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Law Dealing with Evidence in Criminal Cases

By

MIAN ALI HAIDERL.L.B., L.L.M. (CUM LAUDE) U.K.

SESSION TRAIL• Evidence, its meaning – See Article 2 (c) of 1984 Order

• Evidence in criminal cases – Sections 244, 540 Cr. P.C. Order in which evidence will be recorded – Article 10 of 1984 Order

• Right of accused to be present – Section 353 Cr.P.C.

• Presence can be dispensed with, Section 265 Cr.P.C.

• The right can be waived;

• When the accused has absconded, Section 87 and 88 Cr.P.C.

• Trial in absentia

• Mode of taking and recording of evidence, sections 355, 357, 359, 363 C.r.P.C.

• Examination of Witness

• Examination – in – chief,

• cross – examination,

• re – examination – Article 133 of 1984 Order;

• Leading questions, Article 136

• When a witness turns hostile, Article 150

• Impeaching a witness’s credit, Article 151

• Court question, Article 161 of 1984 Order read with Section 540 Cr.P.C.

• The judge must not assume the role of the prosecutor or that of judicial advocacy

• Presumption of fact, of law, rebuttable, irrebuttable, Articles 96 to 98, 100, 129, 90 to 95, 99, 121, 55 and 128 of 1984 Order;

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Evidence & It’s Meaning

• 2 (c) "Evidence" includes;

(i) all statements which the Court permits or requires be made before it by witnesses, in relation to matters of fact under inquiry ; such statements are called oral evidence ; and

(ii) all documents produced for the inspection of the Court; such documents are called documentary evidence ;

• It defines evidence but not exhaustively

• Why?

• Now what to do?

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Criminal Administration of Justice

• Substantive Law

• Procedural Law

• Whether we can take help from it?

• Doctrine of cross reference?

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Cross Reference to govern the evidence in criminal cases

• 244. Procedure when no such admission is made.

(1) If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.

Provided that the Magistrate shall not be bound to hear any person as a complainant in any case in which the complaint has been made by a Court.

(2) The Magistrate may, if he thinks fit, on the application of the complainant or accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

(3) The Magistrate may, before summoning any witness on such application, require that his reasonable expenses, incurred in attending for the purposes of the trial, be deposited in Court:

[Provided that it shall not be necessary for the accused to deposit any such expenses in Court in case where he is charged with an offence punishable with imprisonment exceeding six months.]

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Cross Reference to govern the evidence in criminal cases

• 540. Power to summon material witness or examine persons present.

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

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Modes of taking & recording Evidence

• CHAPTER XXV - OF THE MODE OF TAKING AND RECORDING

EVIDENCE IN INQUIRIES AND TRIALS

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Right of accused to be present• 353. Evidence to be taken in presence of

accused.

Except as otherwise expressly provided, all evidence taken under [Chapters XX, XXI, XXII and XXIIA] shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.

• Presence necessary? Why?

• The concept of Dispensation? 8

354. Manner of recording evidence

• 355. [Record in trial of certain cases by first an second class Magistrates.]

[(1) In cases tried under Chapter XX or Chapter XXII] Magistrate of the first or second class and in all proceedings under section 514 (if not in the course of a trial), the Magistrate shall make a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds.

(2) Such memorandum shall be written and signed by the Magistrate with his own hand, and shall form part of the record.

(3) If the Magistrate is prevented from making a memorandum as above required, he shall record the reason of his Inability to do so and shall cause memorandum to be made in writing from his dictation in open Court, and shall sign the same, and such memorandum shall form part of the record.

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357. Language of record of evidence.

• (1) The Provincial Government may direct that in any district or part of a district, or in proceedings before any Court of Session or before any Magistrate or class of Magistrates the evidence of each witness shall, in the cases referred to in section 356, be taken down by the Sessions Judge or Magistrate with his own hand and in his mother-tongue, unless he is prevented by any sufficient reason from taking down the evidence of any witness, in which case he shall record the reason of his Inability to do so and shall cause the evidence to be taken down in writing form his dictation in open Court.

(2) The evidence so taken down shall be signed by the Sessions Judge or Magistrate and form part of the record:

Provided that the Provincial Government may direct the Sessions Judge or Magistrate to take down the evidence in the English language or in the language of the Court, although such language is not his mother-tongue.

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359. Mode of recording evidence op-cit section

• (1) Evidence taken under section 356 or section 357 shall not ordinarily be taken down in the form of question and answer, but in the form of a narrative.

(2) The Magistrate or Sessions Judge may, in his discretion take down, or cause to be taken down, any particular question and answer

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363. Remarks respecting demeanour of witness

• When a Sessions Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination.

• What are different modes of examination?

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Modes of Examination• The process of witness examination follows an extremely rigid format.

• Because the advocate is bound by

Rules of evidence,

The law under which the accused has been charged,

Restrictions as to time.

• Whether acting as the advocate for the prosecution, or the accused, you are there to do something for them that they cannot do themselves: to get the evidence brought before the court in a clear and logical progression whilst abiding by the rules of evidence.

• In a Witness Examination, advocates for both the prosecution and the accused will be required to obtain relevant and admissible evidence from the witness that will be called in support of your case revolves around:

Examination-in-chief Cross Examination

Re-examination 13

Examination-in-Chief

• 132. Examination-in-chief, ...:

(1) The examination of a witness by the party who calls him shall be called his examination-in-chief.

• Form?

• Object?

• Who may conduct it?

• 133(1) regarding timing14

Purpose of Examination-in-Chief

1. Examination-in-Chief must focus attention on the witness.

2. The aim of examination-in-chief is primarily for the advocate to ensure that the witness tells the story. It is also sometimes used by the advocate to shield and insulate the witness from potential weaknesses in the evidence and/or potential cross-examination questions which may follow.

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Skill Overview

• Form of the Question: Keep It Simple!!!!!!!!!

Examination-in-Chief requires the advocate to ask single-fact, non-leading questions. The keys to success are preparation and simplicity.

• Be logical: Identify the evidence and the sequence in which the witness should give evidence in order to support your case. Start at the beginning and consider whether you need to elicit any background information that will assist the court.

• Break down the evidence: Break down the subject areas of the witness evidence into smaller pieces. e.g. Start your examination-in-chief by telling the witness the subject areas that you would like to question him on.

• Use transition questions, for example:

1. Q: What happened the evening of 19 April?

2. A: I was attacked.

3. Q: I’d now like to now focus on the description of the person who attacked you. How tall was your attacker? 16

Skill Overview

• Focus on short, simple questions: Questions for examination-in-chief should be:

1. single-fact questions

2. non-leading

• Piggy-Backing Questions: This technique incorporates a witness’s answer in the next question the advocate asks the witness. For example:

1. Q: What did John do when he saw you?

2. A: He attacked me with a hammer.

3. Q: When he attacked you with the hammer, what did you do?

• Used effectively, this technique can help repeat and emphasize important evidence. 17

Cross Examination• 132(2) The examination of a witness by the

adverse party shall be called his cross examination.

• Object of cross?

• Scope?

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Cross Examination• Cross-examination is at the heart of the adjudication of criminal

trials. It is only through cross-examination that the court is led to see the "whole truth".

• Cross-examination is a matter of right. Wigmore asserts that cross-examination "is beyond any doubt the greatest legal engine ever invented for the discovery of truth“.

• Constitutional Right of the Accused

• Scope of Cross-Examination

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Scope of Cross-Examination• Cross-examination is the principal means by which the

believability of a witness and the truth of his testimony are tested.

• Subject to the broad discretion of the trial judge to preclude repetitive and unduly harassing interrogation.

• The crossexaminer is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit the witness.

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Cross Examination vision theory• Theory of Reasonable Doubt

• Theory of innocence

• Does the witness help / hurt

• Impeach prosecution case

• Build credibility

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Leading Questions• 136. Leading questions: Any question suggesting the answer

which the person putting in wishes or expects to receive is called a leading question.

• 137. When leading questions must not be asked: (1)

Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a reexamination, except with the permission of the Court.

(2) The Court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion, been already sufficiently proved.

• 138. When leading questions may be asked: Leading questions may be asked in cross examination.

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Leading Questions

• A leading question suggests a particular answer that the questioner desires – most often a simple ‘yes’ or ‘no’ answer.

“You were in Lahore last week, weren’t you?” (Leading question)

“Were you in Lahore last week?”

(Neutral question)

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Loaded Question• A loaded question implies some fact that has not been

previously established. In answering this kind of question (with its negative implication), the witness is put in a dilemma.

“Do you still beat your wife?”

(Loaded question)• Because it implies that you used to beat your wife.)

“Do you beat your wife?”

(Neutral question)• Not all facts, only which imply negative 24

Blend: Leading & Loaded

• Sometimes questions can be both leading and loaded:

• “You still beat your husband, don’t you?”

Loaded Leading

• Who may ask?

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When a witness turns hostile

• 150. Question by party to his own witness: The Court may, in its discretion, permit the person who calls a witness to put any questions to him, which might be put in cross examination by the adverse party.

• Requirements for invoking it:– Guilty of prevarication

– He is inconsistent in his statement

– Tries to suppress the truth

– Bears an animosity towards the party calling him 26

Impeaching a witness’s credit• 151. Impeaching credit of witness:

The credit of a witness may be impeached in the following ways by the adverse party or with the consent of the Court, by the party who calls him:

(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un-worthy of credit;

(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence ;

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted ;

(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

Explanation: A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reason for his belief, but he may be asked his reasons in cross examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.

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Impeachment by Traditional Method• Three common scenarios:

i. A witness’ testimony at trial contradicts his prior deposition testimony.

ii. You have a surprise (surveillance video/material from the witness’ website/prior inconsistent writing) that

undermines a witness’ credibility or contradicts their testimony.

iii. You are calling an adverse witness, and would like to use her prior deposition testimony to control or limit her testimony in court.

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Seven basic methods of impeachment

i. Prior inconsistent statements;

ii. Bias/interest/motive;

iii. Bad character for truthfulness;

iv. Prior convictions;

v. Prior bad acts;

vi. Contradictory facts; and

vii. Treatises

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Court Question’s• 161. Judge's power to put questions or order production:

The Judge may in order to discover or to obtain proper proof of relevant facts, ask any question he places, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:

Provided that the Judgment must be based upon facts declared by this Order to be

relevant, and duly proved:

Provided also that this Article shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Articles 4 to 14, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the judge ask any question which it would be improper for any other person to ask under Article 143 or 144; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted. 30

Court Question’s• Armed with most exhaustive powers

• To be exercised by its own independent evaluation

• Purpose?– Ambiguity,

– Truth

– In any form

– At any stage

– Of any witness

– Or of the parties

– About any fact relevant or irrelevant

• Pre-requisite

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Court Question’s• Embargo• The judge must not assume the role of the prosecutor or

that of judicial advocacy so witness cannot be compelled to answer

1. Any question or to produce any document contrary to art. 4 to 14

2. Any question contrary to article 143, 144 &

3. The Judge shall not dispense with primary evidence of any document except in cases axcepted under the QSO

• The powers op-cit are supplementary to powers provided in O.X, R. 2,4, O. XVI, R. 14 CPC & 540 Cr.P.C.

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Assignment

• Presumption of fact,

• Presumption of law,

• Rebuttable,

• Irrebuttable,

• Articles 96 to 98, 100, 129, 90 to 95, 99, 121, 55 and 128 of 1984 Order

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Reading Material

• R v Tueqet – (2000) 2 All ER 872, 888;

• Ali Nawaz – PLD 1963 SC 51, 86;

• Muhammad Azam – PLD 1984 SC 94, 123

• R v Jones – (2002) 2 All ER 113;

• Mehram Ali – PLD 1998 SC 1445, 1488;

• State Vs. Balahadri Dass Sutradhar PLD 1962 Dacca 467 (DB)

• Kanchan Ali Vs. Shahjahan PLD 1962 Dacca 192 (DB)

All other material in the folder as well

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