24/05/2023
2022 PCrLJ 126
PLJ 2022 CrC 186
PW in cross-examination, admitted that when injured was taken to hospital, his clothes were smeared with blood. Those clothes to my mind could be considered strong corroborative piece of evidence to prove his presence at crime scene but those were never produced before the investigating officer.
IMPROVEMENTS...............................
There are two kinds of possible improvements by a witness during trial. One relates to explain certain facts those are immaterial in nature causing no damage to prosecution’s case. The others are called deliberate, material and with a specific object, which in all circumstances shall destroy the veracity of a witness.
It is a settled proposition by now that no reliance can be made on the testimony of a witness who intentionally introduces improvements in his statement so as to cover the lacunas or to bring his testimony in line with other pieces of evidence.
‘Fiat Justitia’ is the motto of the Court. It is a Latin phrase, which means ‘Let Justice be done’. Appreciation of evidence involves weighing the credibility and reliability of the evidence presented in the case. According to Jeremy Bentham ‘evidence’ is any matter of facts, the effect, tendency or design of which is to produce in the mind, a persuasion, affirmative or dis-affirmative, of the existence of some other matter of fact. ‘Evidence’ means and includes all statements, which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry and all documents including electronic records produced for the inspection of the Court. The standard of proof in Criminal case is not the same as in the Civil. Importantly, in criminal case, the burden of proving the guilt of an accused is upon the prosecution. It must stand by itself. If there is a real and reasonable doubt as to guilt, the accused is entitled to the benefit of doubt. The law always requires that the conviction should be certain and not doubtful.
Under Section 367 of Cr.P.C a judgment shall contain the point or points for determination, the decision, thereon and the reasons for the decision. The learned Trial Judge has made complete deviation from the statutory provisions while writing the impugned judgment.
A good judgment must base on deep critical analysis of all the facts relevant to the case and not on external consideration. It, in all circumstance, has to be transparent, unambiguous, and intelligible. It is said that “a judgment should be transparent like clean water so that people can understand it without any doubt and probabilities”.
Dying Declaration.....................
The Phrase “Dying Declaration” means that: - “A man will not meet his maker with a lie in his mouth”
In the law of evidence, a dying declaration is testimony that would normally be barred as hearsay but may be admitted as evidence in criminal law trials because it constitutes the last words of a dying person. The rationale is that someone who is dying or believes death to be imminent would have less incentive to fabricate testimony, and as such, the hearsay statement carries with it some reliability.
Evidence of dying declaration is universally recognized.
In England and Wales an original statement made by a dead person is admissible under the statutory "unavailability" exception subject to the Courts’ judicial discretion to exclude unreliable evidence.
In United States of America under the Federal Rules of Evidence, a dying declaration is admissible if the proponent of the statement can establish that deceased’s statement was made while under the genuine belief that his or her death was imminent and that the statement relates to the cause or circumstances of what he or she believed to be his or her impending death; statement must relate to the circumstances or the cause of the his own impending death.
The first use of dying declaration exception in American law was in 1770 murder trial of the British soldiers responsible for the Boston Massacre. One of the victims, Patrick Carr, told his doctor before he died that the soldiers had been provoked. The doctor's testimony helped defense attorney John Adams to secure acquittals for some of the defendants and reduced charges for the rest.
Dying declaration is also allowed as evidence in Indian Courts, if the dying person is conscious of his or her danger, he or she has given up hopes of recovery, the death of the dying person is the subject of the charge and of the dying declaration, and if the dying person was capable of a religious sense of accountability to his or her Maker.
In Pakistan, dying declaration is the statement that is made by the victim of homicide offence and it relates to his/her cause of death. Under Article 46 of the Qanoon-e-Shahadat, it is a relevant fact when it is made by a person as to cause of his death, or as to any of the circumstances of the transaction which resulted in his death.
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?
