Evidence & Proof

EVIDENCE & PROOF By

MIAN ALI HAIDER L.L.B., L.L.M. (CUM LAUDE) U.K. 1

SESSION TRAIL • • • • • • • • • • • • • • •

PROOF & EVIDENCE ORAL EVIDENCE PROOF OF FACTS BY ORAL EVIDENCE ORAL EVIDENCE MUST BE DIREct 1ST STAGE OF ORAL EVIDENCE COMPETENCY AND COMPELLABILITY CRDIBILITY WITNESS NOT EXCUSED FROM ANSWERING ON GROUND THAT ANSWER WILL CRIMINATE CROSS REFERENCE SECTION 244 AND 265 F CR.P.C. EXCEPTIONS DEMEANOR OF A WITNESS, SECTION 363 CR.P.C. CATEGORIES OF ORAL EVIDENCE CORROBORATION ACCOMPLICE EVIDENCE 2

PROOF & EVIDENCE • • • •

Evidence Proof Proof merely marks the effect of evidence; Suggestions in cross – examination are not evidence; • Chiragh – 1998 SCMR 1847

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ORAL EVIDENCE • PERSONS COMPETENT TO BE A WITNESS • 17. Competence and number of witnesses: (1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance With the injunctions of Islam as laid down in the Holy Qur'an and Sunnah:" • (2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law: — • FINANCIAL OBLIGATION • (a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly ; and • (b) in all other matters, the Court may accept, or act on the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant. 4

ORAL EVIDENCE • 70. Proof of facts by oral evidence • 71. Oral evidence must be direct – Must be direct – Not hearsay – If a person is dead, not found, incapable • Then ?

– Concept of “shahada ala al-shahadah” – Except ? – Hadood 5

1st Stage Of Oral Evidence • Oaths Act, 1873 • 5. Oaths or affirmations to be made by • 6. Oath by a Muslim or by a non-Muslim who has no objection. • Oath to accused, Section 5 of Oaths Act and Section 340 (2) 6

COMPETENCY & COMPELLABILITY • 15. WITNESS NOT EXCUSED FROM ANSWERING ON GROUND THAT ANSWER WILL CRIMINATE: (GR) • A witness shall not be excused from answering any Question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceedings, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind: – Provided that no such answer, which a witness shall be compelled to give shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

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COMPETENCY & COMPELLABILITY CROSS REFERENCE Section 244 and 265 F Cr.P.C. EXCEPTIONS:4 Judges and Magistrates 5 Communications during marriage 6 Evidence as to affairs of State 7 Official communications 8 Information as to commission of offences 9 Professional communications 12 Confidential communications with legal advisers

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Competency & Compellability • law pertaining to competence governs the ability of a witness to give evidence at trial • It determines whether or not he can be ‘heard’ by the court. As will be seen, that regulating compellability governs whether the same witness can be forced to testify, even if he does not wish to do so, in the sense that he will be punished if he does not appear to give evidence. • Historically, at common law, many groups of witnesses were deemed not to be competent to give evidence, and so could not testify, even if they could provide potentially important information. • including: – atheists, convicted felons, and ‘interested’ parties – to both civil and criminal litigation (ie the litigants themselves). – Additionally, spouses could not normally give evidence for or against each other. A variety of reasons lay behind this rather restrictive situation 9

CREDIBILITY OF A WITNESS • Is not a matter of law • Demeanor of a witness, Section 363 Cr.P.C. • falsus in uno falsus in omnibus (False in one thing, false in everything) • Not applicable in Pakistan • CJ Muhammed Munir “where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances……” • “Separating the grain from the chaff” applied as sure test 10

CATEGORIES OF ORAL EVIDENCE • Wholly reliable; • Wholly unreliable; and • Partly reliable, partly not reliable 1. Conviction in the first category may safely be sustained on uncorroborated testimony 2. Even strongest corroborative evidence may not rehabilitate such evidence 3. Conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source. 11

CORROBORATION • Not a technical term of art but dictionary word “by itself means no more than evidence tending to confirm other evidence” • Lord Hailsham “ when in ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to a particular matte; the better it fits in the more one is inclined to believe it. The doubtful statement is corroborated to a greater or lesser extent by the other statement or circumstances with which it fits in”

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CORROBORATION • Lord Reid “ corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness’s testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to or by witness who is otherwise to be believed. If a witness’s testimony falls of its own inanition the question of his needing, or being capable of giving, corroboration does not arise” 13

CORROBORATION

• Lord Hailsham “what I said in Kilbourne was not that to give or require corroboration a witness must be believed without doubt. What is said, and what I meant, was that unless a witnesses evidence was intrinsically credible, he could neither afford corroboration nor be thought to require it. In such cases, the witnesses evidence is rejected before the question of corroboration arises. Ofcourse, a conviction in such a case can sometimes result if, notwithstanding the unreliable testimony, the independent evidence is strong enough. But this because the independent evidence has proved the case independently of the unreliable witness, and not because the unreliable witness is corroborated” 14

CORROBORATION IN CASE OF INTERESTED WITNESS’S • Niaz – PLD 1960 SC 387 • “whenever interested person claiming to be eye witness of an occurrence charge person against whome they have some motive for false implication, with the commission of offence”????? – Whether in fact they saw the occurrence and were in a position to identify the culprit? • If there be no reasons to doubt that they infact witnessed the occurrence and were in a position to identify the culprit – Whether they can be relied upon for convicting the accused without corroboration • What appears from the independent evidence or circumstances not open to doubt to be the true number of culprits their evidence may, in the absence of anything making it unsafe to do so be accepted without corroboration 15

Corroboration in case of interested witness’s • “there may be an interested person whom the court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty, the court will in the case of an ordinary interested witness look for some circumstances that gives sufficient support to his statement so as to create that degree or probability which can be made the basis of conviction. This is what is meant by saying that statement of an interested witness ordinarily needs corroboration” 16

Corroboration in case of interested witness’s • Classic Standards: • Asadullah v. Muhammed Ali • “The LHCL considered ocular account in isolation from corroborative evidence” • Disapproving this and held that: – “The object of corroborative evidence is to test the veracity of the ocular evidence. Both have, therefore, to be read together and not in isolation as the learned judges did in the opcit case. Indeed it would be anamolous to hold that the ocular evidence should be appraised on its own merits without reference to the corroborative evidence…”

• “what would be the use of corroborative evidence which cannot by itself be the basis of conviction”

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ACCOMPLICE EVIDENCE • 16. ACCOMPLICE; An accomplice shall be a competent witness against an accused person, except in the case of an offence punishable with hadd and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. • 129. 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. Illustration (b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars ; • Influence of Islamic Law and the resulting change? 18

Reading Material • • • • • • • • • • • • • • •

Chiragh – 1998 SCMR 1847 Harmony Shipping – (1979) 3 All ER 177, 180 Ghulam Muhammad – PLD 1951 Lah. 66 Ghulam Sikandar – PLD 1985 SC 11, 23 Muhammad Sher – PLD 1954 FC 84 Muhammad Iqbal – 1996 SCMR 908; Kilbourne (1973) 1 All ER 440 Irshad Ahmed – 1990 P.Cr. LJ 374, 383; PLD 1988 Lah. 149 Niaz – PLD 1960 SC 387 Nazir – PLD 1962 SC 269 Turnbull (1976) 3 All ER 549; Scott vs. Queen (1989) AC 1242; Muhammad Arshad – PLD 1995 SC 475 Farman Hussain PLD 1995 SC 1;

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