::Criminal Justice..Law and Principles

LAW AND PRINCIPLE OF CRIMINAL JUSTICE

There is no cavil to this proposition of law that three corner principle of criminal jurisprudence are well settled.

1.         That it is the duty of the prosecution to prove the case against accused and the weakness of the defense shall not strengthen the prosecution case. Accused is most favorite child of law and every benefit of doubt goes to him regardless of the fact whether he has contain any such plea or not:–

2008 SCMR 1080

2.         Accused must be presumed to be innocent unless he is proved to be guilty. The onus of the prosecution never shift, the basic principle, was laid down of the criminal justice in famous case reported in PLD 1953 F.C 93 burden of general issue always on prosecution accused burden not as heavy as that on the prosecution accused failing to prove special pleadings, but succeeding in raising reasonable doubt, entitled to be acquittal whole of the evidence to be looked into entirety and not merely special pleading of accused irrespectively of prosecution evidence no conflict between Section 105 and principle laid down in Wool Minton’s case (LR. 1935 ACP 462).

“Per Abdul Rashid, C.J. Section 105 of the Evidence Act has been enacted in order to make it clear that it is not the duty of the prosecution to examine all possible defence that might be taken on behalf of the accused, and to prove that none of those defence would be of any assistance to him. The principles laid down in Wool Minton’s case are applicable with full force in Pakistan in spite of the provisions of Section 105 of the Evidence Act.

(PLD 1953 F.C. 93)

The burden of proof in evidence proceedings always on the prosecution. The burden as it has been called of establishing a case whether by preponderance of evidence or beyond a reasonable doubt and the burden of proof in the sense of introducing evidence. The phrase has been used in the first sense in Article 117 and second sense in Article 118 of the Qanoon-e-Shahadat. It is in this sense that the burden of proving the guilt of a person charged with an offence is on the prosecution and it is in this sense that the accused has a right to silence has relevance. Because the prosecution bear the burden of proving guilt they should discharge it without assistance from the defendant. The initial burden is in the prosecution to frame its case beyond reasonable doubt and that accused is not required to prove his innocence. PLD 1994 S.C. 856).

Sections 302/324/337-A (ii)/34 P.P.C., application of evidence — Guidelines — Defence plea — Practice and procedure–All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be examined in relation to the question, viz. is the plea/version raised by the accused satisfactorily established by the evidence and circumstances in the case appearing — If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly—If the answer to the question be in the negative, then the Court will not reject the defence plea as being false, but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true — If the Court finds that although the accused has failed to establish his plea to the satisfaction of the Court, yet his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly 2008 SCMR 1565 at Page 1571.

In criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. It, after on examination of the whole evidence the Court is of the opinion that there is reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case in these circumstances, the accused is entitled to the benefit of doubt not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt.

(PLD 1956 F.C. 93)

This principle was followed and applied in Nadeem-ul-Haq Vs. State (1985 S.C.M-.R. 510) and in the case of Rab Nawaz Vs. State (PLD 1994 S.C.856)

Mere non-acceptance of an accused person’s special pleading will not justify his conviction of the offence charged, or such as might have been charged.

Criminality is never to be presumed so strong is this presumption of innocence of the accused that in order to rebut it, the crime must be brought home at an accused beyond reasonable doubt and the graver the crime, the greater will be the degree of doubt that is reasonable.

It is better that ten guilty person’s acquired rather than one innocent person be convicted. In this context is useful to refer to the well known passage in the judgment of Lord Chancellor in the case of Wool Minton V/s Director of Public Prosecution:-

Throughout the web of the English Criminal 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 that what I have already said as to the defence of in saintly and subject also to any statutory exception if at the and of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or.the prisoner, as to whether the prisoner killed the deceased with a malicious intention the prosecution has not made out the case and the prisoner is entitled to an acquittal.

To speak with Vicount Simon held, miscarriage of justice may arise from the acquittal of the guilty no less then from the connection of the innocent, therefore, our rules of criminal justice reminded the Court of their solemn duty on the one hand to punish a crime and on the other hand to find and punish the real offender so that no innocent life is extinguished or impaired.

It is well settled law that the strong suspicion against accused cannot take place of the legal proof. The primary object of criminal trial is to ensure fair trial. A fair trial has naturally two objects in view. It must be fair to the accused and must fair also to the prosecution the trial be judged of this due point of view.

The Cardinal Rule of the Administration of Justice is that the prosecution must prove the guilt of accused and that the accused need not prove any thing. He is entitled to stand on the innocent which the law imputes to him till it is displaced. The burden resting on the prosecution never shifts, even if the defence of the accused is palpably false, the prosecution must establish beyond all reasonable doubt that no other alternative than the truth of the prosecution story will explain the facts. It is true that the Court is required to come to the decision on the whole of the evidence that has been laid before it and on the plea of the accused. When the prosecution has made out a case against the accused, the plea and defence of the accused may have any of the three results, namely, it may convince the Court of the innocence of the accused or if may cause the Court to doubt in which case the accused would be entitle to acquittal, or it may, and sometimes does strengthen the case for the prosecution. But. it does not mean that when the prosecution evidence is found to be false and raddled with defect and the prosecution has not of itself discharged the burden the Court can look to the plea of the accused and his evidence to see whether there are material available to bolster up the case for the prosecution, or the add weight and reliability to the prosecution witnesses where none exists.

In a criminal case there are always two version of the case, on version is forwarded by the prosecution and the other is taken by the accused in the plea of innocent. There is no cavil to this proposition of law when there are two version, the version put forward by the accused it was accepted. If it is reasonable and drabable.

Where there are two conclusions reasonably possible, one compatible with innocence and the other with guilt, the presumption of innocence must prevail.

The law says that if two possible views can be taken on the facts of the case the accused must be given benefit of doubt; a views favourable to the accused has to be adopted. It was irreversibly held by the superior Court.

“It is no doubt a matter of great regret that a foul could be blooded and cruel murder should go unpunished. There may be an element of truth in the prosecution story against the accused. Considering as a whole, the prosecution story may be true but between, may be true and must be true, there is inevitably a long distance to travel and the whole of the distance must be covered by the prosecution by legalr reliable and unimpeachable evidence before an accused can be convicted in a criminal case suspicion, however strong, cannot take the place of proof”

The question arises what is a reasonable doubt according to Lord Darling, “A reasonable doubt means this, it does not mean that it is disagreeable to you, it does not mean that by some possible hypothesis you can arrive at that conclusion. There hardly anything of which a rally subtle and imaginary person cannot honestly bring himself to doubt. But it means that you say that you are convinced, unless when you consider the facts you have a reasonable doubt as to whether the matter is proved or whether it is not a reasonable doubt in this sense, it is the kind of doubt no such a reasonable doubt as in the day time, when you are about your business, would lead you to say, 1 cannot make up my mind about it.”

It is not mere a possible doubt because every thing relating to human affairs on depending upon moral evidence is open to some possible or a majinory doubt in the word Lord Kenyouns advice.

“If the scale of evidence hanging anything live even, to throw into them, some grains of mercy, or as it more commonly put to give the prisoner the benefit of any reasonable doubt. In other words it must be substantial doubt, it must arise from the evidence or from the lack of want of insufficiency of evidence for the State, it can not be reasonable doubt where it is based primarily on the argument of counsel the basic concept of the theory of benefit of doubt that it should not be artificial it must be based on the evidence on record. A reasonable doubt is one which arose from a consideration of all evidence in fair and reasonable way. A doubt is not a reasonable that, in case of overwhelming or a strong evidence, assume that the accused may be possibly true. It is not out of place to mention that doctoring of contributory defence a good defence in civil law has no place in criminal law. It is no defence is criminal case.

Accused succeeding in creating doubt about the guilty needless to establish his guilt (PLD 1961 LAHORE 137) as noted above.

It is settled principle of law that benefit of doubt must be given to-accused (NLR 2007 Cr.LJ. 34).

It would always be given to accused (2007 S.C.M.R. 486) every doubt is required to be resolved in favour of the accused under the law. (2008 YLKR – January 206 Kar)

The direct and circumstantial evidence

Supreme Court of Pakistan in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:-

(1)        The circumstance from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

(2)        Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.

(3)        The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime has committed by the accused and none else, and

(4)        The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistently with his innocence.

When in a case of circumstantial evidence there is no chain of evidence so complete as to say that in all human probability the murder of the deceased must have been committed by the accused persons or any of them, then conviction is not sustainable.

When Defence Plea appeared to be reasonable-prosecution failed to prove its case against accused beyond reasonable doubt and would be entitled to benefit of doubt as of right and as a matter of grace

2008 SCMR 6.

1985 SCMR 510.

1986 SCMR 721.

1993 SCMR 417—1628.

PLD 1999 Lahore 56.

Eye witnesses found to have falsely impleaded five out of eight accused.

Effect: Conviction of remaining three accused could not be based on the same evidence without independent corroboration

2008 S.C.M.R. 6

PLD 1975 S.C. 586

1999 S.C.M.R: 697

1995 S.C.M.R. 599

It has been held by this Court time and again that in heinous crimes leading to loss of human life without any legal justification and brutal killing at the whims of unscrupulous criminals, evidence should be brought with great care and caution. That while deciding the criminal case Court showed ignore the technicalities gather examine her evidence in a depict and pedantic money. 2008 SCMR 33 and PLD 1991-1

GUIDELINES

Corroboration is only rule of caution and not a rule of law if the eye witnesses account is found reliable and trustworthy, then there is hardly any need to look for any corroboration.

2008 S.C.M.R. 784

Medical evidence or expert opinion has always been hyated to be conformity in nature. Medical evidence cannot establish the presence of accused in the occurrence weapon of offence used or injury caused to deceased by him (2008 S.C.M.R. 1086)

It is the medical expert which can opine that a specific injury was infected which kind of weapon. 2005 SCMR 1086.

While deciding the criminal case Court should ignore the technicalities rather examine the evidence in a dynamic and pedantic manner.

From the perusal of the Constitutional and legal provisions and pronouncements by the esteemed judges, the development trend is evident and some of the principles deducible therefrom are that,—

(i)      where the High Court has, on appeal, reversed and order of acquittal of and accused person and sentenced him to death or to transportation for life or imprisonment for life, the appeal lies before Supreme Court as of right under Article 185(2)(a) of the Constitution of Islamic Republic of Pakistan. Provision of a separate procedure for that purpose under Order XXII of the Supreme Court Rules, 1980, is a strong indicator in this regard. This itself is indicative of the importance and significance of acquittal which places the matter on different footing than others.

(ii)      Supreme Court has every right of examining evidence in a criminal appeal if the interest of justice so demand for which purpose each case will have to be adjudged upon its on facts and circumstances and in case the Court reaches the conclusion that the person has been dealt with in violation of the accepted principles of the administration of criminal justice then “no technical hurdles should be allowed to stand in its way of doing justice and seeing that injustice is not perpetuated or perpetrated by the decisions of the Courts below”.

(iii)     As an ultimate Court, Supreme Court must give due weight and consideration to the opinions of the Courts below and normally the findings should not be interfered where the same “are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence”. But where defect is discovered about tenability of finding in that case it should be open to the Court to come to its own in dependent finding upon re-examination of the evidence untrammeled by the opinions of the Courts below.

(iv)     The position of the trial Court being close to the scene of occurrence and familiar with ways and practices of the people involved having the benefit of recording evidence of witnesses, watching their demeanor, view formed by the said Court should not be disregarded lightly.

(v)     The benefit of any reasonable doubt must go to the accused person but where the conclusion about such a doubt leading . to acquittal is wholly illogical or unreasonable, the sane can be reversed by the higher Court.

(vi)     While giving the benefit of all doubts to the accused, the Court has still to discharge the onerous function of not allowing an offender to escape justice.

(vii)    The benefit of doubt if any cannot be given to the prosecution.

(viii)   Mere suspicion howsoever strong or possible is not sufficient to justify conviction and all circumstances sought to be relied upon for basing conviction upon circumstantial evidence must be established beyond doubt.

(ix)     Straining of evidence either in favour of the prosecution or in favour of the accused should neither be countenanced nor encouraged.

(x)     While examining the views expressed by the Courts below in should be seen that the findings are not based on mere assumptions and conjectures.

(xi)     The acquittal should not be interfered with, merely on the ground that another possible view of the evidence-was available.

(xii)    It is the fundamental duty of the prosecution to prove the guilt to the hilt and not of the accused to prove his plea of defence to the hilt and that the weakness or falseness of the defence plea is not to be taken into consideration while awarding punishment.

(xiii)   That the Court is to appraise evidence without being swayed away emotionally as accused is presumed to be innocent, until the guilt is proved against him by producing evidence of incriminating nature to connect him with the commission of crime beyond shadow of reasonable doubt.

(xiv)   The principle that if a witness is not coming out with the whole truth his evidence is liable to be discarded as a whole is not that absolute and stand modified as his testimony will be acceptable against one set of accused, though rejected against the other subject to the rider that it must get independent corroboration on material particulars from credible evidence based on the principle of “sifting chaff out of grain”. PLD 2009 SC 709.

By MUHAMMAD TAQI KHAN, Advocate

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