In a criminal case, the burden of proof is on the prosecution and article 122 of the Qanun-e-Shahadat, 1984 is certainly not intended to relieve it of that duty.

 2023 YLR 585

In a criminal case, the burden of proof is on the prosecution and article 122 of the Qanun-e-Shahadat, 1984 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. If the article was to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. The article 122 of the Qanun-e-Shahadat, 1984 cannot be used to undermine the well-established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts. Throughout the web of the Law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to any statutory exception. No matter what the charge, the principle that the prosecution must prove the guilt of the prisoner is the law and no attempt to whittle it down can be entertained.

An accused person cannot be convicted merely because he did not explain the circumstances in which the deceased had lost his life.

On a conceptual plain, Article 117 of the Qanun-e-Shahadat, 1984 enshrines the foundational principle of our criminal justice system, whereby the accused is presumed to be innocent unless proved otherwise. Accordingly, the burden is placed on the prosecution to prove beyond doubt the guilt of the accused which burden can never be shifted to the accused, unless the legislature by express terms commands otherwise. It is only when the prosecution is able to discharge the burden of proof by establishing the elements of the offence, which are sufficient to bring home the guilt of the accused then, the burden is shifted upon the accused, inter alia, under Article 122 of the Qanun-e-Shahadat, 1984, to produce evidence of facts, which are especially in his exclusive knowledge, and practically impossible for the prosecution to prove, to avoid conviction.

It has to be kept in mind that Article 122 of the Qanun-e-Shahadat, 1984 comes into play only when the prosecution has proved the guilt of the accused by producing sufficient evidence, except the facts referred in Article 122 Qanun-e-Shahadat, 1984, leading to the inescapable conclusion that the offence was committed by the accused. Then, the burden is on the accused not to prove his innocence, but only to produce evidence enough to create doubts in the prosecution's case.

The term dying declaration, generally, stands for the statement of a person who is in expectation of his death and relates to the causes of his death. Such a statement is admissible in evidence though its maker does not appear in the witness box so as to provide an opportunity of cross-examination to an accused facing the charge of his murder. The admissibility of the dying declaration is an exception to the general rule which makes inadmissible any hearsay evidence. Dying declaration can be made the basis for awarding conviction provided it is free from the menace of prompting and tutoring and is proved to have been made by none other than the deceased himself. The paramount reason for attaching importance and credibility to such a statement is the presumption that a dying person seldom lies. For the recording of dying declaration no hard and fast rules are laid down, however, a glean through the provisions of the Police Rules, 1934 reveals that a procedure and brief guidelines are provided in chapter-25, Rule 21.

Such a statement is to be recorded either by a Magistrate or in the presence of a gazetted Police Officer and in the absence thereof in front of two or more unconcerned reliable witnesses. However, if neither of the above-mentioned persons is available, only then such a statement can be recorded in the presence of two or more police officers.