EVIDENCE & PROOF
By
MIAN ALI HAIDER
L.L.B., L.L.M. (CUM LAUDE) U.K.
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SESSION TRAIL
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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
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PROOF & EVIDENCE
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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.
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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
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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)
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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
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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
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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.
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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”
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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”
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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
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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”
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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?
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Reading Material
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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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