Under Article 38 of the Qanun-e-Shahadat Order, 1984 no confession of an accused made before a police officer can be proved against him. Likewise, Article 39 of Qanun-e-Shahadat Order, 1984 bars the proving of a confession made in the police custody. The combined effect of both these articles is to the effect that confession of an accused made before a police officer, either in the custody or otherwise, is inadmissible. Article 40 of Qanun-e-Shahadat Order, 1984 provides an exception to the rule embedded in Articles 38 & 39. According to the exception contemplated in Article 40 of Qanun-e-Shahadat Order, 1984, an incriminating fact discovered in consequence of an information provided by an accused while in the custody of a police officer can still be proved against him. For the clarity of proposition, we feel it essential to have a look upon the phraseology of Article 40.
Murder Reference
55-19
THE STATE VS NADEEM SHAH
2024 YLR 1127
(i) In pursuance of information so provided by the accused some fact not previously known to anyone be discovered;
(ii) The discovered fact must be perceivable through senses;
(iii) The fact so discovered must be distinctly related with the fact in issue.
While taking advantage of the case, we intend to clarify that only such portion of the statement of an accused can be brought on record under Article 40 which relates to the discovery of a fact and not his confession about the crime. Article 40 vividly is an enabling provision whereby prosecution is permitted to bring on record only the portion of a statement or confession made by the accused in the police custody through which some fact having relevancy with the crime is discovered. In the instant case, through the evidence of Dilawar (PW.9) and Abid Ali ASI (PW.11), the statement of appellant was brought on record whereby he confessed to have sodomized the victim before strangulating him to death. Needless to mention here that since this portion was purely a confession, thus could not be brought on record. The prosecution, through necessary implication of Article 40, could only bring on record the disclosure of the appellant whereby he volunteered to lead the police and witnesses towards the recovery of dead body as this was a fact discovered through such statement.
In order to prove during trial that the accused actually made a disclosure and subsequently led to the recovery of some fact, it is essential that a memo of his disclosure be prepared. Only the preparation of the memo testified by the witnesses will prove in subsequent trial that the fact was discovered in consequence of a lead and pointing out of the accused.
Murder Reference
55-19
THE STATE VS NADEEM SHAH
2024 YLR 1127
The DNA report in unseen incidents of homicide is often referred as sufficient to lift veil from the identity of the culprit but such concept qualifies for acceptance subject to various restrictions and limitations. The acceptance of DNA report in legal system is based on the doctrine of law of individuality which is defined by Dr.B.R. Sharma in his book Forensic Science in Criminal Investigation and Trials in the manner that every object, natural or man-made, has an individuality, which is not duplicated in any other object and it is unique, neither the nature has duplicated itself nor can man. The law of individuality has been verified in various fields, the most important out of which pertains to finger prints which are never found to be identical of different persons.
Probative and corroborative value of DNA evidence.
While considering the DNA evidence, we must not forget that burden to prove the guilt of an accused upon the prosecution is much heavier than the onus of accused to disprove the charge. For securing conviction of an accused, the prosecution is legally obliged to prove its case without scintilla of any doubt. On the contrary, the accused can get rid of the charge framed against him by creating a doubt about his involvement in the crime. In this backdrop, it can be elucidated that DNA evidence can only be used by the prosecution as corroboratory evidence, whereas it has a probative value for disproving the charge. Same is the principle.
The failure to prove proper sampling of internal anal swabs,
Murder Reference
55-19
THE STATE VS NADEEM SHAH
2024 YLR 1127
The crime of homicide is often committed in public view and on occasions at isolated places. In the latter category of cases, the assassin endeavours by design not to leave behind traces of his involvement. The guilt of a delinquent in such cases of homicide can still be proved through circumstantial evidence, if available. The circumstantial evidence pertains to the facts or events from the scrutiny of which the guilt or innocence of an accused can be extracted. For handing down a guilty verdict in a case of homicide, each and every incriminating circumstance forming the chain of circumstantial evidence must be clearly established so as to form an irresistible conclusion about the involvement of accused in the crime. Each component of the circumstantial evidence is required to be tested on reasoning through application of judicious mind so as to ascertain that it is not hit by any legal provision making it inadmissible. Above all, for awarding conviction such incriminating circumstances must so strongly be interwoven with each other as to make an unbroken chain, the one end of which must be touching the corpse and the other proving the guilt of accused.
Murder Reference
55-19
THE STATE VS NADEEM SHAH
2024 YLR 1127
Circumstantial evidence for proving the guilt or innocence of an accused is even acknowledged in Islamic Law as ‘Alqarain’ which is a plural of ‘Alqariinah’, which in legal terminology refers to an event and serves as a sign or gives traces of existence or non-existence of a fact in issue. The admissibility of circumstantial evidence can further be traced from the event of Prophet Yusuf and Zulekha which is quoted in Verse Nos.25 to 28 of Surah Yousaf.
From the recital of Quranic verses mentioned above, it can well be gathered that the allegation pointed towards Prophet Yusuf was declared to be false on the basis of circumstantial evidence. It is generally argued in favour of circumstantial evidence that a witness can tell lie but the circumstances cannot. It is equally correct to mention here that presumption of truth about the circumstantial evidence is nothing more than a notion, thus the court have to be at their toes while evaluating such cases. On occasions, circumstantial evidence is crafted by planting false witnesses to secure conviction against the accused facing trial.
Murder Reference
55-19
THE STATE VS NADEEM SHAH
2024 YLR 1127
The evidence of last seen stands for the events in which the deceased is lastly seen in the company of an accused and subsequent thereto he becomes untraceable. For structuring conviction upon the circumstantial evidence, it is incumbent upon the prosecution to prove two of its basic ingredients which are proximity of time and proximity of distance. The proximity of time to prove the evidence of last seen rests on the principle of “de recenti” which lays emphasis that time span between the event of last seen and death must be very short. The short duration between the evidence of last seen and the murder incident in fact eliminates the possibility that the deceased parted the company of accused and joined some other person. As regards the proximity of distance, the evidence is led to bring on record during trial that the victim was assassinated at a short distance from the place where he was lastly seen in the company of assassin. The more is the distance between evidence of last seen and the death of deceased, greater is the possibility about the hypothesis of innocence of the accused. The failure of prosecution to prove the proximity of time and distance is destined to weaken the evidence of last seen.
While evaluating the legal worth of last seen evidence, the courts must not forget that our system of investigation is susceptible to the menace of fabrication of facts, knitting of false evidence and throwing of wider net. Due to the foregoing reason, the evidence of last seen is to be scanned with extra care because such evidence is easy to knit but difficult to prove. Even if proved, the evidence of last seen gives rise to the probability about the involvement of an accused in the assassination of the victim, hence is to be considered along with other components of circumstantial evidence for awarding conviction while looking for strong corroboration.
Murder Reference
55-19
THE STATE VS NADEEM SHAH
2024 YLR 1127
It is well embedded principle of appraising the evidence in criminal case that the fact brought in evidence through dishonest improvement is to be discarded. The purpose of such approach is to deprive a witness of taking leverage for overcoming lacunas in the case by adjusting his statement accordingly.
Murder Reference
55-19
THE STATE VS NADEEM SHAH
2024 YLR 1127
It is intriguing that the dead body was found immersed in the water but during autopsy no supporting symptoms were observed by the doctor in this regard. It will not be out of place to mention here that the most well-known external indication upon the corpse recovered from water is the wrinkling of skin upon hands and feet, more commonly called in normal parlance as washer women’s hands. Dr.B.R.Sharma in the Chapter Elementary Forensic Medicine of his book Forensic Science in Criminal Investigation and Trials, discussed in detail about the dead body recovered from the water and the symptoms it carries. According to B.R. Sharma, on occasions the dead bodies are disposed of in the water in homicide cases and sometimes the death occurs due to drowning but in both the cases, the hands and feet acquire washerman’s skin having wrinkles. Similarly, Dr. S.Siddiq Husain in his book Forensic Medicine and Toxicology dilated upon the external appearance of a dead body recovered from the water and opined in the Chapter Violent Deaths from Asphyxia that skins of palms and soles of feet is bleached, wrinkled having resemblance with washerman’s hands.
Murder Reference
55-19
THE STATE VS NADEEM SHAH
2024 YLR 1127
0 Comments