought to appear clearly
from the previous judgment that a question of a public nature, e.g., of
a custom, was determined.
(b) Custom, judgments on, question of. -- On the question of
custom, a decision in a case as regards the existence or non-existence
of custom is good evidence in other cases.
The most satisfactory evidence of an enforcement of a custom is a
final decree based on the custom. A judgment on a question of custom
is relevant, not merely as an instance under Article 26 of the Qanun-e-
Shahadat Order, but also under this article as evidence of the custom.
When a custom is repeatedly ascertained and acted upon judicially.
(c) Local custom. -- The existence of a local custom, such as a
right of pre-emption, is a matter of a public nature and previous
judgments will be admissible under this article in proof thereof. But a
judgment recognising a local custom on consent of parties and not on
enquiry has little probative value.
(d) Custom of class of people. -- Where a custom, alleged to be
followed by any particular class of people, is in dispute, a judicial
decision in which such custom has been recognized as the custom of
the class in question is good evidence of the existence of such custom.
Decisions of courts as regards the caste of a family are relevant.
(e) The matter of a wakf is a matter of public nature within the
meaning of this article. So also, a right claiming certain land as takya
is a right of public nature, and a judgment deciding that the land was
- 18 -
takya, though by no means res judicata, is relevant in a subsequent
suit involving the same question, though it does not arise between the
same parties.
(f) Judgments in suits under Section 92 CPC. -- A judgment
in a suit under Section 92 CPC, not being a judgment passed by a
competent court in the exercise of probate, matrimonial, admiralty or
insolvency jurisdiction, is not covered by Article 55 of the Qanun-e-
Shahadat Order, but it relates to maters of a public nature and is
relevant under this article. As regards the binding nature of such a
judgment, there are authorities which lay down that it is, or has the
effect of a judgment in rem and binds the entire world.
(v) Matters of a public nature. -- According to this article, an
order other than the one mentioned in Article 55 of the Qanun-e-
Shahadat Order is relevant, if it relates to matters of a public nature
relevant to the enquiry. The words ―matters of a public nature‖ are
wide enough to include matters in which a large section of the public
is interested. In order that a matter may be a matter of a public nature,
it is not necessary that the whole of the public of a locality may be
interested in it.
(vi) Customs of succession.
(a) General. -- The existence of custom of succession in particular
communities is a matter of public interest, and decrees of competent
courts are good evidence thereof.

- 19 -
(b) Village tenures, customs as to. -- A custom, under which
lands are held, is a matter of public and general interest to all the
villagers, and a former decree is most cogent evidence against them of
the existence and validity of the custom whose exercise a plaintiff
seeks to enforce.

(D) Relevancy of judgment when such judgment, order


and decree is a fact in issue or is relevant under some
provisions of the Order.

(i) “Article 57.


57. Judgments, etc., other than those mentioned in Articles 54 to
56, when relevant. -- Judgments, orders or decrees, other than those
mentioned in Articles 54, 55 and 56 are irrelevant, unless the
existence of such judgment order or decree is a fact-in-issue or is
relevant under some other provision of Qanun-e-Shahadat Order.‖
Illustrations
(a) A and B separately sue C for a libel which reflects upon each of
them, C in each case says that the matter alleged to be libellous is
true, and the circumstances are such that it is probably true in each
case, or in neither.
A obtains a decree against C for damages on the ground that C failed
to make out his justification. The fact is irrelevant as between B and
C.
(b) A prosecutes B for adultery with C, A's wife.
B denies that C is A's wife but the Court convict, B of adultery
- 20 -
Afterwards, C is prosecuted for bigamy in marrying B during A's
lifetime. C says that she never was A's wife.
The judgment against B is irrelevant as against C,
(c) A prosecutes B for stealing a cow from him, B is convicted. A
afterwards sues C for the cow which B had sold to him before his
conviction. As between A and C, the judgment against B is irrelevant.
(d) A has obtained a decree for the possession of land against B. C,
B's son, murders A in consequence.
The existence of the judgment is relevant, as showing motive for a
crime.
(e) A is charged with theft and with having been previously convicted
of theft. The previous conviction is relevant as a fact-in-issue.
(f) A is tried for the murder of B. The fact that B prosecuted A for
libel and that A was convicted and sentenced, is relevant and under
Article 21 as showing the motive for the fact-in-issue.
(ii) Judgments other than those mentioned in Articles
54, 55 & 56 when relevant. -- Judgments in previous suit not
between the same parties are not relevant to prove title or possession
in a subsequent suit between different parties as they are not covered
by Articles 54 to 56. The article lays down that judgments, orders or
decrees, other than those mentioned in Articles 54, 55 & 56 are
relevant if --
1. their existence is a fact in issue, or
2. they are relevant under some other provision of this Order.

- 21 -
Thus, they may be relevant and admissible to prove that a right was
asserted or denied under Article 26 of the Qanun-e-Shahadat Order, or
to explain or introduce facts in issue, or to explain the history of the
case.
(iii) Principle. -- Judgments considered as judicial opinions are
only relevant under Articles 54 to 56 under the circumstances
mentioned in those articles. Other judgments, when tendered against
strangers, are sometimes said to be excluded as opinion evidence,
sometimes as hearsay, but more commonly on the ground expressed
in the maxims res inter alios acta (or judicata) alteri noccre non
debet (things done between others ought not be injure an outsider) and
res inter alios judicata nullum inter alios prejudicium facit (matters
adjudged in the law suits of others do not prejudice those who were
not parties to them). Such judgments are said not to be evidence for a
stranger, even against a party, because their operation would thus not
be mutual.
(1) Article 54 deals with the effect of judgments as barring suits or
trials by reason amongst others of their being res judicata, (2) Article
55 deals with the effect of the so-called judgments in rem; and (3)
Article 56 deals with the admissibility of judgments relating to
matters of a public nature. This article declares that judgments, orders
and decrees other than those mentioned in those articles, are, of
themselves, irrelevant, that is, in the sense that they can have any such
effect or operations as mentioned in those articles qua judgment,
orders and decrees, that is, as adjudications upon and proof of the

- 22 -
particular points which they decide. For a former judgment, which is
not a judgment in rem, nor one relating to matters of a public nature is
not admissible in evidence in a subsequent suit, either as a res
judicata, or as proof of the particular point which it decides, unless it
is given between the same parties or those claiming under them. but
the present article expressly contemplates cases in which judgments
would be admissible either as facts in issue or as relevant facts under
the other articles of the Qanun-e-Shahadat Order.
If a judgment is not admissible as not falling within the ambit of
Articles 54 to 56, it must fulfil the conditions of Article 56 otherwise
it cannot be relevant under Article 26 of Qanun-e-Shahadat Order.
The words ―other provisions of this Act‖ in Article 57 cannot cover
Article 26 because this article does not deal with judgments at all.
A judgment not inter partes holding the property in dispute as wakf
property would not be binding on a party in the same manner as they
would be binding on the parties to the suit, but is relevant and
admissible in evidence.
In cases under the 7Land Acquisition Act for determination of the
compensation, judgments not inter partes fixing compensation of land
in the same neighbourhood during the same period are admissible in
evidence.
There must be material on the record to show that the judgment
relates to the land similarly situate. The similarity of the situation is a
matter of proof. The proximity of the land to the acquired land, its
situation such as whether it is on the side of a road which makes it

- 23 -
important, the level of the land, its condition, its adaptability to the
same purpose, are matters which may be relevant. Therefore unless
the party seeking to adduce evidence of transactions of comparable
land places such material before the Court, it may be difficult for the
Court to make use of the material relating to transactions in regard to
such properties.
(iv) Judgment of criminal Court, relevancy in other
criminal case. -- In respect of the same occurrence where some of
the accused were tried and convicted, the judgment is not relevant in
the trial of the remaining accused held separately. The appreciation of
evidence by the Court in the earlier criminal trial and its findings on
the basis of that evidence are not relevant in the subsequent trial under
any other provisions of the Qanun-e-Shahadat Order. Such findings
cannot be relevant in a criminal case merely on the ground that the
judgment containing such findings is an inter partes judgment.

(E) Effect of fraud collusion in obtaining judgment, of


incompetency of court.

(i) Article 58.


“58. Fraud or collusion in obtaining judgment, or incompetency
of Court, may be proved. -- Any party to a suit or other proceeding
may show that any judgment, order or decree which is relevant under
Articles 54, 55 & 56, and which has been proved by the adverse party
was delivered by a Court not competent to deliver it, or was obtained
by fraud or collusion.‖
- 24 -
(ii) Principles. -- A judgment delivered by a court not competent
to deliver it, as by a Court which had no jurisdiction over the parties
or the subject-matter of the suit, is a mere nullity, and though the
maxim is stringent that no man shall be permitted to aver against a
record, yet when fraud can be shown this maxim does not apply, nor
in the case of collusion, when a decree is passed between parties who
were really not in conflict with each other. Fraud avoids all judicial
acts. It is an extrinsic collateral act, which vitiates the most solemn
proceedings of Courts of Justice, which, upon being satisfied of such
fraud, have a power to vacate and should vacate their own judgments.
In the application of this rule, it makes no difference whether the
judgment impugned has been pronounced by an inferior or by the
highest tribunal; but in all cases alike, it is competent for every Court,
whether superior or inferior, to treat as a nullity any judgment which
can be clearly shown to have been obtained by manifest fraud.
Where a Court discovers that it has acted without jurisdiction it has an
inherent power to set aside its own judgment.
(iii) Scope and applicability. -- When one of the parties to a
suit tenders or has put in evidence, a judgment, order or decree under
Articles 54, 55 & 56, it is open to the other party, under this article, to
avoid its effect on any of the three grounds: (a) want of jurisdiction in
the Court which delivered the judgment; (b) that the judgment was
obtained through fraud; or (c) through collusion. To the extent of the
three grounds aforesaid, the principle of res judicata in Section 11 of
the CPC, is modified. The provision of this article is not idle. If the

- 25 -
judgment is shown to be obtained by collusion etc. it will not operate
as res judicata. The principle of res judicata is outside the region of
fraud or collusion. Even a judgment in rem, in a matrimonial matter
can be attacked under this article on the ground of fraud or
incompetency of the court. The article is applicable both to civil and
criminal proceedings. In cognizable cases, the Magistrate no doubt
controls the proceedings, but, even in such cases, it is possible for a
private complainant to collude with the accused and obtain an
acquittal by perpetrating fraud upon the Court. It can, therefore, be
shown that the acquittal was brought about by fraud or collusion, and
is, therefore, a nullity. But the article applies only, when a judgment
or decree has been proved. The article does not apply to judgments
admissible under Article 57, ante. The article has no application to
proceedings for rateable distribution of assets under Section 73 CPC,
which are of non-judicial character.
Article 58 deals with two situations. When the judgment has been
passed by a court which had no jurisdiction to pass the same as a
result would become a nullity and in such a case the judgment would
be non est in the eye of law, and where such a judgment is relied upon
by a party it would be open to the other party to show that such
judgment being non est in the eye of law the same is not a relevant
fact for the purpose of Articles 54, 55 & 56 of the Qanun-e-Shahadat
Order and is void. However, when a judgment is produced as a
relevant fact by any party which is sought to be assailed by the other
party on the ground of fraud or collusion, such judgment which is

- 26 -
obtained by fraud or collusion is not void but a voidable one, when a
judgment is impugned as being a voidable one, on the ground of
existence of fraud, the particulars of fraud or such other particulars
which are necessary for the purpose of rendering it voidable, must be
pleaded and proved.
(iv) Incompetency.
(a) General. -- A judgment delivered by a Court not competent to
deliver it, is a mere nullity, and cannot have any probative force
whatever between the parties, any may be declared void by every
Court in which it is presented. It need not be set aside, but may simply
be ignored. The words ‗not competent‘ in this article refer to a Court
acting without jurisdiction. Jurisdiction is the power of a Court to hear
and determine a cause, to adjudicate and exercise any judicial power
in relation to it; in other words, by jurisdiction is meant the authority
which a Court has to decide matters that are litigated before it, or to
take cognizance of matters presented in a formal way for its decision.
This jurisdiction of the Court may be qualified or restricted by a
variety of circumstances. Thus, the jurisdiction may have to be
considered with reference to place, value and nature of the subject-
matter.
(b) Who can show incompetency? -- Although one Court
cannot set aside the proceedings of another court, for want of
jurisdiction, yet when a matter arises before a Court in the ordinary
course of its jurisdiction, and one of the parties relies on, or seeks to
protect himself by the proceedings of another Court, then in that way
- 27 -
the jurisdiction of the Court whose proceedings are pleaded may be
inquired into.
(c) Erroneous decision. -- The competency of a Court cannot
depend on, whether a point which it decides has been raised or argued
by a party or counsel. It cannot be said that, whenever a decision is
wrong in law or violates a rule of procedure, the Court must be held
incompetent to deliver it. It has never been and could not be held, that
a Court which erroneously decrees a suit which it should have
dismissed as time-barred or barred by the rule of res judicata, acts
without jurisdiction and is not competent to deliver its decree.
(v) Fraud.
(a) General. -- ―Fraud‖ is an extrinsic, collateral act, which vitiates
the most solemn proceedings of Courts of Justice.
Fraud, vitiates everything, and the court being satisfied of such fraud,
has a power to vacate and should vacate its own judgment.
There is no more stringent maxim than that no man shall be permitted
to aver against a record, but where fraud can be shown this maxim
does not apply. ―Fraud is proved when it is shown that a false
representation has been made: (1) knowingly or (2) without belief in
its truth or (3) recklessly, without caring whether it be true or false.
(b) Negligence and fraud. -- Fraud or collusion must be
distinguished from negligence. Negligence is a negative act and
consists of the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct
of human affairs, would do. Fraud and collusion, on the other hand,
- 28 -
are positive acts committed with the object of deceiving or injuring
someone. When a person commits a fraud, or is guilty of collusion, he
does so deliberately and with the intention of bringing about results,
but in the case of negligence intention is absolutely wanting. Mere
negligence or gross negligence may not amount to any mala fide
conduct. Negligence may be due to an error of judgment on the facts
at the disposal of the litigant.
Where an earlier suit filed by minor through next-friend is dismissed,
the minor on attaining majority can file suit for setting aside the
decree and judgment on the ground of gross negligence on the part of
the next friend in conducting the earlier suit.
(vi) Who may show fraud?
(a) Strangers. -- With regard to the parties who may show fraud, it
is clear that a stranger, against whom such judgment is used as
evidence, may impeach it on the ground of fraud.
A plaintiff who was not a party to the collusive decree can assail the
decree on the ground that the decree was intended to defeat his/her
legitimate interest. It is not necessary for him/her to prove fraud
between the parties to the decree.
(b) Parties. -- A party to a previous suit in which a judgment was
obtained may be in a subsequent suit aver and prove that it was
obtained by fraud though the judgment remains unreversed. The
article lays down not merely a rule of law relating to evidence, but it
also lays down a rule of procedure as to how the judgment should be
impeached. The article not merely declares that the judgment which is
- 29 -
conclusive against a party may be impeached by such party on the
ground of fraud or collusion, it also lays down that the party seeking
to impeach it may impeach it in the very suit or proceeding in which
the judgment is obtained against him by his opponent (Section 12 (2)
CPC).
(vii) Collusion. -- The Order contains no definition of the word
―collusion‖ for the purposes of this article. ―Collusion‖ is the uniting
for the purposes of fraud or deception, and has been defined to be
deceitful agreement or compact between two or more persons to do
some act in order to prejudice a third person or for some improper
purpose. Collusion in judicial proceedings is a secret agreement
between two persons that the one should institute a suit against the
other in order to obtain the decision of a judicial tribunal for some
sinister purpose.

- 30 -
CHAPTER-XV

15. EXPERT OPINION.


(1) “Article 59.
59. Opinions of experts: When the Court has to form an opinion
upon a point of foreign law, or of science/or art, or as to identity of
hand-writing or finger impression; [or as to authenticity and integrity
of electronic documents made by or through an information system]
the opinions upon that point of persons specially skilled in such
foreign law, science or art, or in questions as to identity of hand-
writing or finger impressions [or as to the functioning, specifications,
programming and operations of information systems, are relevant
facts].
Such persons are called experts.‖
Illustrations
(a) The question is, whether the death of A was caused by poison
The opinion of experts as to the symptoms produced by the poison by
which A is supposed to have died, are relevant.
(b) The question is, whether A, at the time of doing a certain act,
was by reason of unsoundness of mind, incapable of knowing the
nature of the act, or that he was doing what was either wrong or
contrary to law.
The opinions of experts upon the question whether the
symptoms exhibited by A commonly show unsoundness of mind, and
whether such unsoundness of mind usually renders persons incapable

Page - 1 -
of knowing the nature of the acts which they do, or of knowing that
what they do either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A.
Another document is produced which is proved or admitted to have
been written by A.
The opinions of experts on the question whether the two
documents were written by the same person or by different persons,
are relevant.

(A) Medical.

(i) Fractures.
1
Forensic Medicine and Toxicology by J.B. Mukherjee wherein
depressed and comminuted fractures are described by the learned
author thus -

(a) Depressed Fractures


When the portion of fractured bone is driven inwards, it is
known as depressed fracture. It is often designated as ―fractures
a la signature”, as the pattern or shape of the fracture often
points towards the shape of the offending weapon or agent. This
type of fracture of skull has got great medicolegal significance,
as it often suggests the probable manner of application of
violence and also the relative position of the victim and the
assailant at the material moment.

-2-
Blow with heavy weapon having small striking surface such as
hammer, knob of stick or lathi, axe, brick bat etc. will cause
localized depressed fracture of the skull when its outer table will
be driven into the diploe, the inner table usually getting
fractured irregularly with comminution of fragments, which will
injure the meninges and the brain underneath. When a hammer
is used, the part of the weapon that strikes the skull first i.e. (the
base of the striking surface nearest the assailant), will be driven
more deeper than the rest of the striking surface; this edge will
shelve more downwards to the main depression, being bordered
by a cliff like terrace formed by compression of tables of skull at
the margin of the fracture. The depression will be somewhat
circular looking, more or less like the shape, diameter or radius
of the hammer. This type of depression of the skull will thus
suggest the position of the assailant.

(b) Comminuted Fractures


In this type, the bone gets broken into multiple pieces, occurring
often as complications of fissured or depressed fractures. These
are usually caused by fall from height, traffic accidents or from
blows by heavy weapons with a large striking surface;
alternatively by forcible or repeated blows more or less over the
same area, by weapons having a relatively small striking
surface. This can also result from a kick by an animal or by a
bullet.

-3-
When there is no displacement of the comminuted fragments,
the area will look like a spiders' web or mosaic. Fissured
fractures usually radiate for varying distances from the area of
comminution in all directions. When the violence applied is
forcible, the comminuted fragments may get displaced; some of
them may be recovered from the brain substance.

Comminuted fractures occur more frequently, when the person


is struck with head supported, than when it is free to move.‖

(c) Weight of medical opinion:


A medical witness called in as an expert to assist the Court is not a
witness of fact and the evidence given by the medical officer is really
of an advisory character given on the basis of the symptoms found on
examination. The expert witness is expected to put before the Court
all materials inclusive of the data which induced him to come to the
conclusion and enlighten the Court on the technical aspect of the case
by explaining the terms of science so that the Court although, not an
expert may form its own judgment on those materials after giving due
regard to the expert's opinion because once the expert's opinion is
accepted, it is not the opinion of the medical officer but of the Court.

35. 2Nariman, J. in Queen v. Ahmed Ally, (1869) 11 Sutherland WR


Cr 25 while expressing his view on medical evidence has observed as
follows:

―The evidence of a medical man or other skilled witnesses,


however, eminent, as to what he thinks may or may not have
-4-
taken place under particular combination of circumstances,
however, confidently, he may speak, is ordinarily a matter of
mere opinion.‖

―[I]t is well settled that medical jurisprudence is not an exact


science and it is indeed difficult for any Doctor to say with
precision and exactitude as to when a particular injury was
caused …as to the exact time when the appellants may have had
sexual intercourse with the prosecutrix.‖

―We are aware of the fact that sufficient weightage should be


given to the evidence of the doctor who has conducted the post
mortem, as compared to the statements found in the text books,
but giving weightage does not ipso facto mean that each and
every statement made by a medical witness should be accepted
on its face value even when it is self-contradictory.‖

―This brings us to an ancillary issue as to how the Court would


appreciate the evidence in such cases. The possibility of some
variations in the exhibits, medical and ocular evidence cannot be
ruled out. But it is not that every minor variation or
inconsistency would tilt the balance of justice in favour of the
accused. Of course, where contradictions and variations are of a
serious nature, which apparently or impliedly are destructive of
the substantive case sought to be proved by the prosecution,
they may provide an advantage to the accused. The Courts,
normally, look at expert evidence with a greater sense of

-5-
acceptability, but it is equally true that the courts are not
absolutely guided by the report of the experts, especially if such
reports are perfunctory, unsustainable and are the result of a
deliberate attempt to misdirect the prosecution.‖

―Where the eye witness account is found credible and


trustworthy, medical opinion pointing to alternative possibilities
may not be accepted as conclusive.‖

(d) Value of an expert in the eye of law:


―The essential principle governing expert evidence is that the
expert is not only to provide reasons to support his opinion but
the result should be directly demonstrable. The court is not to
surrender its own judgment to that of the expert or delegate its
authority to a third party, but should assess his evidence like any
other evidence. If the report of an expert is slipshod, inadequate
or cryptic and the information of similarities or dissimilarities is
not available in his report and his evidence in the case, then his
opinion is of no use. Indeed the value of the expert evidence
consists mainly on the ability of the witness by reason of his
special training and experience to point out the court such
important facts as it otherwise might fail to observe and in so
doing the court is enabled to exercise its own view or judgment
respecting the cogency of reasons and the consequent value of
the conclusions formed thereon. The opinion is required to be
presented in a convenient manner and the reasons for a

-6-
conclusion based on certain visible evidence, properly placed
before the Court. In other words the value of expert evidence
depends largely on the cogency of reasons on which it is based.‖

The skill and experience of an expert is the ethos of his opinion,


which itself should be reasoned and convincing. But if such eye-
witnesses and other prosecution evidence are trustworthy, have
credence and are consistent with the eye version given by the
eye-witnesses, the Court will be well within its jurisdiction to
discard the expert opinion. An expert report, duly proved, has its
evidentiary value but such appreciation has to be within the
limitations prescribed and with careful examination by the
Court.

If the opinion is bereft of logic or objectivity, the court is not


obliged to go by that opinion.

Failure to ascertain its origin, it renders the serological finding of no


consequence.

This issue is not res integra.

―Failure of the Serologist to detect the origin of the blood, due


to disintegration of the serum in the meanwhile, does not mean
that the blood stuck on the axe would not have been human
blood at all.

-7-
Unless the doubt is of a reasonable dimension which a judicially
conscientious mind entertains with some objectivity, no benefit
can be claimed by the accused.

That in the absence of the report regarding the origin of the blood, the
trial court could not have convicted the accused. The Serologist and
Chemical Examiner has found it that the chadar (sheet) seized in
consequence of the disclosure statement made by the appellant was
stained with human blood. As with the lapse of time the classification
of the blood could not be determined, no bonus is conferred upon the
accused to claim any benefit on the strength of such a belated and
stale argument.‖

(B) Bite mark analysis.


Which is done through comparison of bite marks found on the body
of a victim with the dental models of the suspects. Suffice it to note
that this method of identification is scientific and widely relied upon.
In the well-known book on 3Medical Jurisprudence and Toxicology
(Law, Practice and Procedure) by Dr. K.S. Narayan Reddy, Third
Edition, 2010, Chapter VIII page 268, human bites, their patterns, the
manner in which they should be lifted with a swab, moistened with
sterile water and the manner in which such swabs need to be handled
is delineated along with their usefulness in identification. The last
aspect is dealt with as follows:-

―They are useful in identification because the alignment of teeth is


peculiar to the individual. Bite marks may be found in materials left at

-8-
the place of crime e.g., foodstuffs, such as cheese, bread, butter, fruit,
or in humans involved in assaults, when either the victim or the
accused may show the marks, usually on the hands, fingers, forearms,
nose and ears.‖

The author dwells upon the methods used for bite mark analysis
including the photographic method. The photographic method is
described as under:-

(i) “Photographic method: The bite mark is fully photographed


with two scales at right angle to one another in the horizontal plane.
Photographs of the teeth are taken by using special mirrors which
allow the inclusion of all the teeth in the upper or lower jaws in one
photograph. The photographs of the teeth are matched with
photographs or tracings of the teeth. Tracings can be made from
positive casts of a bite impression, inking the cutting edges of the
front teeth. These are transferred to transparent sheets, and
superimposed over the photographs, or a negative photograph of the
teeth is superimposed over the positive photograph of the bite.
Exclusion is easier than positive matching.‖

Another scientific tool resorted to by the prosecution for inculpating


the accused is call detail analysis of the mobile numbers.

-9-
(C) What is DNA?
It means:
Deoxyribonucleic acid, which is found in the chromosomes of the
cells of living beings is the blueprint of an individual. DNA decides
the characteristics of the person such as the colour of the skin, type of
hair, nails and so on. Using this genetic fingerprinting, identification
of an individual is done like in the traditional method of identifying
fingerprints of offenders. The identification is hundred per cent
precise, experts opine.
There cannot be any doubt whatsoever that there is a need of quality
control. Precautions are required to be taken to ensure preparation of
high molecular weight DNA, complete digestion of the samples with
appropriate enzymes, and perfect transfer and hybridization of the
blot to obtain distinct bands with appropriate control. But in this case
there is nothing to show that such precautions were not taken.
Indisputably, the evidence of the experts is admissible in evidence in
terms of Article 59 of Qanun-e-Shahadat Order. In cross-examination,
where expert had stated as under:
If the DNA fingerprint of a person matches with that of a sample, it
means that the sample has come from that person only. The
probability of two persons except identical twins having the same
DNA fingerprint is around 1 in 30 billion world population.
In cases involving biological evidence, ―chain of custody‖ needs to be
established.

- 10 -
In cases involving biological evidence the concept of ―chain of
custody‖ needs to be established. ―Chain of custody‖ means the
complete record of biological evidence from the place of its extraction
and up to its presentation in the Court and its complete documentation
at every stage. The possession, time and date of transfer, and location
of evidence from the time it is obtained to the time it is presented in
the Court is called the ―chain of custody‖.
In order to prove the authenticity and correctness of DNA analysis,
the prosecution must establish the following:-
(i) The process of generation of DNA profiles from the
samples taken from the victims and the accused persons
individually.
(ii) The chain of custody from the generation of the samples to
their deposit with the Laboratory and upto its presentation
in the Court must be established beyond any doubt. That is
to say, to prove the DNA matching, it is necessary to
establish that the various exhibits which were used for the
purpose of DNA analysis were received by the
expert/laboratory without any tampering. In other words,
there was no manipulation with the exhibits from the time
of their generation till the time they were received for
forensic examination and thereafter till the time the
complete record of biological evidence is presented in the
Court.

- 11 -
(iii) The process of matching the DNA through the concerned
expert, thus linking the accused with the victims, the scene
of crime, the dumping spot and the weapons of offence.

1. Procedure for collection and forwarding of


samples of DNA for analysis.

The procedure for collection and forwarding of samples of DNA


finger printing for analysis stipulates that the blood samples (2-3 ml)
can be collected in the sterile blood collection material (EDTA vials),
the samples should then be sent in ice in a thermos flask either by a
messenger or through courier to reach to the testing laboratories
within 72 hours after the collection.
The most common type of DNA profiling for criminal cases and other
types of forensic use is called ―STR‖ (Short Tandem Repeat)
Analysis.
The ―STR‖ Analysis is being used for analysing the finger print and
that STR method required 13 STR plus one amelogenin to determine
the identity of persons. Ampflrstr profiler plus kit, an American make,
that requires the use of a ―STR‖ only.
Autosomal STR DNA testing is the most common method in use
criminal cases. In plain English it detects both male and female DNA
Autosomal STR DNA testing is garden variety method which can
produce DNA profiles with sufficient information to provide an
impressive discrimination power between individuals. It is not

- 12 -
uncommon for expected population frequencies of DNA profile to
bost numbers such as 1 in a quadrillion (1 in 1,000,000,000,000).
Y STR DNA testing is becoming more prevalent in forensic DNA
laboratories. It exclusively detects male DNA by focusing on areas on
the Y chromosome. It is particularly useful for samples that contain
trace amounts of male DNA mixed with large concentrations of
female DNA which can effectively swamp out the male DNA present
during autosomal STR DNA testing.

2. Examples of situations in which Y STR testing is


helpful:
 male digital penetration of vagina
The amount of DNA transferred from skin cells and perspiration on
the finger is relatively low compared to the cellular-rich environment
of the vagina.
 semen from a vasectomized male in a vagina
A vast majority of the DNA content in semen is found in the sperm
cells. The semen of vasectomized males will have some DNA, but in
very low concentration compared to the DNA present in a vagina.
In situations such as these, Y STR DNA testing is helpful since it
ignores the female DNA present and provides information on the
male DNA present. However, there is a price to be paid. Y STR
DNA profiles are nowhere near as discriminating as autosomal STR
DNA profiles and are consistent within a paternal lineage. A Y STR
DNA profile said to be consistent with a suspect might be expected to

- 13 -
occur with a frequency of 1 in a few thousand individuals and is
indistinguishable from the biological father or brother of the suspect.

3. DNA Discovery-Getting the Full Picture


The forensic DNA reports generated by crime laboratories are seldom
user friendly for defense attorneys. Forensic DNA testing is highly
complex and sensitive and requires rigorous interpretation. It is not
clinical-type testing in which the testing provides simple ―positive‖
and ―negative‖ results.

When encountering reports from either autosomal STR DNA testing


or Y STR DNA testing, perhaps the most important point to bear in
mind is that the DNA report itself is only the tip of the iceberg.
Thorough DNA discovery is necessary to determine
whether: protocols were adhered to, the actual raw results support the
conclusions, there are any quality issues with the testing or analysts,
sufficient documentation of the process exists, and statistical
corrections are appropriate.

- 14 -
CHAPTER-XVI

“Article 133.
133. Order of examinations: (1) Witnesses shall be first examined-
in-chief, then (if the adverse party so desires) cross-examined, then (if
the party calling him so desires) re-examined.
(2) The examination and cross-examination must relate to relevant
facts but the cross examination need not be confined to the facts to
which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters
referred to in cross examination; and if new matter is, by permission
of the Court, introduced in re-examination, the adverse party may
further cross-examine that matter.‖

Affect of failure to cross-examine a witness double


opportunity.

In the absence of cross-examination a particular point, the evidence of


witness remained unchallenged and ought to have been believed by
Court. Article 133 of Qanun-e-Shahadat Order confers a valuable
right of cross-examining the witness tendered in evidence by the
opposite party. The scope of that provision is enlarged by Article 141
of Qanun-e-Shahadat Order by allowing a witness to be questioned:
(1) to test his veracity,
(2) to discover who he is and what is his position in life, or

Page - 1 -
(3) to shake his credit, by injuring his character, although the answer
to such questions might tend directly or indirectly to criminate him or
might expose or tend directly or indirectly to expose him to a penalty
or forfeiture.
The oft-quoted observation of Lord Herschell, L.C. in 1Browne v.
Dunn, (1893) 6 R 67 clearly elucidates the principle underlying those
provisions. It reads thus:
"I cannot help saying, that it seems to me to be absolutely essential to
the proper conduct of a cause, where it is intended to suggest that a
witness is not speaking the truth on a particular point, to direct his
attention to the fact by some questions put in cross-examination
showing that imputation is intended to be made, and not to take his
evidence and pass it by as a matter altogether unchallenged, and then,
when it is impossible for him to explain, as perhaps he might have
been able to do if such questions had been put to him, the
circumstances which, it is suggested, indicate that the story he tells
ought not to be believed, to argue that he is a witness unworthy of
credit. My Lords, I have always understood that if you intend to
impeach a witness, you are bound, whilst he is in the box, to give an
opportunity of making any explanation which is open to him; and, as
it seems to me, that is not only a rule of professional practice in the
conduct of a case, but it is essential to fair play and fair dealing with
witnesses."
In the absence of cross-examination of the witness, on this crucial
aspect, his statement in the chief-examination has been rightly relied

-2-
upon. There is an age old rule that if you dispute the correctness of the
statement of a witness you must give him opportunity to explain his
statement by drawing his attention to that part of it which is objected
to as untrue, otherwise you cannot impeach his credit…
On the impact of failure to cross-examine the witness who deposed
reference may be made to the commentary on the issue in Phipson on
Evidence (16th Edition) in para 12 – 35 at pg 338A which is to the
following effect:
―20) Duty to cross-examine
―12-35 As a rule a party should put to each of his opponent‗s
witnesses in turn so much of his own case as concerns that particular
witness, or in which he had a share, e.g. if the witness has deposed to
a conversation, the opposing counsel should put to the witnesses, any
significant differences from his own case. If he asks no questions he
will generally be taken to accept the witness‗s account 2(R v Hart
(1932) 23 Cr.App.R 202, considered in 3R. (Wilkinson) v. Director of
Public Prosecutions 167 J.P. 229, QBD) and will not be permitted to
attack it in his final speech: nor will he be allowed in that speech to
put forward explanations where he has failed to cross examine
relevant witnesses on the point.‖
The authoritative commentary by 4Sarkar in the Law of Evidence 17th
Edition (is on the subject). The relevant extract thereof reads as
follows:
Effect of Omitting or Not Cross-Examining a Witness
on Essential Points. [Suggestions].—The skillful cross-
-3-
examiner must hear the statements in examination-in-chief with
attention, and when his turn comes, he should interrogate the witness
on all material points that go against him. If he omits or ignores them,
they may be taken as an acceptance of the truth of that part of
witness‗s evidence. Generally speaking, when cross-examining, a
party‗s counsel should put to each of his opponent‗s witnesses, in
turn, so much of his own case as concerns that particular witness or in
which he had a share. Thus, if a witness speaks about a conversation,
the cross-examining lawyer must indicate by his examination how
much of the witness‗s version of it he accepts and how much he
disputes, and to suggest his own version. If he asks no questions, he
will be taken to accept the witness‗s account [5Flanagan v. Fahy,
1918, 2 1R 361, 6388-89 CA: Browne v. Dunn, infra; see 7Odgers‗
Pleading, 13th Ed pg 261; 8Powell 9th Ed p. 531 : 9Wig Vol.2 para
1371; 10Phipson, 11th Ed p.649; see also 11Chunilal v. H.F. Ins Co., A
12
1958 Pu 440; Babulal v. Caltex (India) Ltd., A 1967 C 205].
Wherever the opponent has declined to avail himself of the
opportunity to put his essential and material case in cross-
examination, it must follow that he believed that the testimony given
could not be disputed at all. It is wrong to think that this is merely a
technical rule of evidence. It is a rule of essential justice [13Carapiet v.
Derderiem, A 1961 C 359. In this case P B Mukharji J, relied on and
quoted the observations of Lords Herschell and Halsbury in 14Browne
v. Dunn, 6 R 67, 76-7, reproduced under s. 146 post under heading :
“Testing veracity and impeaching credit”; State v. Bhola, A 1969 Raj

-4-
220]. Therefore an omission or neglect to challenge the evidence in
chief on a material or essential point by cross-examination, would
lead to the inference that the evidence is accepted, subject of course to
its being assailed as inherently incredible or palpably untrue [See
15
Sachindra v. Nilima, A 1970 C 38, 63; 16Bhag Kaur v. Piara Singh,
1999 (1) PLJR 306 (P &H)].
xxx xxx xxx
Whenever a statement of fact made by a witness is not challenged in
cross-examination, it has to be concluded that the fact in question is
not disputed [17State of Himachal Pradesh v. Thakur Dass, 1983 CrLJ
1694, 1701 (HP) : (1983) 10 Cri LT 370]. If there is no cross-
examination of a prosecution witness in respect of certain facts it will
only show the admission of that fact [18Motilal v. State of Madhya
Pradesh, 1990 CrLJ NOC 125 MP]. Where however, several
witnesses are called to prove the same point, it is not always
necessary that they should all be cross-examined.
―Failure to cross-examine, however, will not always amount to an
acceptance of the witness‗s testimony, e.g. if the witness has had
notice to the contrary beforehand, or the story is itself of an incredible
or romancing character [19Browne v. Dunn, Sup; (quoted in Sukhraji
v. STC, A 1966 C 620)] or the abstention arises from mere motives of
delicacy, as where young children are called as witnesses for their
parents in divorce cases, or when counsel indicates that he is merely
abstaining for convenience, e.g. to save time‖ [Phip 11th Ed p.649].‖

-5-
Testimony of a witness declared hostile: Evidentiary
value
The testimony of a hostile witness cannot be treated as completely
effaced or washed of the record in its totality. To the extent, the
version of such witness is found dependable on a close scrutiny, it can
be accepted by the court.
20
(2012) 4 SCC 327, Bhajju @ Karan Singh v. State of M.P.
―The effect of hostile witnesses, as well as, the worth of the defence
put forward on behalf of the appellant-accused. Normally, when a
witness deposes contrary to the stand of the prosecution and his own
statement recorded under Section 161 Cr.P.C., the prosecutor, with
the permission of the court, can pray to the court for declaring that
witness hostile and for granting leave to cross-examine the said
witness. If such a permission is granted by the court then the witness
is subjected to cross-examination by the prosecutor as well as an
opportunity is provided to the defence to cross-examine such
witnesses, if he so desires. In other words, there is a limited
examination-in-chief, cross-examination by the prosecutor and cross-
examination by the counsel for the accused. It is admissible to use the
examination-in-chief as well as the cross-examination of the said
witness insofar as it supports the case of the prosecution.
It is settled law that the evidence of hostile witnesses can also be
relied upon by the prosecution to the extent to which it supports the
prosecution version of the incident. The evidence of such witnesses
cannot be treated as washed off the records, it remains admissible in

-6-
trial and there is no legal bar to base the conviction of the accused
upon such testimony, if corroborated by other reliable evidence.
Article 150 of the Order enables the Court, in its discretion, to permit
the person, who calls a witness, to put any question to him which
might be put in cross-examination by the adverse party.
The view that the evidence of the witness who has been called and
cross-examined by the party with the leave of the court, cannot be
believed or disbelieved in part and has to be excluded altogether, is
not the correct exposition of law.
The Courts may rely upon so much of the testimony which supports
the case of the prosecution and is corroborated by other evidence. It is
also now a settled cannon of criminal jurisprudence that the part
which has been allowed to be cross-examined can also be relied upon
by the prosecution.‖

-7-
-8-
CHAPTER-XVII

LEADING QUESTION AND ITS PERMISSIBILITY.

(I) “Article 136. Leading Questions. - Any question


suggesting the answer which the person putting it wishes or expects to
receive is called a leading question.‖

(II) “Article 137. When leading questions must not be


asked. - (1) Leading questions must not, if objected to by the
adverse party, be asked in an examination-in-chief, or in a re-
examination, except with the permission of the Court.

(2) The Court shall permit leading questions as to matters which are
introductory or undisputed, or which have, in its opinion, been already
sufficiently proved.‖

(III) “Article 138. When leading questions may be


asked. - Leading questions may be asked in cross-examination.‖

(IV) exceptions.
(a) The authoritative text by Phipson on Evidence (16th
Edition) wherein the author has pointed out three exceptions to the
prohibition against putting leading questions to a witness and has
stated as follows (12-21 at pg 1031):-

Page - 1 -
As the rule is merely intended to prevent the examination from being
conducted unfairly, the judge has a discretion, which is not open to
review, to relax it when he considers it necessary in the interests of
justice. It is always relaxed in three cases: introductory or undisputed
matter; assisting memory; and contradiction.
To shorten proceedings, and bring the witness as quickly as possible
to the material points of the case, it is not only permissible, but
proper, to lead him as to matters which are introductory, or not really
in dispute. Frequently one counsel will indicate to oppositing counsel
that the witness may be led up to a particular point.
A question which merely directs the attention of the witness to a
particular topic, without suggesting the answer required, is not
objectionable.
(b) The above well settled legal position is reiterated
by the leading expert on the subject M.C. Sarkar in his
authoritative text ‗Law of Evidence’ in the following manner: -
(i) Exceptions to the Rule.—The following are exceptions to the
general rule that leading question shall not be asked in examination-
in-chief.
(ii) Introductory or Undisputed Matter.—The court shall
permit leading questions as to matters which are introductory or
undisputed or which have been sufficiently proved (s. 142 2nd para).
The rule that leading questions should not be asked in examination-in-
chief "must be understood in a reasonable sense; for if it were not
allowed to approach the points at issue by such questions,
-2-
examination would be most inconveniently protracted. To abridge the
proceedings, and bring the witness as soon as possible to the material
points on which he is to speak, the counsel may lead him on that
length and may recapitulate to him the acknowledged facts of the
case, which have been already established. The rule, therefore, is not
applied to the part of the examination, which is merely introductory of
that which is material" 1[Tay s. 1404]. It is therefore not only
permissible but proper to lead on matters introductory or undisputed.
It saves much time.
(iii) Identification.—The attention or a witness may be directly
pointed to some persons or things, for the purpose of identifying
them. For instance, it is usual to ask a witness if the accused is the
person whom he refers to. This form of question is obviously
unsatisfactory and the testimony does not carry much weight. "In the
present day it is considered the proper method for counsel merely to
ask, Do you see the person in court? and leave the witness to identify
the prisoner" 2[Powell 9th Ed pp. 528-29]. It is advisable not to lead
under such circumstances. Although it would be perfectly regular to
point to the accused and ask a witness if that is the person to whom
his evidence relates, yet if the witness can, unassisted, single out the
accused, his testimony will have more weight 3[Best s. 643]. As to
identification evidence, see ante pg 88-89.
(iv) Contradictions.—A witness may be asked leading questions
in order to contradict statements made by another witness, e.g. if A

-3-
has said that B told him so and so; B may be asked, Did you ever say
that to A?
(v) Helping Memory.—The rule will be relaxed where the
inability of a witness to answer questions put in the regular way
obviously arises from defective memory 4[Best s. 642]. Thus, where a
witness has on account of illness, illiteracy, old age or failing
memory, or other cause apparently forgotten a fact or a name, and all
attempts to recall it to his mind by ordinary questions have failed, his
attention may be drawn to it by a question in leading form. The object
is to revive or refresh his memory by drawing his attention to a
particular topic without suggesting the answer. Thus, where a witness
stated that he was unable to remember the names of the members of a
firm, but that he could recognise and identify them if they were read
to him, LORD ELLENBOROUGH allowed it to be done 5[Acerro v.
Petroni, 1 Stark 100].
(vi) Hostile Witness.—If a witness called by a party appears to be
hostile or interested for the other party, and exhibits a desire to
suppress the truth, the court may in his discretion allow leading
questions to be put, i.e. allow him to be cross-examined (see s. 154
post).
(vii) Complicated Matter.—The rule will be relaxed, where the
inability of a witness to answer a question put in the regular way
arises from the complicated nature of the matter as to which he is
interrogated [Best s. 642].

-4-
The above six exceptions must not be taken as exhaustive. The court
has always a wide discretion in the matter, and it will allow leading
questions to be put wherever it considers necessary in the interests of
justice. Indeed the judge has, says Taylor, a discretionary power—Not
controllable by the court of appeal 6[see Lawdon v. L, 5 IR CLR
27]—of relaxing the general rule, whenever, and under whatever
circumstances and to whatever extent, he may think fit, though the
power should only be exercised so far as the purposes of justice
plainly require 7[Tay s. 1405]. It is the court, and not the counsel for
the Crown, who can determine whether leading questions should be
permitted, and the responsibility for the permission rests with the
court 8[Barindra v R, 37C 467 14 CWN 114].
Leading question is one which indicates to the witnesses the real or
supposed fact which the prosecutor (plaintiff) expects and desires to
have confirmed by the answer. Leading question may be used to
prepare him to give the answers to the questions about to be put to
him for the purpose of identification or to lead him to the main
evidence or fact in dispute.
The court may permit leading question to draw the attention of the
witness which cannot otherwise be called to the matter under enquiry,
trial or investigation. The discretion of the court must only be
controlled towards that end but a question which suggests to the
witness the answer the prosecutor expects must not be allowed unless
the witness, with the permission of the court, is declared hostile and
cross-examination is directed thereafter in that behalf.

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The prosecutor will not be allowed to frame his questions in such a
manner that the witness by answering merely ―yes‖ or ―no‖ will give
the evidence which the prosecutor wishes to elicit. The witness must
account for what he himself had seen.
Article 136 does not give such power to the prosecutor to put leading
questions on the material part of the evidence which the witness
intends to speak against the accused and the prosecutor shall not be
allowed to frame questions in such a manner to which the witness
answer merely ―yes‖ or ―no‖; but he shall be directed to give evidence
which he witnessed. The question shall not be put to enable the
witness to give evidence which the prosecutor wishes to elicit from
the witness nor the prosecutor shall put into witness's mouth the
words which he hoped that the witness will utter nor in any other way
suggest to him the answer which it is desired that the witness would
give.

(V) Leading question ipso facto by itself will not vitiate


the trial.
Article 162 of the Qanun-e-Shahadat Order would have to be applied
that is a curative provision.
The procedure is meant to subserve and not rule the cause of justice.
Where the outcome and fairness of the procedure adopted is not
doubted and the essentials of the prescribed procedure have been
followed, there is no reason to discard the result simply because

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certain details which have not prejudicially affected the result have
been inadvertently omitted in a particular case.
The pragmatic approach which needs to be adopted while construing
a purely procedural provision. Otherwise, rule of procedure will
become the mistress instead of remaining the handmaid of justice,
contrary to the role attributed to it in our legal system.
If the Court considers that after leaving aside the evidence that has
been improperly admitted, there was enough evidence on the record to
justify the decision of the lower Court, or that if the rejected evidence
were admitted the decision ought not have been affected thereby, no
Court of appeal should set it aside.

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CHAPTER-XVIII

PRODUCTION OF EVIDENCE BECAUSE OF MODERN


DEVICES, ETC.

(i) “Article 164.


164. Production of evidence that has become available because of
modern devices, etc.: In such cases as the Court may consider
appropriate, the Court may allow to be produced any evidence that
may have become available because of modern devices or
techniques.‖

(ii) Conditions for the admissibility of electronic


evidence.
The conditions for admissibility of a tape-recorded statement may be
stated as follows:
(1) The voice of the speaker must be duly identified by the maker of
the record or by others who recognise his voice. In other words, it
manifestly follows as a logical corollary that the first condition for the
admissibility of such a statement is to identify the voice of the
speaker. Where the voice has been denied by the maker it will require
very strict proof to determine whether or not it was really the voice of
the speaker.

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(2) The accuracy of the tape-recorded statement has to be proved by
the maker of the record by satisfactory evidence — direct or
circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape-
recorded statement must be ruled out otherwise it may render the said
statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence
Act.
(5) The recorded cassette must be carefully sealed and kept in safe or
official custody.
(6) The voice of the speaker should be clearly audible and not lost or
distorted by other sounds or disturbances.
In 1American Jurisprudence 2d (Vol. 29) the learned Author on a
conspectus of the authorities referred to in the foot-note in regard to
the admissibility of tape-recorded statements at p. 494 observes thus:
The cases are in general agreement as to what constitutes a
proper foundation for the admission of a sound recording, and
indicate a reasonably strict adherence to the rules prescribed for
testing the admissibility of recordings, which have been outlined
as follows:
(1) a showing that the recording device was capable of taking
testimony;
(2) a showing that the operator of the device was competent;
(3) establishment of the authenticity and correctness of the
recording;

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(4) a showing that changes, additions, or deletions have not been
made;
(5) a showing of the manner of the preservation of the
recording;
(6) identification of the speakers; and
(7) a showing that the testimony elicited was voluntarily made
without any kind of inducement.
Since the tape-records are prone to tampering, the time, place and
accuracy of the recording must be proved by a competent witness. It
is necessary that such evidence must be received with caution. The
court must be satisfied, beyond reasonable doubt that the record has
not been tampered with.
In 2R. v. Maqsud Ali [(1966) 1 QB 688 : (1965) 3 WLR 229 : (1965)
2 All ER 464 (CCA)] it was said (QB p. 701 D-E) that ―it would be
wrong to deny to the law of evidence advantages to be gained by new
techniques and new devices, provided the accuracy of the recording
can be proved and the voices recorded [are] properly identified….
Such evidence should always be regarded with some caution and
assessed in the light of all the circumstances of each case.‖

iii) Call Detail Records.


Whether the contradictions are so material as to set at naught the
entire case of the prosecution? Our reply to the above query is an
emphatic ‗no‘. It would be a hard nut to crack to find out a case which
is bereft of embellishment, exaggeration, contradictions and
inconsistencies. The said things are natural. Such contradictions and
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inconsistencies are bound to creep in with the passage of time. If the
witnesses are not tutored they would come out with a natural and
spontaneous version on their own. The two persons on being asked to
reproduce a particular incident which they have witnessed with their
own eyes would be unable to do so in like manner. Each one of them
will narrate the same in his own words, according to his own
perception and in proportion to his intelligence power of observation.

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PART II CRIMINAL PROCEDURE CODE

CHAPTER-I

FIRST INFORMATION REPORT.


(i) “Section 154 Cr.P.C.

154. Information in cognizable cases. Every information relating to


the commission of a cognizable offence if given orally to an officer
incharge of a police-station, shall be reduced to writing by him or
under his direction, and be read over to the informant, and every such
information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance
thereof shall be entered in a book to be kept by such officer in such
form as the [Provincial Government] may prescribe in this behalf.‖

(ii) Principal object.


The principal object of the first information report from the point of
view of the information is to set the criminal law in motion and from
the point of view of the investigating authorities is to obtain
information about the alleged criminal activity so as to be able to take
suitable steps to trace and bring to book the guilty.
―It is well settled that FIR is not an encyclopaedia of the facts
concerning the crime merely because of minutest details of
occurrence were not mentioned in the FIR the same cannot make the

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prosecution case doubtful. It is not necessary that minutest details
should be stated in the FIR. It is sufficient if a broad picture is
presented and the FIR contains the broad features. For lodging FIR, in
a criminal case and more particularly in a murder case, the stress must
be on prompt lodging of the FIR….‖

(iii) A vital and valuable piece of evidence not be


substantive piece of evidence.
The FIR in a criminal case is a vital and valuable piece of evidence
though may not be substantive piece of evidence. The object of
insisting upon prompt lodging of the FIR in respect of the commission
of an offence is to obtain early information regarding the
circumstances in which the crime was committed, the names of the
actual culprits and the part played by them as well as the names of the
eye-witnesses present at the scene of occurrence. If there is a delay in
lodging the FIR, it loses the advantage of spontaneity, danger creeps
in of the introduction of coloured version, exaggerated account or
concocted story as a result of large number of
consultations/deliberations. Undoubtedly, the promptness in lodging
the FIR is an assurance regarding truth of the informant's version. A
promptly lodged FIR reflects the first hand account of what has
actually happened, and who was responsible for the offence in
question.

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(iv) Effect of Delay.
The delay in lodging the FIR cannot be used as a ritualistic formula
for doubting the prosecution case and discarding the same solely on
the ground of delay. If the explanation offered is satisfactory and
there is no possibility of embellishment, the delay should not be
treated as fatal to the case of the prosecution.
When an FIR is lodged belatedly, it is a relevant fact of which the
court must take notice of, but the said fact has to be considered in the
light of other facts and circumstances of the case. It is obligatory on
the part of the court to consider whether the delay in lodging the
report adversely affects the case of the prosecution and it would
depend upon the matter of appreciation of evidence in totality.
When an FIR has been lodged in a belated manner, inference can
rightly follow that the prosecution story may not be true but equally
on the other side, if it is found that there is no delay in the recording
of the FIR, it does not mean that the prosecution story stands
immeasurably strengthened.

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CHAPTER-II

INVESTIGATION.
(i) “Section 156 Cr.P.C.

156. Investigation into cognizable cases. (1) Any officer incharge of


a police-station may, without the order of a Magistrate, investigate
any cognizable case which a Court having jurisdiction over the local
area within the limits of such station would have power to inquire into
or try under the provisions of Chapter XV relating to the place of
inquiry or trial.
(2) No proceeding of a police officer in any such case shall at any
stage be called in question on the ground that the case was one which
such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an
investigation as above mentioned.
[(4) Notwithstanding anything contained in Sub-Sections (1), (2) or
(3) no police-officer shall investigate an offence under Section 497 or
Section 498 of the Pakistan Penal Code, except upon a complaint
made by the husband of the woman, or in his absence, by some person
who had the care of such woman on his behalf at the time when such
offence was committed.]‖
Under the Code, investigation consists generally of the following
steps:-
(i) Proceeding to the spot,

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(ii) Ascertainment of the facts and circumstances of the case,
(iii) Discovery and arrest of the suspected offender,
(iv) Collection of evidence relating to the commission of the offence
which may consist of:-
(a) the examination of various persons (including the accused)
and the reduction of their statements into writing, if the
officer thinks fit,
(b) the search of places of seizure of things considered
necessary for the investigation and to be produced at the
trial, and
(iv) Formation of opinion as to whether on the material
collected there is a case to place the accused before a
Magistrate for trial and if so taking the necessary steps for
the same by the filing of a charge sheet under Section 173
of the Code of Criminal Procedure.
Whether defect or illegality in investigation vitiated the trial. The
provisions of Section 537 of the Code of Criminal Procedure.
―If, cognizance is in fact taken, on a police report vitiated by the
breach of a mandatory provision relating to investigation, there can be
no doubt that the result of the trial which follows it cannot be set aside
unless the illegality in the investigation can be shown to have brought
about a miscarriage of justice. That an illegality committed in the
course of investigation does not affect the competence and the
jurisdiction of the Court for trial is well settled as appears from the
1
cases in Prabhu v. Emperor (AIR (31) 1944 P.C. 73) and

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2
Lumbhardar Zutshi v. The King (AIR (37) 1950 P.C. 26). These no
doubt relate to the illegality of arrest in the course of investigation
while we are concerned in the present cases with the illegality with
reference to the machinery for the collection of the evidence. This
distinction may have a bearing on the question of prejudice or
miscarriage of justice, but both the cases clearly show that invalidity
of the investigation has no relation to the competence of the Court.
We are, therefore, clearly, also, of the opinion that where the
cognizance of the case has in fact been taken and the case has
proceeded to termination, the invalidity of the precedent investigation
does not vitiate the result, unless miscarriage of justice had been
caused thereby.‖
(ii) Irregularity in arrest has no bearing on the trial. In
a celebrated decision given by the Privy Council in 3Parbhu vs.
Emperor, AIR (31) 1944 Privy Council 73, Lord Macmillan repelled
the aforesaid contention as under:
―In their Lordships' view, the validity of the trial and conviction
of the appellant was not affected by any irregularity in his arrest.
When the appellant was presented for trial at Rohtak he had
been validly surrendered to the Court there by the Jind
authorities and so far as that Court was concerned everything
was regular and in order.‖
In 4Lumbhardar Zutshi and Another vs. The King, AIR (37) 1950
Privy Council 26, void investigation which led upto the trial was
conducted illegally.

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―Such a fault in procedure might have important consequences
but it could not in their Lordships‘ judgment deprive the Chief
Presidency Magistrate of his jurisdiction to try the appellants.‖

(iii) Defective Investigation.


It is well-nigh settled that even if the investigation is illegal or even
suspicious the rest of the evidence must be scrutinized independently
of the impact of it. The court must have predominance and pre-
eminence in criminal trials over the action taken by the investigation
officers. Criminal Justice should not be made a casualty for the
wrongs committed by the investigating officers in the case.

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CHAPTER-III

EXAMINATION OF WITNESS.
(i) “Section 161 Cr.P.C.

“161. Examination of witnesses by police. (1) Any police-officer


making an investigation under this Chapter [or any police-officer not
below such rank as the [Provincial Government] may, by general or
special order, prescribe in this behalf, acting on the requisition of such
officer], may examine orally any person supposed to be acquainted
with the facts and circumstances of the case.
(2) Such person shall be bound to answer all questions relating to
such case put to him by such officer, other than questions the answers
to which would have a tendency to expose him to a criminal charge or
to a penalty or forfeiture.
[(3) The police-officer may reduce into writing any statement made to
him in the course of an examination under this section, and if he does
so he shall make a separate record of the statement of each such
person whose statement he records.]‖

(ii) Purpose for which statements could be utilized.


The purpose for which statements under Section 161 Cr.P.C. could be
utilized, reference has to be made to Section 162 of the Cr.P.C. As per
the explanation to Section 162 of the Cr.P.C. ―an omission to state a
fact or circumstance in the statement referred to in Sub-Section (1)

Page - 1 -
may amount to contradiction if the same appears to be significant and
otherwise relevant having regard to the context in which such
omission occurs and whether any omission amounts to a contradiction
in the particular context shall be a question of fact.‖

―The discrepancies or the omissions have to be material ones


and then alone, they may amount to contradiction of some
serious consequence. Every omission cannot take the place of a
contradiction in law and therefore, be the foundation for
doubting the case of the prosecution. Minor contradictions,
inconsistencies or embellishments of trivial nature which do not
affect the core of the prosecution case should not be taken to be
a ground to reject the prosecution evidence in its entirety. It is
only when such omissions amount to a contradiction creating a
serious doubt about the truthfulness or creditworthiness of the
witness and other witnesses also make material improvements or
contradictions before the court in order to render the evidence
unacceptable, that the courts may not be in a position to safely
rely upon such evidence. Serious contradictions and omissions
which materially affect the case of the prosecution have to be
understood in clear contradistinction to mere marginal variations
in the statement of the witnesses. The prior may have effect in
law upon the evidentiary value of the prosecution case;
however, the latter would not adversely affect the case of the
prosecution.

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Another settled rule of appreciation of evidence is that the court
should not draw any conclusion by picking up an isolated
portion from the testimony of a witness without adverting to the
statement as a whole. Sometimes it may be feasible that
admission of a fact or circumstance by the witness is only to
clarify his statement or what has been placed on record. Where
it is a genuine attempt on the part of a witness to bring correct
facts by clarification on record, such statement must be seen in a
different light to a situation where the contradiction is of such a
nature that it impairs his evidence in its entirety.

In terms of the Explanation to Section 162 Cr.P.C. which deals


with an omission to state a fact or circumstance in the statement
referred to in Sub-Section (1), such omission may amount to
contradiction if the same appears to be significant and otherwise
relevant having regard to the context in which such omission
occurs and whether there is any omission which amounts to
contradiction in particular context shall be a question of fact. A
bare reading of this Explanation reveals that if a significant
omission is made in a statement of a witness under Section 161
Cr.P.C., the same may amount to contradiction and the question
whether it so amounts is a question of fact in each case.

The basic element which is unambiguously clear from the


Explanation to Section 162 Cr.P.C. is use of the expression ―may‖. To
put it aptly, it is not every omission or discrepancy that may amount

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to material contradiction so as to give the accused any advantage. If
the legislative intent was to the contra, then the legislature would have
used the expression ―shall‖ in place of the word ―may‖. The word
―may‖ introduces an element of discretion which has to be exercised
by the court of competent jurisdiction in accordance with law.
Furthermore, whether such omission, variation or discrepancy is a
material contradiction or not is again a question of fact which is to be
determined with reference to the facts of a given case. The concept of
contradiction in evidence under criminal jurisprudence, thus, cannot
be stated in any absolute terms and has to be construed liberally so as
to leave desirable discretion with the court to determine whether it is a
contradiction or material contradiction which renders the entire
evidence of the witness untrustworthy and affects the case of the
prosecution materially.‖

(iii) Effect of delay.


The legal position is well settled that mere delay in the examination of
a particular witness does not, as a rule of universal application, render
the prosecution case suspect.
Firstly, because the delay in the investigation itself may not benefit
the accused; secondly, because the investigating officer has explained
the reasons for delayed examination of the witnesses.
Unless the Investigating Officer is categorically asked as to why there
was delay in examination of the witnesses the defence cannot gain
any advantage therefrom.

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That the delay has been explained and though the investigating officer
was cross-examined at length, not even a suggestion was put to him as
to the reason for such delay and, thus, the accused cannot take any
benefit thereof at this stage.
These are the issues which are no more res integra. If the explanation
offered for the delayed examination of a particular witness is
plausible and acceptable and the Court accepts the same as plausible,
there is no reason to interfere with the conclusion arrived at by the
Courts. The mechanical rejection of the evidence on the sole ground
that it is that of an interested witness would inevitably relate to failure
of justice.
The delay in examination of witnesses is a variable factor. It would
depend upon a number of circumstances. For example, non-
availability of witnesses, the investigating officer being preoccupied
in serious matters, the investigating officer spending his time in
arresting the accused who are absconding.

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CHAPTER-IV

INQUEST REPORT.
(i) “Section 174 Cr.P.C.

“174. Police to inquire and report on suicide, etc. (1) The officer
incharge of a police-station or some other police-officer specially
empowered by the [Provincial Government] in that behalf, on
receiving information that a person:
(a) has committed suicide, or
(b) has been killed by another, or by an animal, or by
machinery, or by an accident, or
(c) has died under circumstances raising a reasonable
suspicion that some other person has committed an
offence,
shall immediately give intimation thereof to the nearest
Magistrate empowered to hold inquests, and, unless
otherwise directed by any rule prescribed by the
[Provincial Government], shall proceed to the place where
the body of such deceased person is, and there, in the
presence of two or more respectable inhabitants of the
neighborhood, shall make an investigation, and draw up a
report of the apparent cause of death, describing such
wounds, fractures, bruises and other marks of injury as
may be found on the body, and stating in what manner, or

Page - 1 -
by what weapon or instrument (if any), such marks appear
to have been inflicted.
(2) The report shall be signed by such police officer and other
persons, or by so many of them as concur therein, and shall be
forthwith forwarded to the [concerned] Magistrate.
(3) When there is any doubt regarding the cause of death, or when for
any other reason the police-officer considers it expedient so to do, he
shall, subject to such rules as the [Provincial Government] may
prescribe in this behalf, forward the body, with a view to its being
examined to the nearest Civil Surgeon, or other qualified medical man
appointed in this behalf by the [Provincial Government], if the state of
the weather and the distance admit of its being so forwarded without
risk of such putrefaction on the road as would render such
examination useless.
(4) * * * * * * *
[(5) The Magistrate of the first class are empowered to hold
inquests].‖
―So far as the inquest report is concerned, the same is prepared by the
police who are not experts like the doctors and therefore no such
weightage could be given to the inquest report. It is also settled law
that inquest report cannot be treated as a piece of admissible evidence.
One of the main grounds for acquitting the respondent-accused by the
High Court was alleged discrepancies in the aforesaid reports which
according to us is based on misreading of evidence and
misappreciation.‖

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(ii) The impact of discrepancies between the inquest
report and a post-mortem report:
―Inquest report and post mortem report cannot be termed to be
substantive evidence and any discrepancy occurring therein can
neither be termed to be fatal nor even a suspicious circumstance
which would warrant a benefit to the accused and the resultant
dismissal of the prosecution case. The contents of the inquest
report cannot be termed as evidence, but they can be looked into
to test the veracity of the witnesses. When an officer incharge of
Police Station receives information that a person had committed
suicide or has been killed or died under suspicious
circumstances, he shall inform the matter to the nearest
Magistrate to hold Inquest. A criminal case is registered on the
basis of information and investigation is commenced under
Section 157 of Cr.P.C. and the information is recorded under
Section 154 of Cr.P.C. and, thereafter, the inquest is held under
Section 174 Cr.P.C.

The proceedings under Section 174 Cr. P.C. have limited scope.
The object of the proceedings is merely to ascertain whether a
person has died in suspicious circumstances or an unnatural
death and if so, what is the apparent cause of the death. The
question regarding details as to how the deceased was assaulted
or who assaulted him or under what circumstances, he was
assaulted is foreign to the ambit and scope proceeding under

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Section 174. Neither in practice nor in law was it necessary for
the Police to mention these details in the Inquest Report.

This Court has consistently held that Inquest Report cannot be treated
as substantive evidence but may be utilized for contradicting the
witnesses of the Inquest...‖

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CHAPTER V

DEFECT IN CHARGE

“Section 225 Cr.PC.

Effect of errors. No error in stating either the offence or the


particulars required to be stated in the charge, and no omission to state
the offence or those particulars, shall be regarded at any stage of the
case as material, unless the accused was in fact misled by such error
or omission, and it has occasioned a failure of justice.‖
Illustrations
(a) A is charged under Section 242 of the Pakistan Penal Code, with
―having been in possession of counterfeit coin, having known at the
time when he became possessed thereof that such coin was
counterfeit‖, the word ―fraudulently‖ being omitted in the charge.
Unless it appears that A was in fact misled by this omission, the error
shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated
B is not set out in the charge, or is set out incorrectly. A defends
himself, call witnesses and gives his own account of the transaction.
The Court may infer from this that the omission to set out the manner
of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated
B is not set out in the charge. There were many transactions between

Page - 1 -
A and B, and A had no means of knowing to which of them the
charge referred, and offered no defence. The Court may infer from
such facts that the omission to set out the manner of the cheating was,
in the case, a material error.
(d) A is charged with the murder of Khoda Bakhsh on the 21st
January, 1882. In fact, the murdered person's name was Haider
Bakhsh, and the date of the murder was the 20th January, 1882. A
was never charged with any murder but one, and had heard the [trial],
which referred exclusively to the case of Haider Bakhsh. The Court
may infer from these facts that A was not misled and that the error in
the charge was immaterial.
(e) A was charged with murdering Haider Bakhsh on the 20th January,
1882 and Khuda Baksh (who tried to arrest him for that murder) on
the 21st January, 1882. When charged for the murder of Haider
Bakhsh, he was tried for the murder of Khoda Bakhsh. The witnesses
present in his defence were witnesses in the case of Haider Bakhsh.
The Court may infer from this that A was misled, and that the error
was material.
The legal position is that a defect in the frame of the charge is a mere
irregularity and does not affect the conviction unless the accused
shows that he has suffered substantial prejudice.
Sections 221 to 223 of the Code, which undoubtedly envisage a
formal written charge, set out what a charge must contain. A
perusal of them reveals the reasons why a charge is required. It
must set out the offence with which the accused is charged and

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if the law which creates the offence does not give it any specific
name, so much of the definition of the offence must be stated
―as to give the accused notice of the matter with which he is
charged‖. The charge must also contain such particulars of date,
time, place and person "as are reasonably sufficient to give the
accused notice of the matter with which he is charged‖; and
Section 223 says-
―When the nature of the case is such that the particulars
mentioned in Sections 221 and 222 do not give the
accused sufficient notice of the matter with which he is
charged, the charge shall also contain such particulars of
the manner in which the alleged offence was committed as
will be sufficient for that purpose.‖
It is clear to us that the object of the charge is not to introduce a
provision that goes to the root of jurisdiction as, for example, the
requirement of previous sanction under Section 197, but to enable the
accused to have a clear idea of what he is being tried for and of the
essential facts that he has to meet. But there are other ways of
conveying this information. The question is whether at sessions trials,
the necessary information must be conveyed in one way and one way
only, namely in a formal charge in order that the entire trial may not
be ipso facto vitiated because of an incurable illegality, or whether
that can be done in other and less formal ways, provided always that it
is in fact conveyed in a clear and unambiguous manner and in
circumstances that the court will regard as fair and in substantial, as

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opposed to purely technical, compliance with the requirements of the
Code. The law could have provided one way as easily as another, but
what it has chosen to do is set out in the following sections.
The marginal note to Section 225 is headed "Effect of errors" and the
section states that -
"No error in stating either the offence or the particulars require
to be stated in the charge, and no omission to state the offence or
those particulars, shall be regarded at any stage of the case as
material, unless the accused was in fact misled by such error or
omission, and it has occasioned a failure of justice".
Therefore, when there is a charge and there is either error or omission
in it or both, and whatever its nature, it is not to be regarded as
material unless two conditions are fulfilled both of which are matters
of fact : (1) the accused has in fact been misled by it and (2) it has
occasioned a failure of justice.
A question also arises as to whether a conviction under any other
provision, for which a charge has not been framed, is sustainable in
law. The issue is no longer res integra and has been considered by the
Court time and again. The accused must always be made aware of the
case against them so as to enable them to understand the defence that
they can lead. An accused can be convicted for an offence which is
minor than the one, he has been charged with, unless the accused
satisfies the Court that there has been a failure of justice by the non-
framing of a charge under a particular penal provision, and some
prejudice has been caused to the accused.

-4-
Unless the accused is able to establish that defect in framing the
charges has caused real prejudice to him and that he was not informed
as to what was the real case against him and that he could not defend
himself properly, no interference is required on mere technicalities.
Conviction order in fact is to be tested on the touchstone of prejudice
theory.
In unmistakable terms, Section 535 specifies that a finding or
sentence of a court shall not be set aside merely on the ground that a
charge was not framed or that charge was defective unless it has
occasioned in prejudice. Because of a mere defect in language or in
the narration or in form of the charge, the conviction would not be
rendered bad if accused has not been adversely affected thereby. If the
ingredients of the section are obvious or implicit, conviction in regard
thereto can be sustained irrespective of the fact that the said section
has not been mentioned.
A fair trial to the accused is a sine qua non in our criminal justice
system but at the same time procedural law contained in the Code of
Criminal Procedure is designed to further the ends of justice and not
to frustrate them by introduction of hyper-technicalities. Every case
must depend on its own merits and no straightjacket formula can be
applied; the essential and important aspect to be kept in mind is: has
omission to frame a specific charge resulted in prejudice to the
accused.

-5-
-6-
CHAPTER-VI

EVIDENCE FOR PROSECUTION, THE PARI MATERIA


PROVISIONS, ARE AS FOLLOWS:
(i) “Section 244 Cr.P.C. (Magistrate Trial)

244. Procedure when no such admission is made. (1) [If the


Magistrate does not convict the accused under the preceding section
or] if the accused does not make such admission, the Magistrate shall
proceed to hear the complainant (if any), and take all such evidence as
may be produced in support of the prosecution, and also to hear the
accused and take all such evidence as he produces in his defence:
[Provided that the Magistrate shall not be bound to hear any person as
a complainant in any case in which the complaint has been made by a
Court.]
[(2) The Magistrate may, if he thinks fit, on the application of the
complainant or accused, issue a summons to any witness directing
him to attend or to produce any document or other thing.]
(3) The Magistrate may, before summoning any witness on such
application, require that his reasonable expenses, incurred in attending
for the purposes of the trial, be deposited in Court[:
Provided that it shall not be necessary for the accused to deposit any
such expenses in Court in case where he is charged with an offence
punishable with imprisonment exceeding six months.]‖

Page - 1 -
(ii) “Section 265-F Cr.P.C. (Session’s Trial)
“265-F. Evidence for prosecution.(l) If the accused does not plead
guilty or the Court in its discretion does not convict him on his plea,
the Court shall proceed to hear the complainant (if any) and take all
such evidence as may be produced in support of the prosecution:
Provided that the Court shall not be bound to hear any person as
complainant in any case in which the complaint has been made by a
Court.
(2) The Court shall ascertain from the Public Prosecutor or, as the
case may be, from the complainant, the names of any persons likely to
be acquainted with the facts of the case and to be able to give
evidence for the prosecution, and shall summon such persons to give
evidence before it.
(3) The Court may refuse to summon any such witness, if it is of
opinion that such witness is being called for the purpose of vexation
or delay or defeating the ends of justice. Such ground shall be
recorded by the Court in writing.
(4) When the examination of the witnesses for the prosecution and the
examination (if any) of the accused are concluded, the accused shall
be asked whether he means to adduce evidence.
(5) If the accused puts in any written statement, the Court shall file it
with the record.
(6) If the accused, or any one of several accused, says that he means
to adduce evidence, the Court shall call on the accused to enter on his
defence and produce his evidence.

-2-
(7) If the accused or any one or several accused, after entering on his
defence, applies to the Court to issue any process for compelling the
attendance of any witness for examination or the production of any
document or other thing, the Court shall issue such process unless it
considers that the application is made for the purpose of vexation or
delay or defeating the ends of justice. Such ground shall be recorded
by the Court in writing.‖

(iii) Discretion of a prosecutor.


The scope of discretion of a prosecutor to decide which witnesses as
he would examine in order to unfold the case of the prosecution.

It is primarily for the prosecutor to decide which witnesses he should


examine in order to unfold his story. It is obvious that a prosecutor
must act fairly and honestly and must never adopt the device of
keeping back from the Court eye-witnesses only because their
evidence is likely to go against the prosecution case. The duty of the
prosecutor is to assist the Court in reaching a proper conclusion in
regard to the case which is brought before it for trial. It is no doubt
open to the prosecutor not to examine witnesses who, in his opinion,
have not witnessed the incident, but, normally he ought to examine all
the eye-witnesses in support of his case. It may be that if a large
number of persons have witnessed the incident, it would be open to
the prosecutor to make a selection of those witnesses, but the
selection must be made fairly and honestly and not with a view to
suppress inconvenient witnesses from the witness-box. If at the trial it

-3-
is shown that persons who had witnessed the incident have been
deliberately kept back, the Court may draw an inference against the
prosecution and may, in a proper case, regard the failure of the
prosecutor to examine the said witnesses as constituting a serious
infirmity in the proof of the prosecution case. In such a case, if the
ends of justice require, the Court may even examine such witnesses
by exercising its powers under Section 540 Code of Criminal
Procedure.

The powers of the Court under Section 540 Code of Criminal


Procedure can and ought to be exercised in the interests of justice
whenever the Court feels that the interests of justice so require, but
that does.

Privy Council in 11936 P.C. 169 (Stephen Seneviratne v. The King)


aptly sums up the binding legal position thus:

―The notion that there is an obligation on the prosecution to call all


available witnesses irrespective of considerations of number and of
reliability, or in other words, that a prosecution ought to discharge the
functions both of prosecution and defence is erroneous.

Prosecutor submitted an application to the trial court, for discharge of


these witnesses on the ground that they had been won over by the
defence, and consequently the prosecution did not went to examine
them as their witnesses. The defence Counsel disputed this assertion
of the Prosecutor. But he did not make any request for their
examination as court witnesses under Section 540 Code of Criminal
-4-
Procedure so that the defence might get an opportunity to cross-
examine them. It is thus too late in the day to argue that these
witnesses were withheld by the prosecution for any ulterior motive.‖

(iv) Is the prosecution obliged to examine all


witnesses cited by it.
―When the case reaches the stage envisaged in Section 265(F) of
the Code the Court shall ------------ "and take all such evidence
as may be produced in support of the prosecution." It is clear
from the said section that the Public Prosecutor is expected to
produce evidence "in support of the prosecution" and not in
derogation of the prosecution case. At the said stage the Public
Prosecutor would be in a position to take a decision as to which
among the persons cited are to be examined. If there are too
many witnesses on the same point the Public Prosecutor is at
liberty to choose two or some among them alone so that the time
of the Court can be saved from repetitious depositions on the
same factual aspects. That principle applies when there are too
many witnesses cited if they all had sustained injuries at the
occurrence. The Public Prosecutor in such cases is not obliged
to examine all the injured witnesses. If he is satisfied by
examining any two or three of them, it is open to him to inform
the Court that he does not propose to examine the remaining
persons in that category. This will help not only the prosecution
for relieving itself of the strain of adducing repetitive evidence

-5-
on the same point but also helps the Court considerably in
lessening the workload. Time has come to make every effort
possible to lessen the workload, particularly those Courts
crammed with cases, but without impairing the cause of justice
(of course subject to Article 17 of Qanun-e-Shahadat Order).

The situation in a case where the prosecution cited two


categories of witnesses to the occurrence, one consisting of
persons closely related to the victim and the other consisting of
witnesses who have no such relation, the Public Prosecutor's
duty to the Court may require him to produce witnesses from the
latter category also subject to his discretion to limit to one or
two among them. But if the Public Prosecutor got reliable
information that any one among that category would not support
the prosecution version he is free to state in Court about that fact
and skip that witness being examined as a prosecution witness.
It is open to the defence to cite him and examine him as defence
witness. The decision in this regard has to be taken by the Public
Prosecutor in a fair manner. He can interview the witness before
hand to enable him to know well in advance the stand which that
particular person would be adopting when examined as a
witness in Court.‖

-6-
CHAPTER-VII

EXAMINATION OF ACCUSED.
(i) “Section 342 Cr.P.C.

342. Power to examine the accused. (1) For the purpose of enabling
the accused to explain any circumstances appearing in the evidence
against him, the Court may, at any stage of any inquiry or trial
without previously warning the accused, put such questions to him as
the Court considers necessary, and shall, for the purpose aforesaid,
question him generally on the case after the witnesses for the
prosecution have been examined and before he is called on for his
defence.
(2) The accused shall not render himself liable to punishment by
refusing to answer such questions, or by giving false answers to them;
but the Court [....] may draw such inference from such refusal or
answer as it thinks just.
(3) The answers given by the accused may be taken into consideration
in such inquiry or trial, and put in evidence for or against him in any
other inquiry into, or trial for, any other offence which such answers
may tend to show he has committed.
[(4) Except as provided by Sub-Section (2) of Section 340, no oath
shall be administered to the accused.]‖
The statement under Section 342 of the Criminal Procedure Code.

Page - 1 -
(ii) requirement of law.
The need of law for examining the accused with reference to
incriminating circumstances appearing against him in prosecution
evidence is not for observance of a ritual in a trial, nor is it a mere
formality. It has a salutary purpose. It enables the Court to be apprised
of what the indicted person has to say about the circumstances pitted
against him by the prosecution. Answers to the questions may
sometimes be flat denial or outright repudiation of those
circumstances. In certain cases accused would offer some
explanations to incriminating circumstances. In very rare instances
accused may even admit or own incriminating circumstances adduced
against him. If an accused admits any incriminating circumstance
appearing in evidence against him there is no warrant that those
admissions should altogether be ignored merely on the ground that
such admissions were advanced as a defence strategy.

Sub-Section (3) of Section 342 of the Code contains necessary


support to the legal position that answers given by the accused during
such examination are intended to be considered by the Court. The
words ―may be taken into consideration in such enquiry or trial‖ in
Sub-Section (3) would amount to a legislative guideline for the Court
to give due weight to such answers, though it does not mean that such
answers could be made the sole basis of any finding.

Such answers of the accused can well be taken into consideration in


deciding whether the prosecution evidence can be relied on, and

-2-
whether the accused is liable to be convicted of the offences charged
against him.
The principle of law is that in a case of circumstantial evidence where
an accused offers false answer in his examination under Section 342
of the Code of Criminal Procedure against the established facts, that
can be counted as providing a missing link for completing the chain.

(iii) Impact of Evidence not being put to accused at the


time of recording his statement.
The provisions of Section 342 Cr.P.C make it obligatory for the court
to question the accused on the evidence and circumstances against
him so as to offer the accused an opportunity to explain the same. But,
it would not be enough for the accused to show that he has not been
questioned or examined on a particular circumstance, instead he must
show that such non-examination has actually and materially
prejudiced him and has resulted in the failure of justice. In other
words, in the event of an inadvertent omission on the part of the court
to question the accused on any incriminating circumstance can not
ipso facto vitiate the trial that some material prejudice was caused to
the accused by the omission of the court.
Mere omission to put an incriminating circumstance to an accused
person under Section 342 of Cr.PC would by itself not bar the
prosecution from using such circumstance. The defence has to show
something more.

-3-
-4-
CHAPTER-VIII

DEMEANOUR.
(i) “Section 363 Cr.P.C.

“Remarks respecting demeanour of witness. When a Sessions


Judge or Magistrate has recorded the evidence of a witness, he shall
also record such remarks (if any) as he thinks material respecting the
demeanour of such witness whilst under examination.‖

(ii) Demeanour of witnesses.


The demeanour of a witness plays very important role with regard to
credibility of a witness, i.e. the observation of the judge about conduct
and behaviour of the witness during his examination. The behaviour
and appearance of a witness in the witness box has to be noted by the
Judge on the issue of credibility.

(iii) What is Demeanour.


There is a remarkable difference between the demeanour of a witness
who is describing a scene or occurrence which he actually saw and
that of a witness who repeats from memory a story which has been
taught him. The former, while detailing what his eyes have seen
throws an unmistakable vitality into his narrative-his eyes are lit with
intelligence, his features are all in motion, his hands make
unconscious indications, no part of his body is wholly at rest and all
these combined together produce a series of pantomimic gestures

Page - 1 -
illustrative and corroborative of the details of his narrative. The latter,
on the other hand either stands perfectly motionless or is fidgety and
restless; his features are impassive: the pupil of the eye fixed: he
gazes at empty space, instead of watching the face of the judge or of
the examining advocate to see if he is understood; he hurries on with
his story lest he should lose the thread of it, and is impatient of
interruption; occasionally a he forgets his que, the dry white tongue is
thrust hurriedly out and as hurriedly withdrawn.
The behaviour of witnesses in the witness box may materially affect
their credit. The blush of nervousness or shame, gape of stupidity the
gesture of annoyance the hesitation to answer, and other
manifestations of a witness state of mind or emotion may affect the
weight which is given to his evidence.

(iv) Weight of Observation.


The observations regarding demeanour of witnesses are entitled to
great weight. The look or manner of a witness while in the witness
box, his hesitation and doubts or confidence and calmness and similar
facts are facts which only the trial judge is in a position to and is
expected to observe. When a Judge or Magistrate has recorded the
evidence of witness, he shall also record such remarks (if any) as he
thinks material respecting the demeanour of such witness while under
examination. The provisions of Section 363 of Code, makes it
mandatory that ―when a Sessions Judge or Magistrate has recorded
the evidence of a witness, he shall also record such remarks (if any) as
he thinks material respecting the demeanour of such witness while
-2-
under examination.‖ Whereas language of the provision of Order
XVIII Rule 12 of Code of Civil Procedure though does not make such
recording mandatory as its language speaks ―The court may record
such remarks as it thinks material respecting the demeanour of any
witness while under examination.‖
The Judges while recording the evidence of witness, also to record the
demeanour of such witness for two reasons:
(1) The appellate Court would be in a better position to evaluate the
finding if such remarks about demeanour is on record.
(2) The omission may not be material when the judgment is written
by the Judge just after the closure of the evidence and before his
recollection of the witness‘s demeanour in the box has been
dim. Now a days the judgments are being recorded after laps of
a considerable period of time and even by another Judge
therefore it would be advisable to record the demeanour even in
civil cases.
The observations by Lord Atkin in 1Seetha Lakshmi Ammal Vs.
Venkata Subramanian (AIR 1930 PC 170) is instructive. ―The
omission may be immaterial where a Judge writes his judgment a very
few days after the close of the evidence and before the recollection of
the witness‘s demeanour in the box has become dim.‖
A Judge, who observes the demeanour of the witnesses, when they are
being examined by counsel, has from his detached position, a much
more favourable opportunity of forming a just appreciation than a
judge who himself conduct the examination. If he takes the later

-3-
course, so to speak descends into arena and is liable to have his vision
clouded by the dust of conflict. Unconsciously he deprives himself of
the advantage of calm and dispassionate observation. The demeanour
of a witness is apt to be very different when he is being questioned by
the judge to what it is being questioned by the counsel.

-4-
INDEX
enzymes, - 10 -
A estoppel, - 2 -
expert report, - 7 -
Admiralty Act, 1896, - 13 - Extraneous reason, - 11 -
after considering the matters before it, - 5 - eyewitnesses, - 9 -, - 12 -, - 16 -, - 18 -, - 5 -, - 7 -, - 25 -, -
Autosomal STR, - 12 - 3-
autrefois convict, - 5 -, - 6 -
axe, - 3 -, - 7 -
F
B fact in issue, - 3 -, - 4 -, - 5 -, - 7 -, - 8 -, - 9 -, - 10 -, - 13 -, -
15 -, - 19 -, - 1 -, - 2 -, - 20 -, - 21 -
bankruptcy, - 9 - fair trial, - 1 -, - 2 -, - 5 -
bat, - 3 - fingerprint, - 10 -
benefit of doubt, - 3 -, - 4 -, - 5 -, - 3 - FIR, - 1 -, - 2 -, - 3 -
biological, - 10 -, - 11 - forensic, - 11 -
brick, - 3 - Forensic, - 2 -

C H
cardinal, - 5 - hammer, - 3 -
Chain of custody, - 10 - hearsay, - 2 -, - 4 -, - 5 -, - 6 -, - 8 -, - 10 -, - 11 -, - 15 -, - 16
Circumstances of the transaction, - 10 - -, - 18 -, - 1 -, - 14 -, - 22 -
circumstances of the transaction which resulted in his hybridization, - 10 -
death, - 6 -, - 1 -, - 2 -, - 8 -, - 9 -, - 11 -, - 12 -
circumstances which cause his death, - 12 -
I
circumstantial evidence, - 2 -, - 1 -, - 2 -, - 3 -, - 4 -, - 5 -, -
24 -, - 25 -, - 26 -, - 27 -, - 3 -, - 4 -, - 10 -, - 3 - identification parade, - 1 -, - 2 -, - 4 -, - 5 -, - 6 -
clinical-type, - 14 - in uno falsus in omnibus, - 5 -
cognisance, - 1 -
Collusion, - 30 - K
Competent Court, - 11 -
conjectures, - 2 -, - 5 - knob, - 3 -
Criminal Investigation, 1934 Ed. Pages 61-62, - 17 - Krishna Ram Das v. State, AIR 1964 ASSAM 53, - 10 -
criminal jurisprudence, - 5 -, - 6 -, - 7 -, - 4 -
cross-examination, II, VI, - 7 -, - 5 -, - 11 -, - 2 -, - 6 -, - 10 - L
, - 1 -, - 2 -, - 4 -, - 5 -, - 6 -, - 7 -, - 1 -, - 5 -
Land Acquisition Act, - 23 -
lathi, - 3 -
D
literally things done or things transacted, - 1 -
Derivative, - 4 -
detention, - 4 - M
direct evidence, - 2 -, - 11 -, - 4 -, - 1 -, - 5 -, - 26 -
discovery of a material object, - 3 - marriage, I, VI, - 20 -, - 13 -
discovery of fact, - 3 -, - 4 - material discrepancies, - 2 -
divorce, - 9 -, - 13 -, - 5 - Material Evidence, - 3 -
DNA, - 9 -, - 10 -, - 11 - may be true, - 5 -
Documentary Evidence, - 3 - must be true, - 5 -
dying declaration, - 21 -, - 22 -, - 1 -, - 2 -, - 3 -, - 4 -, - 5 -,
- 6 -, - 7 - N
no person shall be prosecuted and punished for the same
E offence more than once, - 6 -
end of litigation, - 2 -, - 3 -

Page - 1 -
O S
Oral Evidence, - 3 - second-hand evidence, - 4 -
stick, - 3 -
P STR‖ (Short Tandem Repeat) Analysis, - 12 -
sure conclusions, - 5 -
pantomimic gestures, - 1 - surrender its own judgment, - 6 -
patent, - 9 - suspicious, - 13 -, - 15 -, - 7 -, - 4 -, - 3 -
penalty, - 2 -, - 1 -
photographic method, - 9 -
T
police personnel, - 15 -
pragmatic approach, - 7 - teeth, - 8 -, - 9 -
prima facie, - 5 -, - 6 - twice punished for one and the same offence, - 2 -
proof beyond reasonable doubt, - 1 -, - 2 -, - 4 -, - 5 - twice vexed for the same cause, - 2 -, - 3 -

R U
Rameshwar Hembram v. State of W.B. 2002 Cal utrefois acquit, - 6 -
CrLR(Cal) 276, - 14 -
reasonable doubt, - 4 - W
res gesta, - 1 -
res gestae, - 1 -, - 2 -, - 3 -, - 4 -, - 5 -, - 6 -, - 7 -, - 10 -, - 11 Wills has in his book Circumstantial Evidence, - 27 -
-, - 14 -, - 15 -, - 16 -, - 18 -, - 22 -, - 23 -, - 10 - witness to the recovery, - 15 -
res judicata, - 1 -, - 2 -, - 4 -, - 5 -, - 7 -, - 15 -, - 19 -, - 22 -,
- 25 -, - 28 - Y
Y STR DNA, - 12 -, - 13 -, - 14 -

-2-
REFERENCES:
PART I
CHAPTER II
1
(1988) 4 SCC 302, State of U.P. v. Krishna Gopal
2
(1947) 2 All E.R. 372, Miller v. Ministers of Pensions
3
Bater v. Bater in (1950) 2 All.E.R. 458
4
Miller‟s case
5
Proof of Guilt by Glanville Williams

CHAPTER III
1
Law of Evidence by CD Field
2
Abdul Rahim v. The King Emperor, AIR 1946 PC 82

CHAPTER IV
1
Mushtaq Ahmed v. The State
2
Criminal Investigation, 1934 Ed. by Dr. Hans Gross
3
Jennison v. Baker (1972) 1 All E.R. 1006)

CHAPTER V
1
Oath Act
CHAPTER VI
1
Tahsildar Singh v. State of Uttar Pradesh [AIR 1959 SC 1012]

CHAPTER VII
1
Towells case (1850) 2C & K 309

Page - 1 -
CHAPTER VIII
Text Book “Law of Evidence”279 (1935) by John H. Wigmore
1

2
Black‟s Law Dictionary
3
Law of Evidence by Phipson
4
69th Report of the Law Commission of India
5
Law of Evidence (15th Edition) by Chief Justice M. Monir
6
Subramaniam v. Public Prosecutor, (1956) 1 WLR 965
7
Dr. Jai Nand v. Rex, 1949 A 291 : 1949 ALJ 60: 50 Cr LJ 498
8
Law of Evidence” (23rd Edition, 2010) by Ratanlal and Dhirajlal
9
Chain Mahto v. The Emperor (1906) 11 CWN 266, 270
10
Hadu v. State 1950 Cut 509: AIR 1951 Ori 53
11
Gujju Lall v. Fatteh Lall (1880) 6 CAL 171 (FB)
12
Krishna Ram Das v. State, AIR 1964 ASSAM 53
Babu Lal v. W.I.T. Ltd. AIR 1957 Cal 709; Kashmira Singh v. State,
13

1965 JK 37
14
Kridey Singh v. R., AIR 1946 Pat 40
15
Sawal v. State, AIR 1974 SCC 778
16
Badruddin v. State of Maharashtra 1981 CrLJ 729 (SC)
Law of Evidence by Chief Justice M. Monir (15th Edition Vol 1
17

Vasa Chandrasekhar Rao v. Ponna Satyanarayana, AIR 2000 SC


18

2138 : (2000) 6 SCC 286 : 2000 CrLJ 3175


19
Javed Alam v. State of Chattisgarh, 2009 (8) SCALE 68
20
Law of Evidence 14th Edn by Phipson
21
Dysart Peerage, 6 app Case P 516; Baleman v. Bailey, 5 TR 512

-2-
22
Malendra Pal v. State, 155 ALL 323
Jetha Ram v. State of Rajasthan, AIR 1979 SC 22 (para 1): (1978) 4
23

SCC 425
24
Law of Evidence by Sarkar
25
Arjun v State of U.P. 2003 (46) ACC 233 (ALL)
26
Rameshwar Hembram v. State of W.B. 2002 Cal CrLR(Cal) 276
Vinod Kumar Boderbhai v. State of Gujarat 1999 CriLJ 1650 (1662)
27

(Guj)
28
R. v. Lillyman [(1896) 2 QB 167 : (1895-99) All ER Rep 586
29
Teper v. R [(1952) 2 All ER 447]
Board in Subramaniam v. Public Prosecutor (1956) 1 WLR 965 at
30

970
31
(1971) 3 ALL ER 801 at 805, (1972) A.C. 378 Ratten v. R.
32
(1978) 66 Crl.App. R 252, R v. Nye and Loan
33
Law of Evidence by Phipson 16th Edition
34
Makin v. Attorney-General for New South Wales,Kennedy J.
35
Background Evidence Cases by Phipson
36
Pettman (unreported) (May 2, 1985, C.A.)
37
(2000) 4 SCC 515, State of U.P. v. Babu Ram
(2011) 3 SCC 654, Sheo Shankar Singh v. State of Jharkhand and
38

Anr.
39
Circumstantial Evidence by Wills
40
(2011) 12 SCC 554, Amitava Banerjee v. State of West Bengal
41
(1972) 4 SCC 142, Udaipal Singh v. State of U.P.
42
(1999) 4 SCC 370 State of H.P. v. Jeet Singh
-3-
43
R. v. Palmer (Shorthand Report at p. 308 CCC May 1856
44
AIR 1955 SC 807, Atley V. State of UP

CHAPTER XII
1
AIR 1946 Sind 43, Ismail v. Emperor
2
State v. Bashir & others (PLD 1997 SC 408)

CHAPTER XIII

1
Meesala Ramakrishan Vs. State of A.P. (1994) 4 SCC 182
2
Abrar Vs. State of Uttar Pradesh (2011) 2 SCC 750
3
Khuhal Rao v. State of Bombay (AIR 1958 SC 22)
4
Laxman v. State of Maharashtra (2002) 6 SCC 710
5
Pakala Narayana Swami v. King Emperor 1939 AIR PC 47
6
Sooraj v. State, 1994 Cri LJ 1155, 1162 (Ker)

CHAPTER XIV
1
Sitaram v. Amir Begam (ILR 8 All. 324)
2
Succession Act, 1925
3
Letters Patent and the Colonial Courts of Admiralty Act, 1896
4
Insolvency (Karachi Division) Act III of 1909
5
Provincial Insolvency Act (Act V of 1920)
6
Law of Evidence by Taylor
7
Land Acquisition Act

-4-
CHAPTER XV
1
Forensic Medicine and Toxicology by J.B. Mukherjee
2
Nariman, J. in Queen v. Ahmed Ally, (1869) 11 Sutherland WR Cr 25
3
Medical Jurisprudence and Toxicology (Law, Practice and
Procedure) by Dr. K.S. Narayan Reddy, Third Edition, 2010

CHAPTER XVI
1
Browne v. Dunn, (1893) 6 R 67
2
R v Hart (1932) 23 Cr.App.R 202
3
R. (Wilkinson) v. Director of Public Prosecutions 167 J.P. 229, QBD
4
Law of Evidence 17th Edition by Sarkar
5
Flanagan v. Fahy, 1918, 2 1R 361
6
388-89 CA: Browne v. Dunn
7
Odgers„ Pleading, 13th Ed pg 261
8
Powell 9th Ed p. 531
9
Wig Vol.2 para 1371
10
Law of Evidence by Phipson 11th Edition
11
Chunilal v. H.F. Ins Co., A 1958 Pu 440
12
Babulal v. Caltex (India) Ltd., A 1967 C 205
13
Carapiet v. Derderiem, A 1961 C 359
14
Browne v. Dunn, 6 R 67, 76-7
15
Sachindra v. Nilima, A 1970 C 38, 63
16
Bhag Kaur v. Piara Singh, 1999 (1) PLJR 306 (P &H)

-5-
State of Himachal Pradesh v. Thakur Dass, 1983 CrLJ 1694, 1701
17

(HP) : (1983) 10 Cri LT 370


18
Motilal v. State of Madhya Pradesh, 1990 CrLJ NOC 125 MP
19
Browne v. Dunn, Sup; (quoted in Sukhraji v. STC, A 1966 C 620)
20
(2012) 4 SCC 327, Bhajju @ Karan Singh v. State of M.P.

CHAPTER XVII
1
Section 1404 of Law of Evidence by Tayllor
2
Powell 9th Ed pp. 528-29
3
Section 643 of Law of Evidence by Best
4
Section 642 of Law of Evidence by Best
5
Acerro v. Petroni, 1 Stark 100
6
Lawdon v. L, 5 IR CLR 27
7
Section 1405 of Law of Evidence by Tayllor
8
Barindra v R, 37C 467 14 CWN 114

CHAPTER XVIII
1
American Jurisprudence 2d (Vol. 29)
2
R. v. Maqsud Ali [(1966) 1 QB 688 : (1965) 3 WLR 229 : (1965) 2
All ER 464 (CCA)]

PART II
CHAPTER II
1
Prabhu v. Emperor (AIR (31) 1944 P.C. 73)
2
Lumbhardar Zutshi v. The King (AIR (37) 1950 P.C. 26)
3
Parbhu vs. Emperor, AIR (31) 1944 Privy Council 73

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4
Lumbhardar Zutshi and Another vs. The King, AIR (37) 1950

CHAPTER VI
1
1936 P.C. 169 (Stephen Seneviratne v. The King)

CHAPTER VIII
1
Seetha Lakshmi Ammal Vs. Venkata Subramanian (AIR 1930 PC
170)

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