2021 LHC 1163
Last seen evidence is a weak type of evidence which is procured at any time during the investigation when direct evidence is not available to the prosecution.
Wajtakkar is a week type of evidence and is not believable in absence of independent corroborative piece of evidence.
Other type of evidence in this case is of informal admission which in our system is known as extra judicial confession, which means an out of court statement which is adverse to the case of the person making it. The reason that admissions are admissible by way of exception to the hearsay rule is that it is thought that people rarely say things adverse to themselves unless those things are true. Illustration (a) to Article 119 of Qanun-e-Shahadat Order, 1984 put burden on the prosecution to prove the extra judicial confession made by the accused to a third party and such burden requires higher degree of probability particularly when case is of circumstantial evidence.
Though Article 19 of Qanun-e-Shahadat Order, 1984 supports the admissibility of circumstantial evidence as Res gestae, a form of an exception to hearsay; Res gestae means ‘part of the matter’ and has evolved as an umbrella term referring, in general terms, to statements which are so bound up with a particular transaction as to form an important part of that transaction. In other words, the evidence must have such obvious relevance in relation to other evidence that it needs to be admitted in order to ‘complete the picture’. This vague concept or type of inadmissible evidence has found its place in the law of evidence in the form of admissible evidence only if it qualifies the following characteristics;
1. Spontaneous exclamation, which means, person involved, whether a victim or a witness, says something instinctively which is seen as intrinsic to the event in question. The requirements here are contemporaneity with the event and absence of concoction. If the person has had time to think about what he has seen or about what has happened, there is a risk that the statement has lost its spontaneity, it is no longer unpremeditated.
2. Contemporaneous physical condition; which means person victim of assault or in a condition has personally present and informed the witness about tragedy or misdeeds committed by the alleged accused.
3. Present intention; if the victim before the occurrence has posted the intention of accused to the witness about the conduct of the alleged accused.
4. Statement accompanying an act; a statement is also admissible as part of the res gestae if it contemporaneously accompanies and explains the act of person making it. The act and statement must be inextricably linked.
It is settled by now that one tainted piece of evidence could not corroborate another piece of tainted evidence because if this is allowed to be done then very necessity of corroboration would be frustrated.
Murder Reference=2304141.290-15
STATE VS RIZWAN AKHTAR RAZI BAWA SO MANZOOR AHMED 2- HABIB KHAN TAFORI SO JAMAL KHA
Mr. Justice Muhammad Amjad Rafiq 18-05-2021
2021 LHC 1163
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