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08/04/2023

Sure of Guilt and Floating Standard (2021 LHC 3380/2022 YLR 805) The standard of Proof required before a criminal court is proof beyond reasonable doubt, yet it also goes side by side with new formulation of standard, internationally followed in some jurisdictions i.e. “Sure of guilt” keeping in view the circumstances of the case. Jurists have introduced a new concept of standard of proof that is known as “floating standard”, which means every piece of evidence shall not be evaluated on the touchstone of standard of proof beyond reasonable doubt, Probability varies low or high on different types of evidences produced before the court. e.g. standard of proof required for ocular account may vary from standard of proof for medical evidence and so on for other types of evidence in a case, yet it is the totality of circumstances and the combined or cumulative effect of all types of evidence produced before the court which prove the charge beyond reasonable doubt or at least equip the court that it must be sure of guilt of accused.

08/04/2023

Principle of Abundant Caution

2020 SCMR 664 (MUHAMMAD RAFIQUE alias NEELA and another V. The STATE)

“Doctrine of abundant caution---Scope---Said doctrine was a silver lining in jurisprudence to ensure safe administration of criminal justice and application thereof did not necessarily imply destruction of entire volume of evidence, if otherwise found sufficient to sustain the centrality of the charge”.

07/04/2023

Inquest Report
“The word "inquest" is not defined in the Code of Criminal Procedure, nor in the Pakistan Penal Code, but it is apparent that what is intended is that the Magistrate should prepare a report as to the apparent cause of death of the deceased person, mentioning the wounds etc., found on the body and the weapons which appear to have been used for causing the injuries which have resulted in fatality”
Combined study of the Police Rules and the provisions of Cr.P.C reveal that: -
i. Under Section 174 Cr.P.C the powers are available to police officer and Magistrate too.
ii. Under section 176 Cr.P.C the powers are exclusively available to a Magistrate.
iii. In case of inquest by police officer, he shall make the investigation whereas in case of a Magistrate he shall hold an inquiry.
iv. In both the situations, the objective is to find out the cause of death.
v. In case under Section 174 Cr. P.C there are situations defined in clauses (a) (b) and (c), whereas in case of Magistrate another additional eventuality of death in police custody is there.
vi. In both the eventualities there must be existence of dead body may it be outside or inside the grave.
vii. The inquiry by a Magistrate is either instead of, or in addition to, the investigation.
viii. It may be under Section 174 or 176 Cr.P.C, the exercise has to be made without wastage of time as these proceedings appear to be of emergent nature.

The purpose of an inquest/inquiry by a Magistrate is to gather the evidence that may be used by the police in their exploration of a violent or suspicious death and the subsequent prosecution of a person if death ensued from a criminal act. An inquest is not a trial but criminal proceeding of a preliminary, investigatory nature. While holding an inquest/inquiry under Section 174 or 176 Cr.P.C a Magistrate is confined to find out the cause of death only if it is unnatural like, Homicidal or Accidental or Suicidal. He by no stretch of imagination can declare that who is responsible for the death.

2021 LHC 2939

The law regarding judicial confessions is set out in section 164 Cr.P.C. read with section 364 Cr.P.C. and Chapter 13 of...
02/04/2023

The law regarding judicial confessions is set out in section 164 Cr.P.C. read with section 364 Cr.P.C. and Chapter 13 of Volume III of the Lahore High Court Rules and Orders which may be summarized as follows:
(a) Section 164 Cr.P.C. deals with the recording of statements and confessions at any stage before the commencement of an inquiry or trial. Section 342 Cr.P.C. deals with the examination of accused persons during the course of an inquiry or trial. Section 364 Cr.P.C. prescribes the manner in which the examination of an accused person is to be recorded.
(b) Statements or confessions made in the course of an investigation can be recorded only by a Magistrate of the First Class or a Magistrate of a Second Class who has been specially empowered by the Provincial Government. However, it is not necessary that the Magistrate recording the confession should be the Magistrate having jurisdiction in the case.
(c) The confession must be recorded and signed in the manner provided in section 364 Cr.P.C.
(d) Police officers investigating the case should not be present at the time when the Magistrate records the confessional statement.
(e) Before recording any confession the Magistrate should explain to the person making it that he is not bound to make the confession and that if he does so it may be used as evidence against him.
(f) A Magistrate should not record any such confession unless upon questioning the accused person he is satisfied that he is making it voluntarily. For this purpose he should put him the questions stipulated in Rule 5 of Chapter 13 of Volume III of the Lahore High Court Rules and Orders and record his answers thereto. If the answers are ambiguous he may put him such further questions as may be necessary. In order to determine whether the confession is voluntary the Magistrate should consider inter alia the period during which the accused person has been in police custody. He should also ensure that the confession is not the result of any undue influence or illtreatment.
(g) In order to further ensure that a confession under section 164 Cr.P.C. is made voluntarily, before he proceeds to record the confession the Magistrate should allow the accused person some time to ponder and during that period he should be kept out of the hearing of police officers and other persons likely to influence him.
(h) The memorandum set forth in section 164(3) Cr.P.C. must be appended at the foot of the record of the confession.
(i) The confession should be recorded in open court and during court hours unless there are exceptional reasons.

2021 MLD 1415

01/04/2023

Requirements insisted upon by the august Supreme Court of Pakistan for proving audio tape or video before a court of law have been elaborated in paragraph-11 of the case of “ISHTIAQ AHMED MIRZA and 2 others versus FEDERATION OF PAKISTN and others” (PLD 2019 Supreme Court 675) and same are hereby reproduced:-

* No audio tape or video can be relied upon by a court until the same is proved to be genuine and not tampered with or doctored.
* A forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of an audio tape or video is per se admissible in evidence in view of the provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007.
* Under Article 164 of the Qanun-e-Shahadat Order, 1984 it lies in the discretion of a court to allow any evidence becoming available through an audio tape or video to be produced.
* Even where a court allows an audio tape or video to be produced in evidence such audio tape or video has to be proved in accordance with the law of evidence.
* Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, has to be produced so as to rule out any possibility of tampering with the record.
* An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.
* The person recording the conversation or event has to be produced.
* The person recording the conversation or event must produce the audio tape or video himself.
* The audio tape or video must be played in the court.
* An audio tape or video produced before a court as evidence ought to be clearly audible or viewable.
* The person recording the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognizes such voice or person.
* Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.
* The voices recorded or the persons shown must be properly identified.
* The evidence sought to be produced through an audio tape or video has to be relevant to the controversy and otherwise admissible.
* Safe custody of the audio tape or video after its preparation till production before the court must be proved. * The transcript of the audio tape or video must have been prepared under independent supervision and control.
* The person recording an audio tape or video may be a person whose part of routine duties is recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.
* The source of an audio tape or video becoming available has to be disclosed.
* The date of acquiring the audio tape or video by the person producing it before the court ought to be disclosed by such person.
* An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion.
* A formal application has to be filed before the court by the person desiring an audio tape or video to be brought on the record of the case as evidence. ”

01/04/2023

Test identification parade---Capacity and ability of the eye-witness to identify the accused---"Estimator variables" negatively affecting the memory of a witness...... Following is the non-exhaustive list of "estimator variables" that negatively affected the memory process of a witness:
i. Stress: Even under the best viewing conditions, high levels of stress could diminish an eye-witness' ability to recall and make an accurate identification. While moderate levels of stress improved cognitive processing and might improve accuracy, an eyewitness under high stress was less likely to make a reliable identification of the perpetrator.
ii. Weapon focus: When a visible weapon was used during a crime, it could distract a witness and draw his or her attention away from the culprit. Weapon focus could thus impair a witness' ability to make a reliable identification and describe what the culprit looked like if the crime was of short duration.
iii. Duration: The amount of time an eyewitness had to observe an event may affect the reliability of an identification. There was no minimum time required to make an accurate identification, however, a brief or fleeting contact was less likely to produce an accurate identification than a more prolonged exposure.
iv. Distance and lighting: A person was easier to recognize when close by, and that clarity decreased with distance. Poor lighting made it harder to see well. Thus, greater distance between a witness and a perpetrator and poor lighting conditions could diminish the reliability of an identification.
v. Witness characteristics: Characteristics like a witness' age and level of intoxication could affect the reliability of an identification. Children between the ages of nine and thirteen who viewed target-absent lineups were more likely to make incorrect identifications than adults.
vi. Characteristics of perpetrator: Disguises and changes in facial features altered between the time of the event and the identification procedure affected the accuracy of an identification.
vii. Memory decay: Memories faded with time and memory decay was irreversible; memories never improved. As a result, delays between the commission of a crime and the time an identification was made could affect reliability.

2019 S C M R 956

01/04/2023

A dying declaration certainly is an important piece of evidence, which possesses the sanctity on the reason that a dying man is not expected to tell lie. But this is not an absolute rule, as by now it is settled principle that dying declaration is a weak type of evidence as it cannot be challenged in cross-examination, therefore, the Courts have to evaluate its sanctity with great care and caution and for that Court must keep in sight that: -
i. Whether the maker has the physical capacity to make the dying declaration?
ii. Whether the maker had opportunity to identify the assailant/assailants?
iii. Whether there was a chance of misidentification on the part of dying man in identifying and naming the assailants?
iv. Whether it was free from prompting from any outside quarter; and?
v. The witness heard the deceased correctly and whether this evidence can be relied upon?
2022 P Cr. L J 126

31/03/2023

The courts in our country apply the following
principles while appraising the evidence of extra-judicial
confession:
(i) Extra-judicial confession is normally considered as a
weak piece of evidence as it can be easily procured
whenever direct evidence is not available.
(ii) An extra-judicial confession is not a direct evidence. It
can be used against an accused only when it comes from
unimpeachable sources. Further, it must be corroborated
in material particulars through trustworthy evidence.
(iii) Since extra-judicial confession is a weak type of
evidence, conviction on capital charge cannot be
recorded in its basis alone.
(iv) There are three essentials to believe an extra-judicial
confession: firstly, that the extra-judicial confession was
in fact made; secondly, that it was made voluntarily and,
thirdly, that it was truly made.
(v) In criminal cases great responsibility rests upon the
courts to determine if the confession is voluntary and
true or is lacking within the scope of either term
„voluntary‟ and „true‟. If the confession directly or
indirectly is the result of inducement, threat or promise
from a person in authority, it would be treated as not
voluntary.
(vi) The extra-judicial confession must be received with
utmost caution. No doubt the phenomenon of
confession is not altogether unknown but being a human
conduct, it had to be visualized, appreciated and
consequented upon purely in the back of a human
conduct. Why a person guilty of offence entailing capital
punishment should at all confers. There could be a few
motivating factors like: (a) to boast off, (b) to ventilate
the suffocating conscience, and (c) to seek help when
actually trapped by investigation. Where the accused
had been fully trapped during the investigation, what is
the nature and gravity of the offence involved, what is
the relationship of the accused with the person before
whom confession is made.
(vii) The status of the person before whom the extra judicial
confession is made must be kept in view. A person may
make confession before a third person to seek help from
him. Help is sought when a person is sufficiently
trapped and he feels that the other person is in a position
socially or otherwise to provide him some relief.
(viii) Evidence of witnesses before whom accused made
extra-judicial confession would not be worth reliance
when witnesses exhibited unnatural and inhuman
conduct after accused had made confession to them.
(ix) The Court should also look at the time lag between the
occurrence and the confession and determine whether
the confession was at all necessary.

(x) Joint confession cannot be used against either of them.
(xi) Extra-judicial confession made by the accused when he
is in the custody of the police is inadmissible.
(xii) Article 39 of the QSO deals with confessions which are
made not to police officers but to persons other than
police officers i.e. to a fellow prisoner, a doctor or a
visitor and makes such confessions inadmissible, if they
were made while the accused was in the custody of
police officer. Articles 38 and 39 lay down different
rules.
(xiii) As per Article 40 of the QSO, when any fact is revealed
in consequence of information received from any
accused in custody of a police officer, such information
whether it amounts to a confession or not as it relates
distinctly to the fact thereby discovered, may be proved.

2021 LHC 672///2021 YLR 2210

31/03/2023

A comprehensive judgment on extra judicial confession 2021 YLR 2210

31/03/2023

Aus Salam O Alaikum. This page has been created to keep the legal fraternity aware of latest legal updates, in a short a simple manner.

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