ABSTRACT

The following research project is related to the importance of Independent corroboration of

evidence with an accomplice’s evidence. It is highlight that the Qanoon-e-Shahadat Order 1984
states than an accomplice is a competent witness against the other co-accused and that his
testimony cannot be discarded on the ground that there is no independent corroboration to the
evidence produced. It is also important to mention that under Islamic criminal justice system an
evidence put forth by an accomplice is totally rejected and in its land mark decision the
honorable Federal Shariat Court has not only termed it to be un-Islamic but has also declared it
null and void.

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 Research Statement
A court of law presiding over a criminal trial cannot solely rely upon the deposition of an
accomplice/approver for conviction and should be supplemented by independent corroboration.
Hence Article 16 of the Qanoon-e-Shahdat Order needs to be amended that states accomplice is a
competent witness against a co-accused even without corroboration.

Introduction

The courts in Pakistan have time and again held that corroboration is required in cases where
evidence is put forth by an approver and the apex court of Pakistan has termed it as a rule of
prudence. Though a trial court is empowered with the authority to incriminate an accused solely
on the evidence produced by an approver but many legal impediments stand in the way of
pronouncing a conviction.

In addition to the aforesaid the Character of a witness is also very vital when it comes to placing
reliance upon his testimony. In Islamic Jurisprudence (which is part and partial of Pakistan’s
legal structure and assumes a central role in our national genesis) a witness is only considered
competent if he is religiously and morally upright person.

Objective of Research
This project is an attempt to determine the role of approver/accomplice in a criminal trial that
whether in today’s criminal jurisprudence which has developed over a period of time, sole
testimony of an approver is enough to incriminate an accused or whether independent
corroboration is required.

Accomplice under the perspective of Islamic Jurisprudence

Islamic law lays down certain qualifications and requirements for a witness. It is quite
eminent that an accomplice is nowhere near those requirements and as per the rules ordained in
Islaimc law he becomes a fasiq.1 As per Holy Quran evidence must be given for Allah
Almighty.2 Hence Islamic justice is something higher from formal justice of Roman law or any
other human law.3 The federal Shariat Court interpreted verse number 112 of Surrah “al-Nisa”
1
Id..
2
1, THE HOLY QURAN (KANZ-UL-IMAN), Chapter 4 Verse 130, (Ahmed Raza Khan Barelvi, trans, 2011)
3
Hussain v Government of Pakistan (1991) 2PLD (FSC) 139 (PAK.)

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 and said that this verse refers to the concept of an approver where Allah says“anyone who earns
a fault or a sin and throws their fault or sin on those who may not be a sinner he carries
falsehood and a flagrant sin”.So this means that approvers do not only carry falsehood but a
flagrant sin and due to this reason their evidence is not considered as true. 4 The term Khain also
holds immense importance in our prospective and means a person who betrays trust. Allah in the
Holy Quran has disliked such a person whereas as per the tradition of HIS EXCELLENCY THE
PROPHET (‫ )ﷺ‬his evidence is inadmissible. 5 It was cited that an approver
may have some enmity against the other accused and as per the tradition of THE PROPHET (
‫ )ﷺ‬such evidence having enmity is inadmissible.6

As per Hazart Umar Bin Abdul Aziz, who is generally regarded as the fifth righteous
guided caliph, evidence must come from a person who is not an accused. 7The only source of
corroboration that was seen by the court in this regard was as per verse no. 13 of Surrah “Al-
Hujarat” where it is established that if a “wicked person comes to you with any news ascertain
the truth”. Hence the rule enshrined under article 16 finds no place under Islamic Law. 8 In this
regard the Muhammad Aslam v. the State9 can be cited as a guiding principle.

Accomplice
The term accomplice has been defined by the Pakistani courts as one who is a partner or has a
relation to the crime committed and is jointly implicated with another accused, it also indicates
that the offenders were ()more than one. 10 It has been defined under the US law as one who
actively participates in the commission of offence with intent.11

The word ‘accomplice’ has not been defined by Qanoon-e-Shadat Ordinance, 1984. An
accomplice is one who is guilty associates or partners in the commission of crime or who admits
that he has a conscious hand in the commission of crime.

4
Id.
5
Id.
6
Id.
7
Id.
8
Id.
9
Alam v Riyasat (1983) SCMR 1127 (PAK.)
10
Hussain and others v Government of Pakistan And others (1991) 2 PLD (FSC) 139(PAK.)
11
74 U.S. (1 Dalls)

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 Article-16 of Qanoon-e-Shahadat Ordinance,1984 deals with Accomplice Witness. It says that an
accomplice shall be competent witness against an accused person, and conviction is not illegal
merely because it proceeds upon the uncorroborated testimony of an accomplice.

Accomplice under Pakistan’s legal system

Article 16 of the Qanoon-e-Shahadat Order 1984 is the basic law that deals with the concept of
an accomplice. It is enshrined under the article that an accomplice is a competent witness against
the other co-accused even without corroboration. Though it is provided under the illustrations of
article of 129 (b) than an accomplice is unworthy of credit hence material corroboration shall be
there.

There seems to be a contradiction in between article 16 and illustration (b) provided under article
129 of the Qanoon-e-Shahdat Order 1984. The courts in this regard have held that the former is a
provision of law whereas the later is a rule of prudence. 12 The courts in Pakistan have not only
gone for independent corroboration but have also convicted accused’s on the sole testimony of
an accomplice.

Independent Corroboration
The term independent corroboration means literally that something is free from the influence of
anything, it also means self-governing.13 It shall also be kept in mind that this independent
corroboration is to be differentiated from independent clause which means a clause that explains
itself.14

CORROBORATION

‘Corroboration’ does not mean that there should be independent evidence of all the facts which
have been related by an accomplice. To count as corroboration, it is not enough that a piece of
evidence merely supports that the accomplice is credible but it must go a little further and
implicate the accused. The corroboration of an accomplice is of two kinds:

1. Corroborating evidence which ensures that approver is trustworthy.

12
Shahbaz Ahmed Cheema, Corroborating evidence in Pakistan, A Mechanism to fill relaiablityvaccum, SSRN. 11
13
1, Victoria Neufeldt, David B. Guralnik, Webster’s New World Collage dictionary, 686, 3rd, (1997)
14
Id..

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 2. It arises for conclusion to the corroborating in material particulars not only of the
commission of crime but also of complicity of other accused persons in the crime.

gone for independent corroboration but have also convicted accused’s on the sole testimony of
an accomplice.

Corroboration of evidence produced by an accomplice

Corroboration of accomplice’s evidence with Hearsay evidence

Another important question arises in front of us and that is that whether evidence
produced by an accomplice can be corroborated with the hearsay evidence.

It was held by the court that any hearsay statement produced by an accomplice cannot be
produced against an accused person but can be made a tool to corroborate or to impeach a
witness’s credit but in no case they are substantive piece of evidence.15

Recovery and Corroboration

It has been held that recovery of articles connected with offence are sufficient enough to
corroborate with an the evidence produced by an accomplice. 16 It was also upheld by the courts
that if the deceased was last seen by with the accused and a blood stained hatched was recovered
at the instance of the accused that would constitute corroboration. 17 It has also been taken into
consideration by the courts that where an approver was corroborated by the production of
weapon used in the offence for killing and other similar evidence then that would constitute
sufficient corroboration.18

Recording of statement under the Code of Criminal Procedure,1898

Under chapter XXIII of the code of criminal procedure namely general provisions as to
inquire and trials a detailed concept tender of pardon to an accomplice is given, sections varying
from 337 to 339-A deal with this concept. It is stipulated within these section that in any trial of
whose punishment may extend to 10 years or is punishable under section 211 of the Pakistan
Penal Code or section 216-A, 369, 401, 135, 477-A, the prosecution at any stage of trial to obtain
15
(1928) AIR (Lah.) 681 (IND.)
16
(1923) AIR (Lah.) 389 (IND.)
17
(1957) 2 PLD (Lah.) 1023 (PAK.)
18
(1959) 2 PLD (Lah.) 115 (PAK)

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 evidence may tender a pardon to a person who directly or indirectly took part in the commission
of that offence. This tender of pardon is on the count that that he makes full and true disclosure
of the circumstances as per his knowledge but this pardon is restricted to the permission of the
heirs of the victim in cases related to Qatl and hurt. 19 It is also enshrined that once pardon is
tendered reasons shall be recorded in this respect meaning that it shall be a speaking order. A
person tendered pardon shall be examined as a witness and that if the person is on bail he then he
shall be detained till the conclusion of trial.20

It is important to highlight that it is upon the discretion of the court to tender pardon to
any person whereas if the accused has been pardoned by the prosecution or the competent
authority that cannot be challenged.21

Bhutto Case in contradiction with Cr.P.C

No accomplice can be made in Hudood and Criminal cases unless and until there is
corroboration of an evidence to punish the accused. But Judgment in Zulfiqar Ali Bhutto case is
in contradiction with this point.

In the case of Zulfiqar Ali Bhutto v. The State [ CITATION fin \l 1033 ] former premier of Pakistan
Mr. Zulfiaqr Ali Bhutto was convicted and later hanged on the testimony of an accomplice
though as per Mr. Justice Durab Patel the rest of the case merely rested on nothing else but
heresay evidence which in terms of law and under article 71 of the Qanoon-e-Shahadat Order
1984 (at that time it Evidence Act 1872 was in field) holds no legal worth.

Recommendations and Conclusion

In view of what has been discussed in the foregoing paras one is forced to see that independent
corroboration is necessary whenever an accomplice put forwards his evidence before the court as
a prosecution witness. It is therefore a dire need of the time that certain recommendations shall
be given in regards to the existing evidence law of Pakistan i.e The Qanoon-e-Shahadat Order
1984.

19
PAK. CODE THE CODE OF CRIMINAL PROCEDURE, Section 337, (1898)
20
Id..
21
Mushtaq v The State (2005) Part III YLR 1728 (PAK.)

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The term independent corroboration be added in the existing article of the
Qanoon-e-Shahadat Order 1984.
In view of what has been discussed above it is the dire need of the time that the term independent
corroboration be added within the Qanoon e Shahadat Order. It is vital to add because as we have
discussed above that the courts in Pakistan have considered it safe to convict an accused on the
sole testimony of an accused whereas on the in the other legal regimes it has not only been
termed as dangerous but some legal regimes have totally and wholly rejected this concept. It
would be on the safer side to add this term within the legal spectrum because conviction then
would be on the safer side. In this the cardinal principle of criminal law will also prevail which
states that accused is the blue eyed child of the court.22

Existing article be brought within the Ambit of Quran and Sunnah as

per article 227 of the Constitution of Pakistan
Under article 227 of the Constitution of Pakistan it is mandatory upon the state to bring all
exsisting laws within the ambit of Injunction provided in the Holy Qurran and Sunnah of the
PROPHET. Judiciary is organ through which laws enacted by the legislature are interpreted,
though interpretation of statute may vary from time to time. The Supreme Court of Pakistan has
also termed itself as “Uolel Amar” means the one whom is to be followed. A detailed discussion
by the federal shariat court has been discussed already where the court has termed it as a Khyan
one who betrays trust. They have also made the verse of the Holy Quran a part of their judgment
where it is stipulated that if information is brought to you by a Khayn then you must check it
from other sources. They have not declared the article under discussion repugnant to Islam
whereas they have also declared sections varying from 337-339-A of the code of criminal
procedure repugnant to the Injunctions of Islam.

22
Hussain v. The State(1999) 2 PLD(SC) 504 (PAK.)

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