RELEVANCY OF CIRCUMSTANTIAL EVIDENCE UNDER THE

MODERN TECHNOLOGIE

TABLE OF CONTENTS

LIST OF ACRONYMS.............................................................................................................ii

ABSTRACT.............................................................................................................................iii

1. INTRODUCTION...............................................................................................................1

2. RELEVANCY OF FACTS AND THEIR ADMISSIBLITY..............................................1

2.1. Circumstantial Evidence...............................................................................................2

2.2. Weight of Circumstantial Evidence..............................................................................2

2.3. Technological Circumstantial Evidence & Its Admissibility.......................................3

3. ADMISSIBILITY OF CIRCUMSTANTIAL EVIDENCE UNDER ISLAMIC LAW......4

3.1. Admissibility of modern technology as a means of proof under Islam........................6

4. COMPARISON BETWEEN ISLAMIC LAW AND PAKISTAN’S LAW.......................7

5. ANALYSIS ………….………………………………………………………………………………………………………….8

5. RECOMMENDATIONS...................................................................................................10

6. CONCLUSION..................................................................................................................10

7. BIBLIOGRAPHY..............................................................................................................11

i
ii
LIST OF ACRONYMS

ANP Awami National Party

CCTV Closed Circuit Television

DNA Deoxy Ribonucleic Acid

FSC Federal Shariat Court

GPS Global Positioning System

PBUH Peace be upon him

QSO, 1984 Qanun-e-Shahadat Order, 1984

SC Supreme Court

& And

iii
ABSTRACT

Circumstantial evidence as against the direct evidence is the inference that helps in creating a

picture of the incident or crime, leading the judge or jury to a valid conclusion. In Pakistan,

Courts laid down conditions for admissibility of circumstantial evidence. In new era as there is

advancement in Science and technology, it also impacts judicial system and mode of proof. So,

this research focuses on whether Technological Circumstantial evidence as a modern means of

proof admissible in a court of law in Pakistan and in Islamic Law.

iv
 1. INTRODUCTION

Aliya is married with Ahmed and live happily but after 4 months of their marriage, she found

dead in her bedroom at 10:00PM, when her husband is in Office. No one is present at the time of

incident because that they were living separately from rest of their family in an Apartment.

During investigation Police found a glove near dead body of Aliya and another glove was found

in a car of her husband having blood stains. As there is no eyewitness, so for proving Ahmed a

murderer of Aliya the case depended solely on circumstantial evidence. The evidence is

produced before a court is either direct or indirect to prove a fact in issue or relevant facts. As per

Article 2(3) of QSO 1984, "Facts in issue are facts out of which some legal right, liability, or

disability, involved in the inquiry, necessarily arises, and upon which, accordingly, decision must

be arrived at."1whereas, relevant facts are those facts which are in the eye of law so connected

with or related to the facts in issue that they render the latter probable or improbable.2

2. RELEVANCY OF FACTS AND THEIR ADMISSIBLITY

Article 18 to 69 of QSO 1984, deals with relevancy of facts and the most important Article 18 to

29 which explains about the facts that form part of same transaction such as occasion, cause,

effect, motive, preparation, previous or subsequent conduct etc. are relevant facts. QSO 1984

also make confession, admission, and character of a person relevant which varies from case to

case. As regards the admissibility of facts, it helps in deciding whether a relevant piece of

evidence will help in concluding a case because it is based on law and not logic. It is a question

of law and decided by a judge as per Article 131 of QSO 1984. The main difference between two

1
The Qanun-e-Shahadat Order, 1984, 10 of 1984. Gazette of Pakistan (1948).
2
IQBAL AHMED AWAN, QANUN-E-SHAHADAT, 1984, 18 (Mansoor Book House, 2017-2018).

1
is that admissibility of evidence strictly based on law whereas relevancy is based on logic and

probability.3

2.1. Circumstantial Evidence

“An item of circumstantial evidence is an evidentiary fact or relevant fact from which an

inference may be drawn rendering the existence or non-existence of a fact in issue more

probable. The fact in issue is not proved by a witness relating what he directly perceived. So

circumstantial evidence is indirect evidence.”4 So, these are the inferences that helps in creating a

picture of the incident or crime, leading the judge or jury to a valid conclusion. Examples include

motive, Knowledge, capacity, preparatory acts, previous conduct, DNA test, bodily samples,

tracker dogs etc.5

2.2. Weight of Circumstantial Evidence

Circumstantial evidence is of many types, some of which are persuasive and convincing, while

others have very little probative value. Therefore, prudence must be taken to admit only those

which are highly probative and cogent to satisfy court beyond reasonable doubt of the guilt of the

accused.6That evidence can support a case as much as direct evidence if it is substantial. As

evidence, the only difference is in that as proof, the former directly establishes the commission

of the offence whereas the latter does not so by placing circumstances which lead to irresistible

inference of guilt.7 The conditions laid down by SC for convicting a person on basis of

circumstantial evidence are: The circumstances from which the conclusion of guilt is to be drawn

3
Paridhi Selvan & Ms. Roja. K, A Critical Study of Admissibility of Evidence, 120 INT’L J. OF PURE & APPLIED
MATHEMATICS, 1169, 1173 n. 5 (2018).
4
RAYMOND EMSON, EVIDENCE, 10 (5th ed., 2010).
5
Sowed Juma Mayanja, Circumstantial Evidence and its Admissibility in Criminal Proceedings: A Comparative
Analysis of the Common Law and Islamic Law Systems, 67 J. OF L. POL’Y & GLOBALIZATION, 26, 27 n. 1 (2017).
6
Id at 32.
7
PLD (1989) Peshawar 86 (Pak.).

2
should be fully established, all the facts should be consistent with the hypothesis and there must

be a chain of evidence furnished by those circumstances must by so far complete as not to leave

reasonable ground for a conclusion consistent with the innocence of the accused. 8 After

establishing admissibility, the question is that what the modes of collecting circumstantial

evidence are. Though circumstantial evidence can be established through testimony of witness

but use modern technology is very helpful and acceptable in many jurisdictions along Pakistan

for collection of circumstantial evidence, such as DNA test, Fingerprints, electronic Evidence,

Forensic science, etc.

2.3. Technological Circumstantial Evidence and Its Admissibility

As per Article 164 of QSO 1984, the court could allow and use any evidence that was available through

modern devices or techniques,9 which makes it admissible in a court of law. Modern technology include

audio, video cassettes, DNA tests, fingerprint scanning, Computer database systems, GPS tracking and

forensic science technologies that are based on expert interpretations. 10Their admissibility is established

through well-settled precedents of SC. In 1976, sedition charges brought against ANP by Bhutto

government where tape records of speeches and Reports of foreign broadcasts were admitted in evidence

after satisfied that the officer who recorded such speeches could identify the voice of person speaking. 11In

SC Storming case, video recordings of CCTV Camera admitted as circumstantial evidence because there

is no eyewitness for giving testimony against accused persons. 12 FSC in 2010 held that, "Under Article

164 of QSO, 1984 Court might allow to be produced any evidence available because of modern devices

or techniques. Holy Quran and Sunnah did not forbid employing scientific or analytical methods in

discovering the truth. On the contrary the discovery and investigation had been strongly recommended by

8
PLD (1958) (SC) 290 (Pak.), PLD (1986) (SC) 690 (Pak.).
9
The Qanun-e-Shahadat Order, 1984, 10 of 1984. Gazette of Pakistan (1948).
10
Dr. Muawiya Dahiru Mahmud & Attahir Shehu Mainiyo, Islamic Law in Modern World: Using Technology in
Islamic Criminal Justice System, 8 J. OF RES. IN HUMAN. & SOC. SCI., 1, 2 n. 3 (2017).
11
Islamic Republic of Pakistan v. Abdul Wali Khan, PLD (1976) (SC) 57 (Pak.).
12
State v. Tariq Aziz MNA and 6 others, (2000) SCMR 751 (Pak.).

3
the Holy Quran and Sunnah. Courts in matters relating to Offence of Zina (Enforcement of Hudood)

Ordinance, 1979 had all the powers to permit receptions of evidence including the resort of DNA test, if

demanded by occasion".13 In Judge Arshad Malik case, SC laid down conditions for admissibility of audio

or video as a modern technology that: the accuracy of the recording can be proved and the voices

recorded properly identified, such evidence should always be regarded with some caution, assessed in the

light of all the circumstances of each case and forensic expert opinion is necessary to satisfy the court that

it is not fabricated.14 In Ammar Yasir Ali v. The State, court held that, “mere producing of CCTV video as

piece of evidence and its watching in open court was not sufficient to be relied unless and until

corroborated and proved to be genuine. 15 In M. Aslam v. State, Court observed that DNA test was almost

a conclusive proof of one’s identity.16 But in another case, court is of view that, “DNA test provides

courts a mean of identifying perpetrators with a high degree of confidence. By using DNA as modern

technology courts were in better position to reach at a conclusion whereby convicting real culprits but

same cannot be considered as conclusive proof and require corroboration from other pieces of evidence. 17

In Tanveer v. the State, court observe that the credibility of the DNA test as modern technology

depends on the standards employed for collection and transmission of samples to the laboratory.

Safe custody of the samples is pivotal, the chain of custody was unbroken, unsuspicious,

indubitable, safe and secure. Any break in the said chain or lapse in the control of the sample

would make the DNA test report unreliable.18 In another case, court held that once the forensic

science agency confirms that there is no editing then modern devices independently provides a

wide mechanism to bring on record evidence through visual, audio, digital, sonic or biological

and other means on the basis of information as a circumstantial evidence capable to establish or

negate any fact in issue, certainly subject to integrity of the procedure/process, duly qualified in
13
PLD (2010) (FSC) 215 (Pak.).
14
Ishtiaq Ahmed Mirza v. Federation of Pakistan, CONST. Petition no. 10, 11, 12 of 2019.
15
Ammar Yasir Ali v. The State, (2013) PCr. LJ 783 (Pak.).
16
Muhammad Aslam Khan v. State, (2008) PCr. LJ 1623 (Pak.).
17
(2013) SCMR 203 (Pak.), PLJ (2013) (SC) 407 (Pak.), PLD (2009) (SC) 542 (Pak.).
18
Tanveer v. The State etc. (2019) LHC 4305 (Pak.).

4
the case. But the credibility of Forensic expert must be established for relaying upon his

report.19In all these precedents courts laid down conditions for admissibility of modern devices and

needs expert opinion as per Article 59 of QSO, 198420 in order to gain accuracy regarding that evidence.

3. ADMISSIBILITY OF CIRCUMSTANTIAL EVIDENCE UNDER

ISLAMIC LAW

In Islamic law circumstantial evidence is defined as, Al-qarain. "Al-qarain in its literal meaning

means connection, conjunction, relation, union, affiliation, linkage or association. Technically,

qarinah means any sign, proof or evidence which is circumstantial in nature which may

corroboratively give a definitive impression of an occurrence of any relevant fact or any fact in

issue in a case." All four Scholars have accepted and recognized qarinah as one of means of

proof and basis for this is Quran, Hadith, and practice of companion. In Quran Allah says, “They

stained his shirt with false blood. He said: “Nay, but your minds have made up a tale (that may

pass) with you. (For me) patience is most fitting: against that which ye assert, it is Allah (alone)

whose help can be sought”.21

“So, they both raced each other to the door, and she tore his shirt from the back: they both found

her lord near the door. She said: “What is the (fitting) punishment for the one who formed an evil

designed against thy wife, but prison or grievous chastisement?” He said: “It was she that sought

to seduce me from my (true) self.” And one of her household saw (this) and bore witness, (thus)

“If it be that his shirt is rent from the front, then is her tale true, and he is a liar!” “But if it be that

his shirt is torn from the back, then is she the liar, and he is telling the truth."22

19
Yasir Ayyaz v. the State, (PLD (2019) Lahore 366 (Pak.).
20
The Qanun-e-Shahadat Order, 1984, 10 of 1984. Gazette of Pakistan (1948).
21
Al -Quran 12:18.
22
Al-Quran 12:25-27.

5
 In fact, from these two verses, qarinah found its primary source. Prophet Muhammad

(PBUH) also recognized circumstantial evidence as a source of proof in many cases. He had

once decided on paternity of someone based on qiyafah. Qiyafah is a method of proving nasab or

paternity based on resemblances and similarity features between one over another. In modern

practice, qiyafah may be equated or further expanded with the usage of DNA analysis. Although

there is no dispute among Muslim Scholars about using qarinah in Tazir or Siyasah but there is a

difference of opinion regarding proof of Hudud or qisas Offences by qarinah because qarinah is

based on doubt and doubt defeats Hadd. Imam Hanafi and Shafi totally rejects the use of qarinah

in either hudud or qisas offences. Imam Malik partly accepted qarinah in proving hudud only on

selective offences like pregnancy of unmarried women or smell of liquor from the accused and

Modern Islamic Scholars takes more liberal approach by recognizing qarinah in all cases

including hudud and qisas. According to Anwarullah, they argued that evidence from testimony

by witness is sometime more susceptible to concoction and fabrication. So, qarinah may be more

compelling and stronger than Shahadah and Iqrar because the real fact does not tell lies. They

support their stance on several decisions during the period of Caliph Umar, who in one of his

sermons explained that: “I have found Obaidullah smelling of a drink and I am going to inquire

about the nature of the drink if I find it intoxicating, I will flog him with hudud.” Caliph Uthman

had also been reported imposing hudud punishment towards Al-Walid B. Utbah when there were

witnesses who saw him drinking khamr and vomiting. Although all Islamic /scholars recognized

applicability of Al-qarinah, but they have different opinion with regards to the detailing features

before such evidence could be accepted.23

23
M. Munzil bin M & Ahmad Azam M. Shariff, Qarinah: Admissibility of Circumstantial Evidence in Hudud and
Qisas Cases, 6 MEDITERRANEAN J. OF SOC. SCI., 141,142-144 n. 4 (2015).

6
 3.1. Admissibility of modern technology as a means of proof under Islam

The present day forensic evidence, being a type of expert opinion (al-ray al-khabir), draws

support for its legitimacy and use in Islamic law from the Prophet's tradition, companions

consensus, and interpretation of the jurists in today's criminal proceedings are heavily dependent

on forensic sciences. Mainly, because every criminal prosecution, from the stage of investigation

until the end of the trial requires the experts help from a variety of disciplines, such as medicine,

psychiatry, anthropology, electronic media, ballistics, DNA testing, etc. In the sunnah, the most

basic law pertaining to the accommodation of every useful means of proof, including forensic

evidence, is founded in a hadith in which the Prophet Muhammad (PBUH) declared that “human

technical knowledge and expertise, and not the revelation, are to constitute the foundation of

evidence and proof.” This is clear from his famous dicta when he said: "Since I am only a

human, like all of you, I might, when litigants come before me to decide between them, rule in

favor of more eloquent of them. If I thereby transfer to him what is rightfully his brother's, I

warn him to take not that which is not his, or I shall reserve for him a piece of Hell."27 This

hadith that the matters of evidence and proof belong to human affairs and its simplicity, or

complexity, progressively depends on human advancement in the field of technical knowledge to

administer justice.

Another contemporary thinker, Professor Anwarullah, classifies several forensic

processes as circumstantial evidence which include: the result of an autopsy on the dead body,

identification by tracks, footprints, finger impressions, handwriting, blood stains, marks of

injuries, marks of violence about the genitals on the body of a rape victim, and possession of

7
incriminating objects, such as the weapon of the offence, and other trace evidence, such as tire

and radiator marks on the victim's body and clothing in a case of a hit and run accident.24

4. COMPARISON BETWEEN ISLAMIC LAW AND PAKISTAN’S

LAW

Features Islamic Law Pakistan’s Law

Admissibility of Circumstantial evidence is known Circumstantial evidence is an

Circumstantial as Qarinah and admissible as admissible piece of evidence after

Evidence Evidence. establishing its relevancy.

Use of Modern There is a unanimous opinion of all SC establish admissibility of use of

Technology as Muslim Scholars that Modern modern technology as

Circumstantial Technology is admissible in Tazir circumstantial evidence in many

Evidence but in case of Hudud and Qisas, cases and FSC25 also consider DNA

there is a different view of most of test a modern means of proof

jurists. admissible piece of circumstantial

evidence in its judgment under

Hudud and Qisas.

Weight of Majority consider it as probable In SC judgments it is considered as

Circumstantial piece of evidence, but minority of probable value. It needs

Evidence consider it as conclusive proof in corroboration.

absence of strong evidence.

Conditions laid Before convicting a person on basis This type of evidence must be

down for of Circumstantial evidence, its corroborated through other piece of

admissibility accuracy, and truthfulness must be evidence for convicting a person

24
Sayed Sikandar Shah Haneef, Modern Means of Proof: Legal Basis for Its Accommodation in Islamic Law, 20
ARAB L. Q., 334, 334-364 n.4 (2006). www.jstor.org/stable/27650561.
25
PLD (2010) (FSC) 215 (Pak.).

8
 through established through corroboration solely on it.

precedents for removing slightest doubt.

5. ANALYSIS

The Muslim world is not different from rest of world and most of Islamic countries use modern

technologies in Criminal Justice System based on Shariah Law. It is evident from this that in

Malaysia, the entire court administration is digitalized, its crime solving agency runs

considerable number of crime laboratories of modern standard. In Indonesia, forensic speaker

identification evidence is accepted as legal evidence. In Egypt, DNA test is acceptable form of

evidence. So, most of Arab countries consider circumstantial evidence obtained through modern

technology as of decisive evidence.26 Whereas in Pakistan, Courts use modern technology as a

means of proof, but there is a need of specific law regarding their safe presentation,

establishment of highly equipped Forensic laboratories and specialized expert for obtaining

100% accurate forensic reports.

6. RECOMMENDATIONS

 Although SC accept technological circumstantial evidence and laid down condition for

admissibility but there must be a specific provision in procedural laws regarding its

admissibility as per facts of case.

 There is a need of highly equipped forensic laboratories and specialized forensic experts

for accurate forensic reports. So that no one can challenge their accuracy and courts can
26
Dr. Muawiya Dahiru Mahmud & Attahir Shehu Mainiyo, Islamic Law in Modern World: Using Technology in

Islamic Criminal Justice System, 3 J. OF RES. IN HUMAN. & SOC. SCI, 1, 4 n. 8 (2015).

9
 easily and without any delay consider technological circumstantial evidence as

admissible and conclusive piece of evidence.

 There must be a legislation regarding those individuals who are involved in tempering the

evidence which creates hurdles for acceptance of these evidence in courts.

7. CONCLUSION

Both Islamic Law and QSO, 1984 contains sufficient legal basis for the adoption of modern

means of proof. Forensic evidence, electronic evidence etc. is admissible piece of evidence if

unaltered and uncontaminated from time of capturing, receiving until deposition before the court,

and is consistent with other circumstances of the case. But it is still an issue under controversy

that as to what extent our judicial system has followed modern means of proof which are now

demand of the modern evidence. In whole world, evidence collected through forensic methods

has evidentiary value and courts attaches' weight to such evidence without following other

evidence of any kind. Moreover, these scientific methods under modern evidence have not only shortened

the trial but enabled the Court to decide alone on that evidence without recourse of any other source of

evidence.

8. BIBLIOGRAPHY

8.1. Statute

The Qanun-e-Shahadat Order, 1984, 10 of 1984. Gazette of Pakistan (1948).

8.2. Cases

10
Ammar Yasir Ali v. The State, (2013) PCr. LJ 783 (Pak.).

Ishtiaq Ahmed Mirza v. Federation of Pakistan, Constitution Petition no. 10, 11, 12 of 2019.

Islamic Republic of Pakistan v. Abdul Wali Khan, PLD (1976) (SC) 57 (Pak.).

Muhammad Aslam Khan v. State, (2008) PCr. LJ 1623 (Pak.).

PLD (1989) Peshawar 86 (Pak.).

PLD (1958) (SC) 290 (Pak.).

PLD (1986) (SC) 690 (Pak.).

PLD (2010) FSC 215 (Pak.).

PLJ (2013) (SC) 407 (Pak.).

PLD (2009) (SC) 542 (Pak.).

State v. Tariq Aziz MNA and 6 others, (2000) SCMR 751 (Pak.).

Tanveer v. The State etc. (2019) LHC 4305 (Pak.).

Yasir Ayyaz v. the State, (PLD (2019) Lahore 366 (Pak.).

(2013) SCMR 203 (Pak.),

8.3. Books

Al -Quran 12:18

Al-Quran 12:25-27

IQBAL MAHMOOD AWAN, QANUN-E-SHAHADAT ORDER, 1984 (Mansoor Book House, 2017).

RAYMOND EMSON, EVIDENCE, 10 (5th ed., 2010).

8.3. Journal Articles

11
Sowed Juma Mayanja, Circumstantial Evidence and its Admissibility in Criminal Proceedings:

A Comparative Analysis of the Common Law and Islamic Law Systems, 67 J. of L., POL’Y. &

GLOBALIZATION, 26, 27 n. 1 (2017).

Paridhi Selvan & Ms. Roja. K, A Critical Study of Admissibility of Evidence, 120 INT’L J. of

PURE & APPLIED MATHEMATICS, 1169, 1173 n. 5 (2018).

Dr. Muawiya Dahiru Mahmud & Attahir Shehu Mainiyo, Islamic Law in Modern World: Using

Technology in Islamic Criminal Justice System, 8 J. of RES. in HUMAN. & SOC. SCI., 1, 2 n. 3

(2017).

M. Munzil bin M & Ahmad Azam M. Shariff, Qarinah: Admissibility of Circumstantial

Evidence in Hudud and Qisas Cases, 6 MEDITERRANEAN J. OF SOL. SCI, 141, 142-144 n. 2

(2015).

Sayed Sikandar Shah Haneef, Modern Means of Proof: Legal Basis for Its Accommodation in

Islamic Law, 20 Arab L. Q., 334-364 n. 4 (2006). www.jstor.org/stable/27650561.

Dr. Muawiya Dahiru Mahmud & Attahir Shehu Mainiyo, Islamic Law in Modern World: Using

Technology in Islamic Criminal Justice System, 3 J. OF RES IN HUMAN. & SOC. SCI, 1, 4 n. 8

(2015).

12