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Sadia Riaz, Assign 03 Evidence Law II
Sadia Riaz, Assign 03 Evidence Law II
MODERN TECHNOLOGIE
TABLE OF CONTENTS
LIST OF ACRONYMS.............................................................................................................ii
ABSTRACT.............................................................................................................................iii
1. INTRODUCTION...............................................................................................................1
5. ANALYSIS ………….………………………………………………………………………………………………………….8
5. RECOMMENDATIONS...................................................................................................10
6. CONCLUSION..................................................................................................................10
7. BIBLIOGRAPHY..............................................................................................................11
i
ii
LIST OF ACRONYMS
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,
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
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
“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,
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
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,
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.
ISLAMIC LAW
In Islamic law circumstantial evidence is defined as, Al-qarain. "Al-qarain in its literal meaning
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)
“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
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
administer justice.
processes as circumstantial evidence which include: the result of an autopsy on the dead body,
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
LAW
Evidence but in case of Hudud and Qisas, cases and FSC25 also consider DNA
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.
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
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
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
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
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
There must be a legislation regarding those individuals who are involved in tempering the
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
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.).
State v. Tariq Aziz MNA and 6 others, (2000) SCMR 751 (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).
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. &
Paridhi Selvan & Ms. Roja. K, A Critical Study of Admissibility of Evidence, 120 INT’L J. of
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).
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
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