فوجداری مقدمات میں "واقعاتی شہادت" کے موضوع پر لاہور ہائیکورٹ کا نہایت معلوماتی فیصلہ۔

 اس فیصلہ میں واقعاتی شہادت کی تعریف، رہنما اصول،قانونی تقاضاجات وغیرہ پر انتہائی عالمانہ بحث کی گئی ھے۔اور ساتھ ہی اس حوالے سے قرآنی آیات اور اعلی عدالتوں کے تقریبا تمام سابقہ فیصلہ جات کا بھی حوالہ دیا گیا ھے

"Reliable" and "Credible" evidence though both terms are sometimes used interchangeably but there is delicate difference between the two. Reliability always depends upon capacity of a witness to depose, legality of processes and competency, whereas credibility touches the character of a witness in relation to any fact in issue or relevant fact. Any violations of the legally acceptable or mandated process of collection/recording may lead to it’s becoming unreliable. Witnesses may be unreliable because of various factors such as old age, inability to remember past events, relationship with the victims and/or the complainant; any likely motives for the commission of perjury, such as financial gain, duress, past history of witnesses, lack of requisite knowledge or experience etc. Both reliability and credibility of evidence is locus in a case of direct or circumstantial evidence for a wellreasoned decision in a case by the court.

It is trite that conviction can be earned on the basis of circumstantial evidence but it must confirm to standards and principles of evidence; therefore, what implies circumstantial evidence and what are the standards of such evidence in the light of law and principles of evidence, it is highlighted for reference as under;

Circumstantial evidence means the evidence afforded not by the direct testimony of an eye-witness to the fact to be proved, out by the bearing upon that fact or other and subsidiary facts which are relied upon as inconsistent with any result other than the truth of the principal fact.

The leading rules of circumstantial evidence are the followings;

1) The facts alleged as the basis of any inference must be clearly proved and indubitably connected with the factum probandum.

2) The burden of proof is always on the party who asserts the existence of any act which infers legal accountability.

3) The corpus delicti must be clearly proved before any effect is attached to circumstances supposed to be inculpatory of a particular individual.

4) The best evidence must be adduced which the nature of the case demands.

5) Evidence ought to be received with distrust, wherever any considerable time has elapsed since the commission of alleged offence.

6) In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable explanation upon any other reasonable hypothesis than that of his guilt.

7) If there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted. [An essay on the principles of Circumstantial evidence by William Wills. T. & J. W. Johnson & company, 1857]

Circumstantial evidence is evidence of relevant facts and contrast with direct evidence; it may take the form of oral or documentary evidence including admissible hearsay or real evidence. It is no derogation of evidence to say that it is circumstantial.

Its importance lies in its potential for proving a variety of different relevant facts all of which point to same conclusion, as when it is sought to establish, that an accused committed murder, it must be proved by evidence of his preparation, motive and opportunity for its commission together with evidence of the discovery of a weapon, capable of having caused the injuries sustained by the victim, buried in the accused’s back garden and bearing his finger prints.

Circumstantial evidence, it has been said, ‘works by cumulatively, in geometrical progression, eliminating other possibilities’. It has been linked to a rope comprised of several cords: One strand of the cord might be insufficient to sustain the weight, but three strand together may be quite of sufficient strength. There may be a combination of circumstances, no one of which may raise reasonable conviction or more than a suspicion; but the three taken together may create a conclusion of guilt with as much certainty as human affair can require or admit it. The circumstances in which a fact may be said to be relevant to a fact in issue, in the sense that the existence of the former gives rise to an inference as to the existence or non-existence of the latter, are many and various. Certain types of circumstantial evidence arise so frequently that they have been referred to as ‘presumptions of fact’ or ‘provisional presumptions’ such as the presumptions of intention, guilty knowledge, continuance of life and seaworthiness etc. Another type of circumstantial evidence is evidence of facts which are so closely associated in time, place and circumstances with some transaction which is in issue and they can be said to form a part of that transaction. such facts, referred to as facts forming part of the res gestae are more conveniently can be explored in Chapter-III of Qanun-e-Shahadat Order, 1984. Res gestae doctrine is mainly connected with the admissibility of statements of fact as evidence of the truth of their contents by way of common-law exceptions to the hearsay rule and has been described, not unfairly, in terms of a ‘collection of fact situations’ so confusing in its scope as almost to demand that a reader cease thinking before he go mad’!

The following examples of circumstantial evidence are less demanding and more typical:-

Motive: in an ordinary prosecution for murder one can prove previous acts or words of the accused to show that he entertained feelings of enmity towards the deceased, and this is evidence not merely of malicious mind with which he killed the deceased, but of the fact he killed him, it is more probable that men are killed by those that have some motive for killing them than by those who have not.

Plans and Preparatory acts: facts which tend to suggest that a person made plans or other preparations for the performance of a particular act are relevant to question whether he subsequently performed that act. Thus, evidence may be given of the purchase by an alleged murderer of poison, or as the case may be, of gun or dagger.

Capacity: Evidence of a person’s mental or physical capacity or incapacity to do a particular act has an obvious relevance to the question whether he in fact performed it. Opportunity: circumstantial evidence of opportunity or lack of opportunity is evidence of the fact that a person was present or absent at the time and place of some act allegedly performed by him, like a plea of alibi.

Identity: circumstantial evidence of identity often takes a form of expert testimony that the fingerprints 6of the accused or samples taken from his body match those discovered on or taken from some material object at the scene of the crime or the victim of the offence in question .

Identity may also be established by the evidence that the accused present and the criminal share the same name, the same physical idiosyncrasy, for example left-handedness, the same style of hand writing or same particular manner of expression in speech or writing.

Continuance: the fact that a certain act or event was taking place at one point in time may justify the inference that it was also taking place at some prior or subsequent point of time, thus evidence of the speed at which someone was driving at a particular point in time may be given to show the speed at which he was likely to have been driving a few moments earlier or later.

Failure to give evidence: although in a criminal case, absence of accused from the witness box should not be equated with guilt but an adverse inference may be drawn in cases where the uncontested or clearly established facts point so strongly to the guilt of the accused as to call for some explanation.

Failure to provide evidence: where an accused has refused without good cause to the taking from him of an intimate body sample, the court determining whether he is guilty of the offence charge may draw such inferences from the refusal as appear proper.

Standards of comparison: in cases where it is necessary to decide whether a person’s conduct meets some objective standard of behaviour, evidence of what other person would do in the same circumstances is admissible as a standard of comparison. Though this principle is more likely for civil cases yet a flow of natural behaviour in a certain circumstance can also be the subject in criminal cases on the basis of inferences or observation of the court. If a dead body is buried in the house of any person, unusual activity or change at the place of burial can easily be observed if he is not the accused. likewise foul smell element or outbreak of germs are the factors which in the ordinary course of nature can easily be monitored and natural behaviour is to report that suspicious activity to police; not reporting to police is an unusual behaviour that indicates a guilty mind.

Murder Reference
55-18
STATE VS
MUHAMMAD SHAHID ETC
Mr. Justice Muhammad Amjad Rafiq
25-10-2022
2022 LHC 7641