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Petitioner: Muhammad Ramzan VS Respondent: The State etc
Court Name: Lahore High Court Judge(s): Muhammad Amjad Rafiq Title: Muhammad Ramzan vs The State etc Case No.: Criminal Revision No.15474 of 2022 Date of Judgment:2022-04-15 Reported As: 2022 LHC 3171 Result: N/A
JUDGMENT
JUDGMENT MUHAMMAD AMJAD RAFIQ, J. This revision petition has been filed against order dated 24.01.2022 passed by learned Additional Sessions Judge, Lahore during the trial in Case FIR No. 1577/2019 dated 07.12.2019 u/s 376 PPC, Police Station Sundar , Lahore whereby application of the petitioner was dismissed and his prayer was declined for exclusion of hearsay evidence, recording of objections and decision thereon as per law . 2. Briefly , the proposition tabled before the court carried facts that Nasreen Bibi and Alishba Ramzan, two witnesses of facts relevant to commission of rape, were summoned by the learned trial court under Section 540 of Cr.P.C. vide order dated 02.12.2021; such order though was not assailed yet objection was raised by the defence about admissibility of the evidence during recording of their examination-in-chief as being hearsay; refusal to record such objection pushed the petitioner to move an application before the trial court but it was turned down on the same day through impugned order dated 24.01.2022 on the ground that it has been filed to cause delay in conclusion of trial. 3. Learned counsels for the petitioner argued that Nasreen Bibi who was recorded as PW-3 is not the eye witness rather after the occurrence she observed fearful expression of her daughter Alishba Ramzan who too was not the victim nor had seen the petitioner (her father) committing rape with Iqra rather carrying an evidence of fact that she saw him sleeping with Iqra in naked condition. Though examination-in-chief of Alishba too was recorded as PW-4, yet what can be brought on record through direct evidence, court is trying to place it through indirect evidence of Nasreen Bibi and has also refused to record and decide the objections raised by defence on the admissibility of such evidence which is against the law and precedents on the subject. She has placed reliance on case reported as "HAYATULLAH Versus The STATE" (2018 SCMR 2092) in this respect. 4. On the other hand, learned counsels for the complainant have urged that petitioner has not assailed the summoning order of such witnesses and thereby acquiesced the admissibility of their evidence; this petition has
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been filed to linger on the criminal process. 5. Arguments of proponent and opponent were heard; record perused. 6. Resume of facts collected in the proces s indicates that one Iqra aged about 11 years whose father had died and with the consent of her mother Parveen Imran, she was brought up by her materna l aunt Nasreen Bibi. Muhammad Ramzan, petitioner was the husband of said Nasreen Bibi who committed rape with Iqra allegedly many times. Last reported rape was formalized through present FIR. Now Nasreen Bibi was summoned by the trial court to depose about the facts she observed when returned home at a point of time, heard about rape with Iqra and facts ensued thereafter including story told by Alishba that she saw her father with Iqra in naked condition. 7. The main thrust catches two points to elaborate for the assistance of trial court and parties to trial; (i) whether evidence of Nasreen Bibi is admissible under the rules of evidence, (ii) how and when to decide objections with regard to admissibility of any evidence. 8. Though by judicial reasoning relevant evidence is usually admissible but there are certain restrictions on admissibility depending upon the exclusionary rules of evidence. These artificial restrictions on the process of judicial reasoning known as the rules of evidence are not uniform in the policy they seek to implement. Note that they are all attributable to policy considerations, and have nothing to do with their value or links in the rational chain of reasoning. They restrict, rather than promote access to potentially useful information. They may be classified according to their underlying policy; they are as under; (a) Structural rules (e.g., rules about the burden and standard of proof, authentication of exhibits), which provides a framework for dealing with evidence at trial. (b) Preferential rules (e.g., the best evidence rule), design to avoid accepting evidence of inferior quality when evidence of superior quality is available. (c) Analytic rules (e.g., the rules against hearsay), desig ns to avoid accepting evidence which experience suggests is likely to be unreliable. (d) Prophylactic rules (e.g., the rules generally excluding evidence of previous convictions), designed to avoid accepting evidence which judge may be incapable of evaluating objectively , or to which the judge may attach undue weight ('Prejudicial evidence'). (e) Simplificatory rules (e.g., The rule permitting summaries of voluminous documents), designs to aid the court in understanding the issues. (f) Quantitative rules (e.g., rules requiring corroboration) designed either positively to insist upon multiple evidential facts to prove certain facts in issue or negatively to prevent the needless presentation of cumulative evidence. (g) Policy-based rules (e.g., privileges), which preclude the acceptance (or compelled revelation) of certain evidential facts, based on extrinsic policy considerations such as upholding confide ntiality , protecting state secrets, etc. (h) Discretionary rules , designed to allow the judge to override the rules of evidence in the interest of justice or expedition. (however , judge cannot allow inadmissible evidence to be brought on record). 9. Depending upon above rules, the evidence by which facts may be proved or disproved in a court is known as judicial evidence. Judicial evidence takes only three forms, namely (i) oral evidence, (ii) documentary evidence and (iii) things. Judicial evidence, however , is open to classification not only in terms of the form in which it may be presented in court but also in terms of its substantive content, the purpose for which it is presented and the rules by which its admissibility is determined. Thus, any given item of judicial evidence may attract more than one of the labels by which the varieties of evidence have been classified. The principal labels are (i) Testimony , (ii) Hearsay Evidence, (iii) Documentary Evidence, (iv) Real Evidence and (v) Circumstantial Evidence. Testimony means direct evidence; hearsay , an indirect evidence; documentary evidence means presentation of facts through documents; real evidence includes material things (like case property); in addition to material objects, including documents, items of real evidence also include the physical appearance of persons and animals, the demeanour of witnesses, the intonation of voices on a tape recordi ng, views, that is inspections out of court s of the locus in quo or of some object which it is impossible or highly inconvenient to bring to court, and, possibly , out-of-court demonstrations or1
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re-enactments of acts or events into which the court is enquiring. Circumstantial evidence means evidence of relevant facts like motive, plans and preparatory acts, capacity , opportunity , identity , continuance, failure to give evidence, failure to provide evidence and standards of comparison. 10. A charge in the court is proved through evidence as defined in Article 2 (c), Qanun-e-Shahadat Order , 1984 (hereinafter called QSO, 1984) which includes "all statements which the Court permits or requires to be made before it by witnesses , in relation to matters of fact under inquiry; such statements are called oral evidence; and all documents produced for the inspection of the Court are called documentary evidence. Depending upon above definition, only the court is authorized to permit or require any witness to depose before it to state the facts in relation to a matter under inquiry and it is done in two ways, either witness volunteers to depose and court permits, or court calls a witness and requires him to depose. In both situations, witnesses depose through facts; A "fact" is defined in Article 2 (d) of QSO, 1984; according to it, "fact" includes (i) anything, state of things, or relation of things capable of being perceived by the senses and (ii) any mental condition of which any person is conscious. The Facts which are open to proof or disproo f in court of law are (i) facts in issue, (ii) relevant facts and (iii) collateral facts. Fact in issue is regarded as "factum probandum" i.e., the principal fact, whereas relevant fact is termed as "factum probans" i.e., the evidentiary fact from which the principal fact follows immediately or by inference, or from which existence or non existence of a fact in issue may be inferred. Collateral facts, sometime referred as 'subordinate facts' are of three kinds: (i) facts affecting the competence of witness (ii) facts affecting the credibility of a witness: and (iii) facts, sometimes called 'preliminary facts' which must be proved as a condition precedent to the admissibility of certain items of evidence tendered to prove a fact in issue or a relevant fact. As to the first, an example would be that a potential witness suffers from a mental handicap rendering him incompetent to testify . An example of collateral fact of the second kind would be that a witness, who testifies to the effect that he saw a certain event at a distance of 50 yards, suffers from an eye complaint which prevents him from seeing anything at a distance of greater than 20 yards. Such a witness may be cross examined about his eye complaint and, if he denies its existence, evidence in rebutta l may be given by an oculist. A collateral fact of the third kind may be illustrated by the reference to an exception to the rule against hearsay: in criminal proceedings a statement made by a participant or an observer of an event is admissible as evidence of the truth of its contents, by way of exception to the rule against hearsay , on proof that it was made at the time of or shortly before or after the event in question in circumstances of such spontaneity or involvement in that event that the possibility of concoction or error can be disregarded. Facts in issue and relevant facts in our law of evidence find their space in QSO, 1984. Article 2 (2) explains relevant fact, it says, "one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of the Order relating to the relevancy of facts." All the facts explained in Article 19 to 69 are regarded as relevant facts. Similarly , Article 2 (3) of QSO, 1984 explains facts in issue, it says, "the expression "facts in issue" includes any fact from which, either by itself or in connection with other facts the existence, non existence, nature or extent of any right, liability or disability , asserted or denied in any suit or proceeding, necessarily follows. Illustration attached to the Article further explains it. 11. As discussed above alongside the facts in issue, evidence of relevant facts and collateral facts be brought on record to complete the picture. Chapter-III of QSO, 1984 titled "OF THE RELEVANCY OF FACTS", deals exhaustively with production of relevant evidence. Article 18 ordains as under; 18. Evidence may be given of facts in issue and relevant facts : Evidence may be given in any suit or proceeding of the existence or non-existe nce of every fact in issue and of such other facts as are hereinafter declared to be relevant and of no others . (Bold & underlined for Emphasize) This Article ordains that evidence could only be given of "fact in issue" and "relevant fact" which commands that QSO, 1984 is an exhaustive statute, evidence could only be given in the manner as permitted by the Order; no other hypothesis how strong or relevant cannot be allowed to bring on record unles s statute ibid permits or accepts it as admissible. Admissibility of evidence is apparently gauged through the words "relevant or irrelevant" used in Articles of QSO, 1984 in the light of specific exclusionary rules which excludes even the relevant evidence. One of the key concepts underpinning the whole of the law of evidence is relevance: irrelevant evidence is not admissible,2 3
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but this does not mean that evidence will be admissible simply because it is relevant; evidence is frequently excluded notwithstanding its clear and obvious relevance to a fact in issue. The requirement of relevance is thus the first hurdle; only if the evidence is relevant is it then appropriate to consider whether it is excluded by some other rule of admissibility . An oft-quoted definition of relevance is to be found in Stephen' s Digest of the Law of Evidence: "The word 'relevant' means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other ." [12th edn, 1948 (revised), London; Macmillan, art 1] In DPP v Kilbourne (1973) , Lord Simon said this: - "Evidence is relevant if it is logically proba tive or disprobative of some matters which requires proof. I do not pause to analyze what is involved in 'logical probativeness', except to note that the term does not of itself express the element of experience, which is so significant of its operation in law, and possibly elsewhere. It is sufficient to say... that relevant (that is, logically probative or disprobative) evidence is evidence which makes the matters which requires proof more or less probable." So, evidence is relevant if it assists in the process of proving or disproving a fact in issue; but where the line is drawn? How does one decide whether the evidence assists in this process or not? There is no fixed answer , except that, as his Lordship indicates, the matter is one of experience. It can be of particular importance in similar fact situations. 12. For the proof of fact in issue, relevant facts are admissible in evidence which have been counted in QSO, 1984. The Article 19 is first in line to throw light on relevancy of facts which says; "Facts, which though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant whether they occurred at the same time and place or at dif ferent times and places" The Article requires to give evidence of facts forming part of same transaction occu rred at the same time and place or at different times and places. A victim stating fact of occurrence to a third person in the form of 'res gestae' is admissible evidence if brought through the testimony of that third person. Reference can be made to case reported as "FAQIR MUHAMMAD versus THE STATE" (PLD 1971 Lahore 929). Even a witness of occurrence deposing before his father what he has seen is also an admissible evidence as opposed to hearsay evidence. Reliance is on case reported as "RIASA T ALI and another versus THE STATE" (PLD 1991 Supreme Court 397). If a fact is explained by the accused before any person, it becomes a relevant evidence, thus admissible, citation in this respect is "C.N. Peters vs The State" (AIR 1959 483) [Allahabad High Court]; similarly , if an accused admits his guilt before a private person, it also becomes admissible evidence. In our law of evidence, such informal admission is known as extra judicial confession regulated under Article 119 (a) of QSO, 1984. To regard a fact as a res gestae evidence, it is essential that it must qualify the characteristics which include (i) Spontaneous exclamation (ii) Contemporaneous physical condition (iii) Present intention (iv) Statement accompanying an act. In this respect case reported as "RIZW AN AKHT AR alias RAZI BAWA and another Versus The STATE" (2021 YLR 2253 ) is referred. This clearly shows that a victim or a witness if states immediately anything which he has observed before, at or after the occurrence in relation to fact in issue or relevant fact to any person, the testimony of that person becomes admissible into evidence. The Hon'ble Supreme Court of Pakistan in a case reported as "Raja KHURRAM ALI KHAN and 2 others versus TAYYABA BIBI and another" (PLD 2020 Supreme Court 146), acknowledged tender years' exception to hearsay rules particularly in rape case. That is the reason when anything is deposed before an investigating officer by the witness or victim, the evidence of investigating officer about such facts becomes admissible and the defence in order to shatter the statement of witness confront him with his previous statement. 13. The evidence of a particular fact is deposed by the very witness as regulated under Article-71 of QSO, 1984; which says; "If it refers to a fact, which could be seen , it must be the evidence of a witness who says he saw it; If it refers to a fact, which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact, which
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could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds" It shows, any relevant fact perceived by senses could only be deposed by the witness who perceived it and no other . All facts which are incidental to main fact or explanatory to it are regarded as relevant facts or collateral facts which can be deposed even carrying status as "res gestae" evidence. Case reported as "MUHAMMAD ASLAM SHAH Versus THE STATE" (1993 PCr.LJ 704) [Peshawar] is referred. What facts could be incidental or explanatory to main fact have very elaborately been counted in QSO, 1984; but following Articles aptly applied in the case in hand: - "Article 21. Motive, preparation and, previous or subsequent conduct: (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. Article 22. Facts necessary to explain or introduce relevant facts : Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue, or relevant fact happe ned, or Which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose." (Bold & underlined for emphasize) A fact which shows preparation of any fact in issue or relevant fact must be allowed to bring on record and similarly if some facts explain further , support or rebut any of the fact in issue or relevant fact could safely be made part of evidence under above permitted provisions. 14. In the light of above discussion, it is vividly clear that the witness Alishba PW-4 when appeared before Nasreen Bibi PW-3, she observed her fainted and a link fact Alishba stated of viewing her father while sleeping with Iqra in naked condition clubs both the facts as part of same transaction encompassing observation of Nasreen Bibi and simultaneous deposition of Alishba; therefore, what Nasreen Bibi observed by her senses could only be deposed by Nasreen herself and none other as required by Article 71 of QSO, 1984. Alishba was also witness of facts touching the preparation of offence as mention in the Article 21 of QSO, 1984 and explanatory to fact in issue as per Article 22 of Order ibid when she had seen her father in a naked condition with Iqra/victim, thus her evidence is also admissible. Determination of admissibility of evidence 15. How to determine admissibility of evidence and when to decide objections if any, is the questions to be met in this part. The first instruction in this regard is found mentioned in High Court Rules and Orders; relevant part of Chapter-1 is reproduced for reference: - PART E -- RECORD OF EVIDENCE IN CRIMINAL CASES 1. Only relevant evidence should be recorded: -- In recording evidence, Magistrates should take care to see that it is relevant and admissible under the provisions of the [Qanun-e-Shahadat, 1984]. If any objection is raised as to the admissibility of any evidence, the Magistrate should endeavour to decide it forthwith and the particular piece of evidence objected to, the objection and the decision thereon should be clearly recorded. 2. Duty of Court to elucidate facts: -- Magistrates should endeavour to elucidate the facts and record the evidence in a clear and intelligible manner . As pointed out in 23 P.R. 1917, a Judge in a Criminal trial is not merely a disinterested auditor of the contest between the prosecution and the defence, but it is his duty to elucidate points left in obscurity by either side, intentionally or unintentionally , to come to a clear understanding of the actual events that occurred and to remove obscurities as far as possible. The wide powers given to the court by * [Article 161 of the Qanun-e-Shahadat, 1984] ***[...] should be judiciously utilized for this purpose when necessary . The statutory provision in this respect is part of QSO, 1984 in the form of Article 131 which is reproduced as under for reference: 131. Judge to decide as to admissibility of evidence: (1) When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant, and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant and not otherwise.
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(2) If the fact proposed, to be proved is one of Which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. (3) if the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. The above Article when read with attached illustrations finally states three situations for admissibility of evidence; Sub-Article (1) deals with admissibility of relevant evidence; Sub-Article (2) talks about conditional admissibility of a fact with undertaking to prove connected or collateral facts; Sub-Article (3) gives discretion to the court in receiving the evidence of first or second fact, in such an arrangement as deems appropriate. Two forms of admissibility are most common to be used to bring on record the relevant evidence which are as follows: Multiple admissibility: where evidence is inadmissible for one purpose, it cannot be excluded if it is admis sible for another . For example, an out of court statement maybe inadmissible for the purpose of proving the truth of its contents, because of the rule against hearsay , but admissible, as original evidence, for the purpose of proving that this statement was made. This principle has been described, somewhat misleadingly , as one of multiple admissibility . Conditional admissibility: an item of evidence, viewed in isolation, may appear to be irrelevant and therefore inadmissible. Taken together with or seen in the light of some other item of evidence, its relevance may become apparent. Evidence, however, can only be given at a trial in piecemeal fashion, by degrees, and it may be impossible to reduce the second item of evidence before the first. In order to overcome this difficulty, the first item of evidence may be admitted conditionally or de bene esse. If, viewed in the light of evidence subsequently adduced, it becomes relevant, it may be taken into account. If, notwithstanding the evidence subsequently adduced, it remains irrelevant, it must be disregarded. 16. Unlike relevance, admissibility has nothing to do with the probative or logical relationship between the evidence tendered and the effect to be proved. Admissibility involves exclusively a determination of whether the law of evidence permits relevant evidence of a particular kind to be received by the court. Some evidence, such as hearsay , is excluded, even though releva nt, because of the danger of unreliability inherent in repeated statements and because it cannot be cross examined on effectively . Confession of accused though relevant yet if recorded while in police custody is not admissible because of the reason it can be procured due to threat, duress or coercion thus regarded as unreliable. Some evidence such as evidence of the previous bad character of…
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