Asad Thesis Final IA

LEGAL-VALUATION OF ACCOMPLICES’ DEPOSITION IN
CRIMINAL JURISPRUDENCE AND THE ESSENTIALITY OF
INDEPENDENT CORROBORATION
Supervised by: Madam Malieka Farha Deeba
Group Members
Muhammad Asad Abbas Raja (01-177131-048)
Fakhar Abbas (01-177131-006)
AhmarJarral (01-177131-018)
Date of Submission: 08-12-2017
Department of Law
Bahria University Islamabad

Table of Contents
SUPERVISOR’S APPROVAL.................................................................................................................... iii
DECLARATION OF ETHICAL CONDUCT IN RESEARCH .................................................................. iv
PLAGIARISM REPORT .............................................................................................................................. v
ACKNOWLEDGMENT.............................................................................................................................. vi
DEDICATION ............................................................................................................................................ vii
TABLE OF CASES ................................................................................................................................... viii
ABSTRACTS .............................................................................................................................................. xi
Title for Research Project ............................................................................................................................. 1
Research Statement ....................................................................................................................................... 1
Introduction ................................................................................................................................................... 1
Literature Review.......................................................................................................................................... 4
Objective of Research ................................................................................................................................... 8
Research Questions ....................................................................................................................................... 8
Research Methodology ................................................................................................................................. 9
CHAPTER 1: Difference in between a General Witness and an Accomplice. ........................................... 10
1.1 Witness in General: ..................................................................................................................... 12
1.2 Witnesses under Islamic Jurisprudence ...................................................................................... 13
1.2.1 Witness under the Pakistani legal system ........................................................................... 15
1.3 Witness under Common Legal System (Credible witness)......................................................... 16
1.4 Accomplice ................................................................................................................................. 19
1.4.1 Independent Corroboration ................................................................................................. 20
1.4.1.1 Corroboration ...................................................................................................................... 21
1.4.1.2 Independent witness and Accomplice ................................................................................. 23
1.4.2 Accomplice under Indian Law ................................................................................................... 23
1.4.3 Accomplice under Pakistan’s legal system ................................................................................ 24
Chapter 2: Rules of Corroboration and the necessity of Independent Corroboration. ................................ 27
2.1 How corroboration takes place. ........................................................................................................ 28
2.1.1.1 Corroboration of evidence produced by an accomplice .......................................................... 31
2.1.1.2 Corroboration of accomplice’s evidence with Hearsay evidence ........................................... 31
i
2.1.1.3 Recovery and Corroboration ................................................................................................... 31
2.1.1.4 Material points suggesting link between crime and accused. ................................................. 32
2.1.2 Nature and extent of corroboration ............................................................................................ 32
2.2 Corroboration of accomplice’s evidence under The Police Rules 1934. .......................................... 33
2.2.1 Procedure of Recording ............................................................................................................. 34
2.3 Recording of statement under the code of criminal procedure 1898. ............................................... 35
2.3.1 Difference in between statements recorded under section 164 and 337 of the Code of Criminal
Procedure 1898. .................................................................................................................................. 36
2.3.2 Can an approver be tried again as an accused or Post trial Status.............................................. 37
2.4 Accomplice under the perspective of Islamic Jurisprudence. ........................................................... 37
2.5 Principles of corroboration under Common law. .............................................................................. 39
2.6 Pakistani courts and Accomplices and the Test cases. ...................................................................... 39
2.7 Quantum of Sentence on an approver’s deposition........................................................................... 41
2.8The Importance & Vitality of Independent Corroboration ................................................................ 42
Recommendations and Conclusion ............................................................................................................. 46
The term independent corroboration be added in the existing article of the Qanoon-e-Shahadat Order
1984. ....................................................................................................................................................... 46
Existing article be brought within the Ambit of Quran and Sunnah as per article 227 of the Constitution
of Pakistan............................................................................................................................................... 47
Conclusion .............................................................................................................................................. 48
BIBLIOGRAPHY ....................................................................................................................................... 49
ARTICLES ............................................................................................................................................. 49
BOOKS ................................................................................................................................................... 49
CASES .................................................................................................................................................... 50
DICTIONARIES..................................................................................................................................... 53
REPORTERS .......................................................................................................................................... 53
STATUTES: ........................................................................................................................................... 53
ii
Research Project for the Degree of LL.B.
SUPERVISOR’S APPROVAL
I hereby, forward this work done by
Muhammad Asad Abbas Raja, Fakhar Abbas, and Ahmar Jarral,
to the Research Committee for final evaluation.
Name of Supervisor: Malieka Farha Deeba Malik
Supervisor’s Signature: ________________
8th December, 2017
Department of Law
Bahria University, Islamabad
Research Project for the Degree of LL.B.
iii
DECLARATION OF ETHICAL CONDUCT IN RESEARCH
We, as students of Bahria University, hereby declare that firstly, we have abided by the
research ethics while writing this research project.
Secondly, we have not committed any acts that may discredit or damage the credibility of
our research. These include, but are not limited to: falsification, distortion of research findings,
or plagiarism.
Thirdly, we have subjected this work to plagiarism check before submitting the research
project.
Date: 8th December, 2017
Degree: LL.B.
Department: Law
Name of Supervisor: Maleika Farha Deeba Malik
Name and Signature of Students:
Muhammad Asad Abbas Raja ____________,Fakhar Abbas __________, andAhmar
Jarral ____________.
iv
PLAGIARISM REPORT
v
ACKNOWLEDGMENT
Without Allah’s and His beloved Prophet’s(‫ ) ﷺ‬help, this could not have been possible.
Alhamdulillah
We express our gratitude to our families, whose unwavering support has been
monumental at every step of the way; to our supervisor Madam Maleika Farha Deeba Malik,
who has guided and helped us, and without whom, this journey would have been directionless; to
our teachers, who have taught us everything we know, and helped us realize the fact that we do
not know much; and to our friends our class especially , seniors and most of all juniors who have
supported us through thick and thin.
We extend a special note of gratitude to our esteemed teacher of the Code of Criminal
Procedure Mr. Justice Ch. Abdul Aziz. We would also like to acknowledge the undeniable
contribution of Sir Qaiser Imam, and Sir Haroon Sami, who were always there to haunt our
thesis-induced nightmares. It is pertinent to mention that the faults within this research project
shall not discredit these enlightened and highly esteemed names, they are solely ours to claim.
We hope and pray that our efforts have produced something worthwhile. (Ameen)
vi
DEDICATION
Dedicated to the ever evolving jurisprudence of Pakistan to which fell prey the finest men
including the first ever democratically elected Prime Minister of Pakistan and the first ever
democratically elected President of Pakistan who completed his tenure & within the present
scenario to the defenders of the Khatam-e-Nabowat law (‫ ) ﷺ‬in Pakistan.
vii
TABLE OF CASES
 Govt. Of Balochistan through additional Chief secretary v. AzizullahMemon and others
(1993) 1 PLD (SC) 341 (PAK.)
 Bhutto v the State (1979) 1 PLD (SC) 741 (PAK.)
 Faisal v The State (2007) 3 PLD (KAR.) 544
 Mst. Rasoolain Bibi v. State (2011) 3 P.L.J (C.R.C) 8 (PAK.)
 Hussain v. The State (1993) 2 SCMR 785
 Zaman v State (1999) 2 (SC) 1852 (PAK.)
 Muhammad Usuf Khan v. Emperor (1929) 16 AIR (Nagpur) 215 (IND.)
 Hassu v The Crown (1969) 2 P.Cr.L.J 1209 (PAK.)
 Haider Hussain and others v Govt. of Pakistan (1991) 2(FSC) 139 (PAK.)
 Lallu v State (2017) PLJ (Cr.C) 84 (PAK.)
 Aurangzeb v State (1999)4 PLJ Cr.C (SAC) 91(PAK.)
 Ahmad v State (1999)1 PLJ(SC) 105 (PAK.)
 United States v. Blankenship 923 F.2d1110, (5th Circuit Justice, DC Cir.) (1991).
 Ali v State (2007) 3 MLD 1771 (PAK.)
 Narayan Chetan Ram ch v. State of Maharashtra (2000)87 AIR (SC) 3352 (IND.)
 Ilyas v The State(2001) 1 PLD (SC) 333 (PAK.)
 Shehzado v State and others(1977) 1 PLJ (SC) 278 (PAK.)
 Ali v The State(1970) 2 (PCrLJ) 1292 (PAK.)
 Rasheed v State (2003) 2 SCMR 799 (PAK.)
 Shehzad v State (2002)2 SCMR 1009 (PAK.)
viii
 Singh v State of Punjab (1953)40 AIR (SC) 364 (IND.)
 Bhiva v state of Maharashtra (1963) 50 AIR (SC) 599 (IND.)
 Mohan v. State of Utar pardesh (1954) 41AIR (SC) 637 (IND.)
 Waheed v State (1995) 3 SCMR 1498 (PAK.)
 Mstshehnaz Bibi v. M.Liaquat (2007) 3 SCMR 1438 (PAK.)
 Masih v State(2002) 1PLD (SC) 643 (PAK.)
 Ghafoor and others v State (1984) 2 PLD(Lah.) 441(PAK.)
 Ali v The state(1967)1 PLD (SC) 545 (PAK.)
 Khaliq v The State(1970) 1 PLD(SC) 166 (PAK.)
 Mushtaq v The State (2005) Part III YLR 1728 (PAK.)
 Darwesh and another v. The State (2014) YLR 2223 (PAK.)
 Zardari v The State (2005)YLR 717 (PAK.)
 Ahmad v The State (2003) 3 MLD 1627 (PAK.)
 Mst. Laiba Anthony v. The State (2010) 2PCrLJ 531 (PAK.)
 Rasheed v The State (1970) 1PCrLJ 722 (PAK.)
 Alam v Riyasat (1983) SCMR 1127 (PAK.)
 R v Baskerville [1916] UKKB 658
 Davies v DPP [1954] UKHL 378.
 Niazi v Mian Muhammad Nawaz Sharif Prime Minister of Pakistan (2017) PLD (SC)
265 (PAK.)
 State v. Abdus Sattar 1985 (NLR) Cr. 254 (PAK.)
 Shah v. Ashiq Ali Shah etc. (1982) 2 SCMR 1110 (PAK.)
 (2009) SCMR 23 (PAK.)
ix
 (1977) CriLJ 1206 (IND.)
 (1954) I A.E.R 507
 (1950) PLD (Lah) 115 (PAK)
 (1957) AIR (All.) 391 (IND.)
 (1985) 3 PLD (Lah.) 730 (PAK.)
 (1984) NLR (Cr.) 34 (PAK.)
 (1962) PLD(SC) 269 (PAK.)
 (2011) YLR 1811 (PAK.)
 (1956) PLD (FC) 140 (PAK.)
 (1928) AIR (Lah.) 681 (IND.)
 (1923) AIR (Lah.) 389 (IND.)
 (1957) 2 PLD (Lah.) 1023 (PAK.)
 (1959) 2 PLD (Lah.) 115 (PAK)
 (2004) PCrLJ (PAK)
 (1967) 1 PLD (SC) 545 (PAK.)
x
ABSTRACTS
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. In the following research different legal regimes have been discussed where
independent corroboration is insisted upon. It is also pertinent to mention that under Islamic
criminal justice system an evidence put forth by an accomplice is totally reject 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. Hence under different legal regimes and theories it is
established that Independent corroboration is not only necessary but if its not there then it will
defeated the purpose of justice.
xi
Title for Research Project
LEGAL-VALUATION OF ACCOMPLICES’ DEPOSITION IN
CRIMINAL JURISPRUDENCE AND THE ESSENTIALITY OF
INDEPENDENTCORROBORATION. ,
Research Statement
A court of law presiding over a criminal trial cannot solely rely upon the deposition of an
accomplice/approver for conviction andshould 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
Muhammad Ali Jinnah envisaged a country which would operate in abidance of the
realms of Islamic Jurisprudence where rule of law and independence of judiciary were one of the
basic norms. An objectives resolution was passed by the first constituent assembly of Pakistan in
which rule of law and independence of judiciary1 were introduced as the fundamental features of
the future constitution of Pakistan. Later objectives resolution was made a substantive part of the
Pakistani constitution under article 2-A and was upheld by the judicator.2
1
The Objectives Resolution: ANNEX
Wherein Shall be guaranteed fundamental rights including equality of status, of opportunity and before Law [****].
Wherein Independence of Judiciary shall be fully secured.
2
Govt. Of Balochistan through additional Chief secretary v. AzizullahMemon and others (1993) 1 PLD (SC) 341
(PAK.)
1
At points of time in history the highest judicial forum of Pakistan have either under the
influence of pressure, ill-will or bias rendered judgments which stood in total negation of
internationally accepted norms & principles.3 These judgments have by virtue of their nature
sneaked into the pages of history and have led to settlement of bad precedence. It is therefore
imperative that a thorough examination of certain matters be carried out and the legal thought in
relevant regard be reconstructed.
The principles of fair trial and law of evidence have always held an important place in
criminal law.4 Sadly the courts in Pakistan at a number of times have derogated from these
principles of law. Such instances have not only diminished the stature and reputation of the
judicature in public eyes but have also resulted in the casting of long-lasting negative effects the
motif of jurisprudence in Pakistan, example in this regard can be taken of the principle of benefit
of doubt which is the foremost and the basic principle of criminal law.5 It is also a settled
principle of law that the court will not come to rescue the case of the prosecution.6
With regard to the statement of the subject thesis, 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. 7 Though a trial court is
empowered with the authority to incriminate an accused solely on the evidence produced by an
approver8 but many legal impediments stand in the way of pronouncing a conviction. An
approver, though reliable in general terms cannot be equated with an independent witness. The
reason for this discrimination is simple and legally comprehendible, an approver without doubt
3
Bhutto v the State (1979) 1 PLD (SC) 741 (PAK.)
4
Faisal v The State (2007) 3 PLD (KAR.) 544
5
Mst. Rasoolain Bibi v. State (2011) 3 P.L.J (C.R.C) 8 (PAK.)
6
(2009) SCMR 23 (PAK.)
7
Hussain v. The State (1993) 2 SCMR 785
8
PAK CODE The Qanoon-e-Shahadat Order Art. 16,(1984): An accomplice shall be a competent witness against
an accused person, except in the case of an offence punishable with hadd and a conviction is not illegal
merely because it proceeds upon the uncorroborated testimony of an accomplice.
2
and according to his own admission along with that of the prosecution provides a testimony on
the basis of an assurance that he shall be dealt with lightly and the law shall be not be stringently
enforced in his case. This assurance qualifies to be an Influencing Factor which is very likely to
affect the contents, tone and tenor of his testimony. Such a testimony is neither forthcoming nor
voluntary in nature and thus does not fall within the definition of Confidence Inspiring
testimony.
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.9 The common law also
does neglect the reputation and standing of a witness and does take into consideration the
chapters of past life, his abidance of law and the cleanliness of his available record. When seen
in view of these prisms, an Approver appears to be imperfect and degenerated figure to say the
least.10 Not only his immediate past is ridden with guilt but he also has prima facie accepted the
same without much remorse or sorrow. Many notable jurists have in the past referred to an
Approver as a Moral Wretch11 who has been an accomplice n the alleged crime but at a later
stage had turned his back on his former partner for selfish gains. 12 It is for these reasons that an
Approver is rarely considered Trustworthy in material terms and his statement is viewed with
acute suspicion.
9
PAK CODE The Qanoon-e-Shahdat Order Art, 3 (1984): Who may testify: Provided further that the court shall
determine the competence of a witness in accordance with the qualifications prescribed by the injunctions
of Islam as laid down in the Holy Quran and Sunnah for a witness, PLD 1985 Lah. 730.
10
Shekhar v jagiwanBaksh Singh and another (1929) 16 AIR (Nagpur) 215 (IND.)
11
Id..
12
Before the circuit court of the United States, Holden at Boston, The Trial of J W, F Frederick, Etc on an
Indictment for Murder on the High Seas; (1 edn, BOSTON: Russell and Gardner 1819) 39
3
The said suspicion which naturally stands associated with an approver due to the stigma
attached to him, makes his testimony defected in due course. This defect can only be cured by
one mean and that is providence of material corroboration.13 This corroboration should
chronologically validate the subject Testimony and fill all void present in the prosecution’s case.
Only under such a circumstance can the judicial conscience be satisfied and a presiding judge
can arrive at his judgment of a conviction.
Literature Review
The origin of criminal law can be traced back to centuries. It can be easily said that this
branch of law is as old as crime itself. Romans were not only known to crime but also to the
criminal justice system.14 The term crime is defined as;
“A positive or negative act in violation of a penal law”15 meaning thereby that if an if
there is an omission from the principle that has been laid down by a penal, that omission will be
known as a crime and the law dealing with such an omission will be known as criminal law.
Criminal law and law of evidence are closely related to each other. As the objectives which are
mentioned in a penal code are to be attained through a procedure and within that procedure we
require evidence. The term evidence has been defined as “any specie of proof legally presented
at the trial of an issue by the act of parties, through the medium of witnesses, documents and
etc”16. So by this definition is quite clear that to prove a case some sort of evidence is required
and when we go deep into the details of evidence we come to know of its types such as which
evidence is admissible and which not whereas which evidence requires independent corporation
and which not.
13
(1977) CriLJ 1206 (IND.)
14
HENRY CAMPBELL BLACK, BLACK'S LAW DICTIONARY 3 (4TH ed. 1968)
15
Id..at 444
16
Id at 656
4
From the early days a criminal is known to common law that on expense of other saves
his own neck and is known as approver or an accomplice.17 An accomplice is person who is a
partner in crime or has such a relation with crime that can be indicated with the principle
perpetrator.18 The term has also been defined as person who is implicated in the crime either as
principle or accessory whereas Bell’s Legal Dictionary defines it as a person who has either
participated or is associated in the committed crime.19
The term has also been defined in a number of case laws it was held in Davies v. Director
of Public Prosecution20that approver is person who is particepscrimin in respect of the actual
crime charged either as principle or accessory.They were tendered pardon on the ground that
they should give evidence from the crown’s side which means that an accomplice is made when
there is lack of evidence and that is the basic reason why he is tendered pardon so that the
principle perpetrator can be brought to justice or can be incriminated.
The term accomplice and recording of its evidence has enumerated in a number of
statutes. Article 16 of the qanonn-e-shahadat Order 198421 set froths the evidentiary value of an
accomplice whereas chapter XXIV of the code of criminal procedure deals with the procedure of
recording an accomplice’s statement.22 Police Rules 1934 lays down the procedure of recording
that evidence after tender of pardon which requirements shall be met.23
Before we move on towards the concept of accomplice and its corroboration it is
important to mention that it is a settled principle in common law that testimony of a single
17
M MOMIR, A TEXT BOOK ON EVIDENCE433 (1st ed. 2012)
18
Id.
19
Medard r rewlamira, Corroboration of Accomplice evidence in Swaziland: Some thoughts on Judicial
Interpretations and their implications, 36(1) J. AF. L. 55 (1992).
20
(1954) I A.E.R 507
21
PAK CODE The Qanoon-e-Shahadat Order Art 16, (1984) Accomplice: An accomplice shall be a competent
witness against an accused person, except in the case of an offence punishable with hadd and a conviction
is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice
22
PAK CODE CRIMINAL PROCEDURE Sec337-339 (1898)
23
PAK CODE THE POLICE RULES Chapter 25 Rules 27-29 (1934)
5
competent witness is enough for a verdict to be pronounced.24 However exceptions to this
general rule of criminal law have emerged. Under the present law accused cannot be convicted
on certain evidences until and unless they are corroborated and if it’s not done then it’s
dangerous25 and it is explicit that if dangerous than it goes against the cardinal principle of
benefit of doubt26 which states that accused is the blue eyed child of the court. We can infer that
in today’s world we need corroboration of evidence to convict an accused when evidence is put
forth by an approver as it falls in the those circumstances where corroboration of evidence is
required.27 It was not until the 18th century when the courts began to accept that the evidence
produced by an approver is to be corroborated with an independent witness28 and this
development gave us the genesis of the concept of corroboration of evidence produced by an
approver in front of the court.29 The term corroboration means to strengthen or to add weight to a
thing by additional fact or evidence30 meaning thereby that if evidence is corroborated with
additional facts or evidences it gains strength and it helps the prosecution to incriminate an
accused. In the United States it is settled law that conviction cannot be solely on the testimony
of the accused until it is corroborated with independent evidence which does not requires the aid
of accomplice’s evidence.31 In the beginning of the 18th century the judges presiding over
English trials cautioned the juries not pay any respect to the testimony given by accomplice
unless they are corroborated with some material evidence, as he knows his own guilt and to
24
Law reform commission of Canada , 'Evidence' [1975] 1(1) Corroboration 05
25
Id..
26
Zaman v State (1999) 2 (SC) 1852 (PAK.)
27
Id.
28
29
Id.
30
HENRY CAMPBELL BLACK, BLACK'SLAW DICTIONARY 414 (4TH ed. 1968)
31
CAL. (Penal) Code § 1111 (1872)
6
purchase immunity he might implicate others.32 It has been a long practice of courts to tender un-
corroborated statement of an accused as unreliable33 and the judges under common law used to
warn the jury that it is dangerous to convict a person over an uncorroborated testimony of an
accomplice34 and this practice was accepted long ago R. v. Atwood35.The question that whether
jury solely on the basis of evidence put forth by the approver or not, if not then what should be
the nature of supplementary evidence which is to be produced by prosecution for corroboration.36
There are a number of reasons behind mistrust on approver’s evidence and they are indeed not
difficult to find. Out of all the basic reason behind this distrust is that the approver may try to
save his own skin on account of others and in this view he is treated or viewed as a person who
has a stake in the offence.37 The corroboration of evidence to implicate an accused must be such
that it tends to connect the defendant or the accused with the commission of offence.38
Though a bare reading of our own statute on evidence revels that accomplice would be
considered as a competent witness against the co accused and even some of the Indian law
commission reports refer so.39 Even Article 133 of the Indian evidence act 1872 states so.
However while interpreting these sections and articles the courts have time and again gone for
independent corroboration of evidence.40 Capital punishment has been carried out in Pakistan on
the testimony of an accomplice when corroborated with hearsay evidence. 41 So that stands in
negation with the principles enshrined not in only in Islamic Jurisprudence but common law as
32
33
J.D. Newton and Glanville Williams , The Modern Law Review (1, Vol 17 edn, Wiley 1954) 37
34
Id..
35
Id..
36
37
Id..at54
38
G H, Evidence: Corroboration of testimony of an accomplice 7(4) CA. L. REV. 272 (1919.)
39
The law commission of India , 'Working Paper No 115' [1990] 1(1) Corroboration of Evidence in Criminal
Trials 11
40
Hassu v The Crown (1969) 2 P.Cr.L.J 1209 (PAK.)
41
Bhutto v the State (1979) 1 PLD (SC) 741 (PAK.)
7
well. The laws in Pakistan which deal with the concept of approver are the code of criminal
procedure 1898, the qanoon-e-shahadat order 1984 and the Police Rules 1934.
So by the above mentioned it literature it is quite clear that corroboration is of much
importance in criminal trials though it can be circumstantial42 but it shall be there.
Objective of Research
This paper 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. This thesis will focus on the concept of independent witness and an
accomplice whereas we would also see that whether conviction can be carried out or not and is
conviction is there then what would be the quantum of punishment in such cases.
Research Questions
Research Questions, which shall determine the course of the Research at hand and shall
assist the Researchers in their pursuit of reaching a definitive conclusion via due consideration &
deliberation of the critical aspects of the matter, are as under:
1. What is the difference between an Independent Witness and an Approver?
2. What is the legal worth of an approvers’ deposition in light of the common law.
3. In the realms of Islamic Jurisprudence and particularly in view of the standards
set for Tazkiya al Shahood, what is the acceptability of a statement rendered by an Approver?
4. What is the standard of evidence required to corroborate a statement rendered by
an Approver and furthermore whether or not Hearsay Evidence falls within those standards.
42
Zaman v Crown (1950) PLD (Lah) 115 (PAK)
8
5. How does the status of an Approver effect the quantum of sentence post-
conviction and whether capital-sentence can be awarded on the basis of a statement rendered by
such a witness?
6. Does the act of making a particular Accused an Approver infringes upon the
rights of other accused and / or negates any principles enshrined in the notion of Natural Justice?
7. What is the post-trial status of an Approver in any future proceedings i.e. Is he
considered a clean & law-abiding citizen or stained individual who had admitted his guilt?
Research Methodology
We will conduct our research by using doctrinal research and will try to elaborate
principles through case laws. The sources of research will include, statutory laws, reported
judgments, international covenants on principle of laws, news reports and previous research
work relevant to our subject.
9
CHAPTER 1: Difference in between a General Witness and an
Accomplice.
Today after 70 years of independence we find ourselves in bewilderment, where we are
unsure to decide that whether we should follow the Islamic legal system and its maxims or the
western jurisprudence and its maxims. Due to this bewilderment, today we have a complex set of
laws in front us where Islamic jurisprudence ay reject a concept but we still find it enacted within
our statutes.
Black’s law dictionary defines law as something which has been established our laid
down.43If we go for its essence or its foundation stone jurists have interpreted it as a command
which obliges a person44 to follow as specific conduct though it can be explicit or tacit45. The
term law has also been defined as, the rules which have been laid down upon political inferiors
by the political superiors.46 Both of these definitions stick to the man-made law or which is
generally known as the positive law. The term positive law has also been interpreted as the law
which has been made by men for other men. It is pertinent to mention here that contrary to this
theory of law are jurists and men who believe in the divine law. The law sent upon us by no one
else but God whereas the third group in between them is of the naturalists whom believe that
laws shall be based on the rules of nature. Austin amalgamates both of them as the ones who
follow the law of God.47
43
44
JOHN AUSTIN, THE PROVINCE OF JURISPURDENCE DETERMIND 18 (1st ed.1832).
45
Id.. at29
46
Id..at 01
47
Id.. at02
10
We find ourselves in bewilderment because we are trying to follow both the divine and
the positive law. Our complex legal system can be clearly enumerated by an example that on one
side of the rope we have established a Federal Shariat Court and the Council of Islamic Ideology
whereas on the other side of the rope, western legal system or it is better to say that the western
jurisprudence is enacted within our statutes. Article 16 of the Qanoon-e-Shahdat Order 1984 can
be referred as the best example in this context. It was declared null and void by the Federal
Shariat Court in the year 1991 but is still in the field with all its effect. Even before 1991 if we
have a look at the competency of witness under traditional Islamic jurisprudence, an accomplice
was nowhere near to that criteria which has been set forth. The criteria was in length discussed
by the Federal Shariat Court in the case Haider Hussain v The Government of Pakistan and
others48, it was in length discussed by the honorable court that who what qualifications are there
for a witness under Islamic criminal justice and what sort of person would be competent to
testify before the court. It becomes important for us to understand that standard because such
standard has not only been ordained under Islamic jurisprudence but in our very own statute of
evidence the Qanoon-e-Shahdat Order 1984 under its article 3.49 It was also held in the afore
cited case that one should possess such qualifications as a pre-requisite. The Constitution of
Pakistan under article 227 ordains that no law shall be made against the Injunctions of Islam and
that no prevailing law shall be repugnant to them.50
The following chapter will discuss in detail the concept of a witness whereas competency
of a witness under the Islamic legal system will be discussed too. During our discussion we will
also go through the concept of a competent witness under positive law or the western legal
48
Hussain and others v Govt. of Pakistan (1991) 2(FSC) 139 (PAK.)
49
Pak Code. Qanoon e Shahadat Order ART. 3, (1984):Who may testify: Provided further that the court shall determine
the competence of a witness in accordance with the qualifications prescribed by the injunctions of Islam as laid
down in the Holy Quran and Sunnah for a witness, (1985) 3 PLD (Lah.) 730 (PAK.)
50
Const. art. 227
11
system because an accomplice has been termed as a moral wretch not only by the authors but by
the courts of law as well.51 The following discussion will also revolve around and will try to
elaborate that what rules of corroboration are there for an accomplice’s evidence within our legal
system and that what legal frame work has been given to us within the statutes to deal with this
concept. We will also try to elaborate a number of different terms such as independent witness,
corroboration and others. We will also try to differentiate between an independent witness and an
accomplice so that it is easy for us to understand that in what way anaccomplice is different from
other witnesses.
1.1 Witness in General:
Evidence has always held an important place both in civil and criminal matters and
evidence is produced either through documents or witnesses. Though civil matters can be fought
on documents but pure criminal trials such as murder, dacoity and etc have always been
contested on the weight of a competent and an unshaken witness. The term witness has been
defined in the black’s law dictionary as the one who testifies under declaration.52 The courts of
law have also defined this term by saying that witness is a person who furnishes some evidence
53
and that is in actual the true sense of this word. Within the common legal system witness is
considered to be a person who is to give some sort of evidence in the prosecution held by the
crown under the criminal code.54 So in a general sense we can say that witness is person who is
to produce some evidence before the court in a criminal trial or a civil proceeding. It is also
51
Khan v. Emperor (1929) 16 AIR (Nagpur) 215 (IND.)
52
53
(1957) AIR (All.) 391 (IND.)
54
CANADA CODE, Witness Protection Act, Section 2 (L), (1985)
12
highlighted that witnesses hold an important position, because at times sole testimony can not
only cover up slight legal lacunas but on its account capital punishment can be upheld.55
In order to understand the concept of a witness we must firstly understand that who is a
competent witness. The word competence can be defined in two different ways, the first meaning
is of being admissible and secondly it means legally capable of being. 56 So if we have close look
at both of them it is clear that evidence can only be taken of a person who is legally capable of
doing so. From here onwards we will move towards the concept of a competent witness under
different legal jurisdictions.
1.2 Witnesses under Islamic Jurisprudence
The Islamic criminal justice system has given numerous laws for the dispensation of
justice. The term used for evidence in typical Islamic jurisprudence is Shahada.57 The basic rule
of testimony in Islam is that one male and two female witnesses or two male and four female
witnesses shall be there.58 It is interpreted that this rule was laid down or revealed in context of
fiscal transactions but at the same time it is pertinent to mention that testimony of a female
witness is not acceptable in cases of Hudood.59 Islam has not only talked about the quantum of
witnesses or we can say that Islam has not only focused the quantity of witnesses but has also
laid immense importance on the quality of witnesses and hence the concept of Tazkiyah al-
shuhood has emerged which means the mode through which the court satisfies itself upon the
competency of a witness.60 The superior courts have persistently held that Tazkiyah al-shuhood
55
Lallu v State (2017) PLJ (Cr.C) 84 (PAK.)
56
Chapter 2: Competence of Witness (15 Nov. 2017) http://law.wisc.edu/evidence/ch02.html
57
Mamman Lawan, Ibrahim & Shaheen Sardar, An Introduction to Islamic Criminal JusticeSystem,HIGH. EDU ACAD. UK.
39 (2011.)
58
1, THE HOLY QURAN (KANZ-UL-IMAN), Chapter 2 Verse 282, (Ahmed Raza Khan Barelvi, trans, 2011)
59
Id..at40
60
Aurangzeb v State (1999)4 PLJ Cr.C (SAC) 91(PAK.)
13
is obligatory in cases which refer to hudood or qisas and even otherwise.61 It is hence important
for us to see that in actual what is Tazkiyah al-shuhood because that will bring forward a clear
description in front of us that before executing punishments what shall be the competency of a
witness under Islam.
The concept of a competent witness under Islamic legal system has been discussed in
detail by the Federal Shariat Court in a number of shariat petitions filed before the honorable
court. The basic qualifications of a witness in Islam can be seen in 2 parts
 Tahammaul al-Shahada
 Ada al- Shahada62
On the very outset is Tahammaul al-Shahada under which a person must be sane, in
addition to that a person must not be blind meaning he has the ability to see and thirdly he or she
must have seen the matter/occurrence for which they are giving evidence. Whereas the second
category states that one should be a Muslim, major, sane, whereas a witness must also possess
the ability to watch, speak and last but not the least shall be an adil.63 The term adil encompasses
a vast jurisprudence within itself as in offences liable to had qisas court must satisfy itself that
the witness brought forward fulfils the requirement of an adil witness.64 The competency of a
witness in Islam is held as high as the competency of the judge.65 The term adil means just and as
per the injunctions laid down in Holy Quran witnesses must be the just ones.66 If a person is
convicted of any moral turpitude or is famous for his immoral character than his evidence is
61
Ahmad v State (1999)1 PLJ(SC) 105 (PAK.)
62
Hussain and others v. Government of Pakistan And others(1991) 2 PLD(FSC) 139
63
Id..
64
Id..
65
Abubakar & adamu , Islamic law and practice and procedure in Nigerian courts, PUB. Malthouse press LTD. Lagos 107
66
14
admissible.67 By the aforementioned discussion we can easily infer that under Islamic criminal
law a witness must possess high moral standards and that if he lacks that then his evidence is not
to be taken into account.
1.2.1 Witness under the Pakistani legal system
Article 3 of the Qanoon-e-Shahdat Order 1984 is the basic law that deals with the concept
of witness in Pakistan. Qanoon-e-Shahadat 1984 order was promulgated in the year 1984. Before
that the Evidence Act of 1872 dealt rules of evidence in Pakistan. A number of laws were
Islamized in Pakistan during 80’s and so was the evidence act. An effort was made to bring all
existing laws within the Ambit of Islam.
Article 3 of the Qanoon-e-Shahadat Order 1984 states that competency of a witness must
be determined in light of the injunctions that have been laid down in the holy Quran and Sunnah
and that a witness produced or called can understand a rational question and give a prudent
answer.68 So a two-part test is given in the Qanoon-e-Shahadat Order 1984 where on the very
outset is that stated that the competency shall according to what has been stipulated in the text
and on the second end it is enshrined that a witness produced or called can understand a rational
question which is being put to him and that he can give a rational or prudent answer to that69
provided that he shall not a convict of the offence of perjury. It was also held by the honorable
Federal Shariat Court that as per the standards of Islam a co-accused or an accomplice is a fasiq
and does not by any means reach near to the standards ordained.70 As in Islam Adl (justice) is a
67
Law of evidence: (15th Nov. 2017)
http://www.ljcp.gov.pk/Menu%20Items/Publications/Reports%20of%20the%20LJCP/reports/report04.htm
68
PAK CODE QANOON-E-SHAHDAT ORDER Art. 3, (1984)
69
Khan v. Meherullah (2001) 1 PLD (SC) 67 (PAK.)
70
Hussain and others v Government of Pakistan And others (1991) 2 PLD (FSC) 139
15
compulsory condition even for the witnesses for which a detailed illustration has beenenshrined
at various places in the Holy Quran.71
The third proviso of the aforementioned section is in conflict with the injunctions
stipulated in the Holy Quran and Sunnah. It states that when no competent witness is there as per
the injunctions laid down Islam then the court may take any evidence that is available, it has
been included in the statute as per the law of necessity72 so that no person shall be deprived off
his right and that the offenders should not go free.73 As per the dictum that has been laid down by
the honorable Federal Shariat Court if we examine in detail article 3 of the Qanoon-e-Shahadat
order it can be safely said that the law or the specific article that deals with the concept who may
testify is not by any means repugnant to the provision of Islam or the injunctions that have been
laid down in the Holy Quran and the Sunnah of the Prophet (‫) ﷺ‬.74
1.3 Witness under Common Legal System (Credible witness)
There are three major legal systems in the world, the common legal system, civil legal
system and the religious legal system. In this discussion we will try to focus more upon the
common legal system because Pakistan is one of the countries that follow common law. Though
we will also go through the civil legal system so that we can have an insight of that legal system
comprises of.
Even under common law rules of evidence were highly influenced by religion75 but with
the rise of positivism and lights of Bentham, Austin, Hart and others rules of evidence have
71
1, THE HOLY QURAN (KANZ-UL-IMAN), Chapter 04 Verse 130, (2011) (Ahmed Raza Khan Barelvi, trans, 2011)
72
Hussain and other v Government of Pakistan and other (1991) 2 PLD (FSC) 139.
73
Id..
74
Id.
75
Chapter 2: Competence of Witness, (15th Nov. 2017) http://law.wisc.edu/evidence/ch02.html
16
changed and hence the present form is in front of us today. A number of laws and rules are there
in respect of the competency of a witness. If we look at the historical development, there was
time when common law regarded a number of persons as an incompetent witness due to the fact
that they would lie under oath76 but according to the new rules and procedures such concepts are
no more prevailing.77 United States has promulgated their own federal rules of evidence and
under rule 601 the general rule of competency is given.
Rule 601 is an inclusive section in terms of interpretation of statutes as it says that anyone
can be a witness. In terms of interpretation of statute this is an inclusive term which means that
this section includes every person to be a competent witness but a judge must find that whether
the person standing in front of the court is mentally sound to give evidence or not. 78 In the case
law United States v. Blankenship79 a drug addict’s evidence was taken into account because the
court held him as a competent witness. A fine difference exists in between competency and
compatibility of a witness as a competent witness is one who can give evidence and there is no
legal implication to stop him from that.80 As a general rule a competent witness is a compatible
witness though in certain cases a competent witness may not be compatible because he may be
legally barred from giving some sort of evidence example can be taken from sections 125 and
133 of the Indian Evidence Act.81 Generally it is upon the trial judge to determine the
competency of a witness and in addition to that it is also left upon the parties to object that
whether a witness is competent or not.82
76
Sydney Beckman, Susan Crump & Fred Galves, Evidence a contemporary approach, WEST. PUB. Co.397.
77
Id..
78
Id..
79
United States v. Blankenship 923 F.2d1110, (5 th Circuit Justice, DC Cir.)(1991).
80
Law relating to witness: Historical Development, Page 13
81
Id..
82
JUILE ROBIN, NORTH CAROLINA DEFENDER 02 (2 nd 1993 )
17
Witness in English law is dealt under the Evidence Act. A number of acts are there in
England which range from civil evidence act to criminal evidence (witness anonymity)act. A
general principle is followed in England that every person is competent to testify. Two
exceptions to this inclusive rule are there. On the first count a person shall not be a competent
witness if he or she cannot understand a reasonable question and is also unable to give a prudent
answer whereas on the second count if he or she has been charged in criminal proceeding then he
or she cannot give evidence for the prosecution.83 A new phenomena very relevant to our
research statement divulges from here that in England if a person who is charged for a criminal
offence, through which the court tells him or her the accusation upon him84, he or she cannot
give their evidence in support of prosecution.
After the rise of positivism a new situation has now emerged in front of us where
everyone is considered as a competent witness even a drug addict but still at places certain
exceptions are there. At times when a co-accused is presented as a prosecution witness, such
witness is not considered as a competent witness.85 A co-accused or an accomplice has been
discussed or described as moral wretch86 because he was a partner in crime and has now turned
his back on his partner for selfish gains.87
So in a crux or a bird’s eye view we can safely say that in common law or in general
which is termed as the western legal system everyone can be a witness and there are no
qualification ordained for him. At times there are certain exceptions to this rule for which the
83
Competence and Compatibility: Legal Service: by Crown Prosecution Service. (17th Nov. 2017)
http://www.cps.gov.uk/legal/a_to_c/competence_and_compellability/
84
Ali v State (2007) 3 MLD 1771 (PAK.)
85
Competency of a witness: (17th Nov. 2017)
http://www.citizensinformation.ie/en/justice/witnesses/competence_of_a_witness.html#l1f4da
86
Khan v Emperor (1929) 16 AIR (Nagpur) 215 (IND.)
87
Before the circuit court of the United States, Holden at Boston, The Trial of J W, F Frederick, Etc on an Indictment for
Murder on the High Seas; (1 edn, BOSTON: Russell and Gardner 1819) 36
18
concept of independent corroboration will come into effect and at times the testimony of a
witness has been nullified as he or she is charged for a criminal offence.
1.4 Accomplice
Generally two types of witnesses are presented in a court during a criminal trial,
prosecution witnesses and defence witnesses, though there is a third type too which is known as
court witnesses but they are less seen in action because they are only called when the court itself
calls him or her to know the real facts and they are only called if the court has the reason to
believe that the person called knows about the matter in contention.
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.88 It has been defined under the US law as one
who actively participates in the commission of offence with intent.89
We can safely argue that accomplice is a person who is a principle perpetrator in crime
and is not a secondary perpetrator. It is now a settled principle that only principal perpetrator can
be produced as an accomplice before the court because he or she has played an active part in the
commission of offence. Accomplice is presented as a Prosecution witness (PW) in a criminal
trial.90 A criminal is known to law from ages, a criminal who saves his own neck or tries to save
his neck on the expense of others and is known as an accomplice or an approver.91 They were
offered or tendered pardon on the count that they have to present evidence from the side of the
88
Hussain and others v Government of Pakistan And others (1991) 2 PLD (FSC) 139(PAK.)
89
74 U.S. (1 Dalls)
90
Narayan Chetan Ram ch v. State of Maharashtra (2000)87 AIR (SC) 3352 (IND.)
91
M MONIR, A TEXT BOOK ON EVIDENCE433 (1st ed. 2012)
19
crown and the basic jurisprudence or the idea behind that is the lack of evidence on the side of
the crown.
It is pertinent to mention here that under every legal system a sole witness may be
competent enough to incriminate an accused.92 However exceptions to the general rule have
always existed and so are they in this case. It has been long held by the courts that the testimony
of an approver is not reliable93 because he might try to save his own skin on the count of the
other person implicated in the offence.94 Therefore the term of independent corroboration
emerged from the judgments of the courts and hence independent corroboration with
accomplice’s evidence was deemed necessary by the courts for sentencing a person.
1.4.1 Independent Corroboration
The term independent corroboration is to be seen in two parts, on the very outset of this
term is the word independent which means literally that something is free from the influence of
anything, it also means self-governing.95 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.96 The second word in this term is corroboration. It has evolved out of the term corroborate
and from the Latin term corroboratus which means to strengthen or to conform or make more
certain the validity.97 Murphy has defined this term as support or conformation.98 So we can
safely say that independent corroboration means corroboration of some sort of evidence which
92
93
J. D. NEWTON AND GLANVILLE WILLIAMS , THE MODERN LAW REVIEW 37 (17TH ed. 1954).
94
MEDARD R REWLAMIRA, CORROBORATION OF ACCOMPLICE EVIDENCE IN SWAZILAND: SOME
THOUGHTS ON INTERPETATION AND THEIR IMPLICATIONS, 36(1) J. AF. L. 55 (1992)
95
1, Victoria Neufeldt, David B. Guralnik, Webster’s New World Collage dictionary, 686, 3rd, (1997)
96
Id..
97
Id..at312
98
Shahbaz Ahmed Cheema, Corroborating evidence in Pakistan, A Mechanism to fill relaiablityvaccum, SSRN. 2
20
free from any effect and strengthens the value of evidence produced before as the Supreme Court
of Pakistan termed it as a term which is incapable of a comprehensive definition.99
1.4.1.1 Corroboration
We have discussed in the aforementioned para that what is meant by the term
corroboration and that from where did it emerge. It is equally important for us to understand that
under law what sought of corroboration is required. Corroboration has been termed as one of the
most effective tool for ascertaining truth.100
It has been upheld by the superior courts while that the nature and extent of corroborating
evidence shall be such that it shall be from an independent source and that it shall irrelevant to
the person whose evidence is being corroborated though it may consist of direct or circumstantial
evidence.101The principle of corroboration loses its shine where direct evidence is present.102 It is
also highlighted that a tainted piece of evidence is not capable of providing corroboration to
another tainted piece of evidence.103
It is equally important for us to understand that where corroboration is required and
where not. The dictum in this respect has been laid down by the honorable courts. It has been
held that where veracity of evidence presented is doubtful or it seems to be exaggerated then
corroboration must be insisted upon but where there is an injured witness or the complaint or
thethe record shows that he or she was in a position to identify the accused without any
possibility of substitution then corroboration is not required.104
99
Ilyas v The State(2001) 1 PLD (SC) 333 (PAK.)
100
101
Shehzado v State and others(1977) 1 PLJ (SC) 278 (PAK.)
102
Ali v The State(1970) 2 (PCrLJ) 1292 (PAK.)
103
(1984) NLR (Cr.) 34 (PAK.)
104
Nazir v State (1962) PLD(SC) 269 (PAK.)
21
There may be 2 reasons for corroboration105
(a) If there is any statutory requirement
(b) If the evidence placed on record is insufficient.
The first situation can termed as a product of legislative instrument where the intent of
the legislature was that solitary witness is not safe to be acted upon.106 This type is to be seen in
conformity with another important concept of evidence and that is plurality of witnesses. 107 Best
example of this concept is enshrined in the Hudood Laws.
The second category deals with rectification of cracks in the original evidence. It only
exists where original evidence is not confidence inspiring108 but we have discussed it earlier that
if the original evidence is creditable then there is no need of corroboration.109 Then comes the
technique of corroboration. It is highlighted that if the original evidence has some probative
force only then corroboration will come into play whereas if its unworthy or not of
creditworthiness then there is no room of corroboration.110 The purpose of corroboration is to
connect the accused with the crime.111 It means that one end of the rope shall be tied with the
neck of the accused and second end of the rope shall be tied to the evidence on record. It is
equally important for us to understand that in Pakistan corroboration is merely a rule of
prudence.112
105
106
Id..
107
Id..
108
Mst. Shehnaz Bibi v M. Liaquat and alias khitta and 2 others (2007)3 SCMR 1438 (PAK.)
109
Rasheed v State (2003) 2 SCMR 799 (PAK.)
110
111
Shehzad v State (2002)2 SCMR 1009 (PAK.)
112
22
1.4.1.2 Independent witness and Accomplice
A great difference exists in between an independent witness and an accomplice. The term
independent witness has been defined in the dictums as one who does not springs from the
sources which are likely to be tainted.113 It means that an independent witness shall not have any
cause, enmity or wish to implicate an accused. An accomplice on the other hand as afore
mentioned is a person not only with a tainted past but also wishes to implicate the accused to
save his own neck. Hence a clear difference emerges in between an independent witness and an
accomplice. So an accomplice by no means can be treated as an independent witness and it is
also pertinent to mention here that an accomplice is brought forward by the prosecution for its
evidence.
1.4.2 Accomplice under Indian Law
Section 133 of the Indian Evidence Act 1872 deals with the concept of an accomplice
wherein it is enshrined that an accomplice is a competent witness against the other accused/s
even without corroboration.114 It has been held by the courts in India that a conviction is not
illegal merely on the ground that it was based on the uncorroborated evidence of an
accomplice.115 Such rule is not established by the precedents alone but it is also available within
the statue. It was further held by the court that it is not a universal conviction or rule to do so.116
In another case the Indian Supreme Court held that though the courts can convict an
accused only on the testimony of an accomplice but as a matter of practice they go for
corroboration.117 Hence a dangerous situation has arisen in front of us by the virtue of this
113
Singh v State of Punjab (1953)40 AIR (SC) 364 (IND.)
114
IND. CODE INDIAN EVIDENCE ACT, Sec. 133, (1872)
115
Das &Ors v The State of Tripura
116
Id..
117
Bhiva v state of Maharashtra (1963) 50 AIR (SC) 599 (IND.)
23
judgment. As in dictums laid down it has been time and again held that conviction can based on
the of a testimony of a person whom has been termed as a mortal wretch by the superior courts in
India.118 These precedents also give a hint towards our research statement that for such reasons
independent corroboration is necessary.
As per the Dictum laid down by the honorable Indian Supreme Court undoubtedly
accomplice is a competent witness but as he has participated in the crime hence a serious stain is
there on his evidence and the courts are naturally inclined to corroborate its ecidence with other
independent evidence.119 Thus another important proposition comes in front of us that every
competent witness is not a reliable witness hence the test of reliability is to satisfied and that is
nothing other than material independent corroboration with other evidence.
1.4.3 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. On the face of it there is contradiction in between these two but this
issue of contradiction is to be seen in two parts. On the very outset it is a general principle of law
that an article over rides an illustrations within a statute and on the second outset our courts have
always gone towards the harmonious construction theory and it has been held that the statute
must be safeguarded on every cost.Hence a situation arises in front of us where capital
punishment may be awarded to an accused on the basis of sole testimony of an accomplice. The
118
Khan v Emperor (1929) 16 AIR (Nagpur) 215 (IND.)
119
Mohan v. State of Utar pardesh (1954) 41AIR (SC) 637 (IND.)
24
term accomplice can also be seen in Chapter 25 Rule 27 of the Police Rules 1934.120 The term is
also enshrined in the Code of Criminal Procedure under section 337.121
The law in Pakistan while corroborating the evidence produced by an accomplice has
barred matters pertaining to Hudood. As we have discussed that 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.122 The courts in Pakistan have not only gone for independent
corroboration but have also convicted accused’s on the sole testimony of an accomplice. In the
following para we will discuss a couple of judgments of the honorable Supreme Court of
Pakistan in which contradictory precedents were established.
In Abdul Waheed v. The State123 the supreme court of Pakistan observed that an
accomplice was not only a person of unworthy credit and but was also indeed a dishonest person.
His evidence was to be discarded and that independent material corroboration is necessary for
conviction as the lower court had convicted the accused on the solitary evidence produced by an
accomplice. On contrary to this the supreme court of Pakistan in Munawar Hussain alias Bobi
v. The State124observed that under certain circumstances the evidence produced by an
accomplice needs no corroboration. It was held that if the court is satisfied then there is no need
of corroboration.
By the above citied judgments a situation has arisen in front of us where contradicting
judgments of the apex court of Pakistan are in front of us hence the principle of prudence which
120
PAK CODE THE POLICE RULES Chapter 25 Rule 27,(1934)
121
PAK CODE THE CODE OF CRIMINAL PROCEDURE, Sec 337, (1898)
122
123
Waheed v State (1995) 3 SCMR 1498 (PAK.)
124
Hussain v State (1993)2 SCMR 785 (PAK.)
25
has been discussed earlier loses its shine. Sotherefore it is important that independent
corroboration shall be made necessary by all means. To conclude this chapter we can safely say
that after going through the settled principles of witnesses under Islamic Law, Common Law and
other relevant laws it is the need of the time that independent corroboration with an approver’s
evidence be brought in the order through a legislative amendment.
26
Chapter 2: Rules of Corroboration and the necessity of
Independent Corroboration.
Law is a developing phenomena and it develops from time to time because as per the
essence of law, it cannot be static. Even Iqbal termed the concept of Ijtehad as Islam’s principle
of movement in law.125 Every legal system in this world is based on philosophies, theories and
interpretations. Today we have those philosophies in a codified from in front of us and are
known as statues or acts.
It is important for us to understand that for the development of any legal system these
theories, ideas and philosophies hold the position of a grund norm.126 The term corroboration has
already been discussed in detail in Chapter 1. The term corroboration has been discussed as a
rule of prudence by the courts. The following chapter will in detail discuss the rules of
corroboration of an accomplice’s evidence under Pakistani law, this part will be covered or will
be seen in the light of three basic laws, The Police Rules 1934, Code of Criminal Procedure
1898, The Qanoon-e-Shahdat Order 1984 and during this we will also see that how the Pakistani
courts have dealt with it. From here onwards we will move our discussion towards the Islamic
perspective of corroboration that what rules of corroboration are there in Islam.
We will also go through the rules of corroboration mentioned or enshrined under
common law. During this discussion our discussion would also go through the idea that that how
Indian courts have dealt with the concept of corroboration. The last part of this chapter will deal
with the necessity of independent corroboration. Why independent corroboration is necessary
125
MUHAMMAD IQBAL, THE RECONSTRUCTION OF RELIGIOUS THOUGHT IN ISLAM, SUPS.CA. 63 (2012.)
126
KELSON, PURE THEORY OF LAW, Law book Exchange ltd. (2005)
27
and that why it shall be included within the statute, During this a number of theories of
interpretation will also be discussed such as the literal theory, golden theory and others through
which we will try to explain the necessity of independent corroboration.
2.1 How corroboration takes place.
The term corroboration has been defined in the previous chapter and it means the one
which strengthens, confirms or makes something more certain.127 The following discussion will
take place upon the idea that how corroboration of evidence takes place within the criminal
justice system. There are some basic principles in criminal law which are known as the cardinal
principles. On the very outset is presumption of innocence. That accused is the favorite child of
the court and is to be presumed innocent until proven guilty. 128 On the other hand when
prosecution is to prove its case through circumstantial evidence then the rule is that one end of
the rope shall be tied with the neck of the accused whereas the other end of the rope must be
linked with the chain of evidence. In the following discussion we will see that how accomplice’s
evidence is corroborated with the other evidence present on record. Then our discussion will
move towards the proposition that how an accomplice’s evidence is corroborated with the
circumstantial evidence. During this discussion both last seen and waj-takar evidence will be
discussed.
We have already discussed in the previous chapter that corroboration is to understood
from two different perspectives129
127
1, VICTORIA NEUFELDT, DAVID B. GURALNIK, Webster’s New World Collage dictionary, 312, 3 rd, (1997)
128
Zaman v State (1999) 2 PLJ(SC) 1852 (PAK.)
129
28
 Statutory requirement of not relying on the evidence produced by a single
witness
 Where evidence on record is not sufficient enough.
Hence in the above mentioned situation corroboration of evidence takes place. The first
situation can be easily understood in pretext of Hudood laws where the number of witnesses has
been ordained by the Holy Quran. In this proposition it is also it is also pertinent to mention that
even the Justinian code regarded a single witness in certain aspect as insufficient.130
In regards to the second outset i:e where evidence on record is not sufficient.
Corroboration of evidence holds immense importance. Corroborative evidence in this situation
ushers or supports the reliability of evidence produced because it is not conclusive.131 It can be
safely said that the technique behind corroboration of evidence is to rectify the defects or it is
better to that corroboration fills in the cracks which were there in the original evidence.
In order to corroborate evidence under the Pakistani law of evidence, Qanoon-e-Shahadat
Order 1984 is structured in such a way that it revolves around the relevancy of facts. Such as
under article 21 of the Qanoon-e-Shahadat order any fact that leads towards motive is a relevant
fact. In order to understand corroboration we shall firstly go through the concept of relevant fact.
The term relevant fact can defined as facts which are necessary to explain the happening. The
statute is also structured in such a way that it revolves around the relevancy of certain types of
evidences.
130
Id..
131
Id..
29
The technique of corroboration in Pakistan is to be seen in two parts. The Supreme Court
of Pakistan in Mst. Shehnaz Bibi v. Muhammad Liaquat alias Khitta132 when the original
evidence produced is of doubtful character corroboration will sought. Similarly the honorable
Peshawar High Court has ruled that if the original evidence is of doubtful veracity then
independent corroboration will be sought.133 The Supreme Court of Pakistan in Shera Masih v
State134 pointed out that independent corroboration is required at a number of instances such as
when there exists enmity in between parties, witnesses are interested, inimical or not independent
then independent corroboration is necessary.
Now that we are discussing the technique of corroboration it is important for us to
understand the principals of corroboration. Principles of corroboration were discussed in the
infamous case of R v. Baskervillie where it was held that corroboration of evidence shall be held
in such a way that it connects the accused with the crime. We have already discussed above that
when evidence is direct there is no need of corroboration.135 The law commission of India in its
working paper136 gave certain recommendation for corroboration of evidence. It has also been
held that corroborative evidence must be direct.137 On the first count it means that a witness
cannot corroborate with his or her own evidence and it must come from some independent
source. Secondly it was pointed out that corroborative evidence must implicate the accused.138
Though there are two different views upon this rule. The first one states that corroboration shall
consist of independent evidence that is verified by a part of statement produced by the witness
132
Mstshehnaz Bibi v. M.Liaquat (2007) 3 SCMR 1438 (PAK.)
133
(2004) PCrLJ (PAK)
134
Masih v State(2002) 1PLD (SC) 643 (PAK.)
135
(2011) YLR 1811 (PAK.)
136
The Law Commission working paper no. 115 page 16 Published by HMSO London
137
Id..
138
Id..
30
before the court whereas the second view which has been largely upheld states that accused must
be implicated.139
On the third count the evidence put forth by an accomplice was discussed. It was guided
that accomplices cannot corroborate each other’s evidence.140 It was pointed out that
accomplice’s are party to the offence committed hence they cannot corroborate each other’s
evidence. The Pakistani courts have also held that the conduct of an accused is a corroborative
piece of evidence.141
2.1.1.1 Corroboration of evidence produced by an accomplice
After we have gone through the techniques of corroboration it is now time for us to see
that in what positions evidence produced by an accomplice is corroborated.
2.1.1.2 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
witnesses credit but in no case they are substantive piece of evidence.142
2.1.1.3 Recovery and Corroboration
139
Id..at17
140
Id..
141
(1956) PLD (FC) 140 (PAK.)
142
(1928) AIR (Lah.) 681 (IND.)
31
It has been held that recovery of articles connected with offence are sufficient enough to
corroborate with an the evidence produced by an accomplice.143 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. 144 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.145
2.1.1.4 Material points suggesting link between crime and accused.
If a statement produced by an accomplice creates or suggests a link between the crime
and the accused such statement can be regarded as a safe foundation for conviction. 146 This
concept strengthens the concept of chain of evidence which we have discussed before. That one
end of the chain must hang around the neck of the accused whereas the second end of the rope
must tie up with the evidence and if it is so only then conviction is possible. Hence the in light of
the aforementioned case laws it can be safely argued that a chain of corroboration must exist
before the court
2.1.2 Nature and extent of corroboration
There is no difference in between the English law and the Pakistani law when it comes to
the nature and extent of corroboration of an approver’s evidence. Some principles have been
defined in this regard by the Pakistani Supreme Court.147
143
(1923) AIR (Lah.) 389 (IND.)
144
(1957) 2 PLD (Lah.) 1023 (PAK.)
145
(1959) 2 PLD (Lah.) 115 (PAK)
146
Ghafoor and others v State (1984) 2 PLD(Lah.) 441(PAK.)
147
Ali v The state(1967)1 PLD (SC) 545 (PAK.)
32
 There shall be corroboration both as to the commission of offence and the
connection of accused with that commission.
 That in case where there are several accused the court should acquit those
against whom no corroboration is there.
 That such corroboration shall be from evidence produced by the
prosecution other than approver’s statement.
It has also been upheld by the Pakistani courts that it would be dangerous to specify that
what kind of evidence would make sufficient corroboration of evidence produced by an approver
and that its nature and extent shall be determined as per the circumstances of the case.148
Independent corroboration may not be of such strength that it by itself sustains conviction. Some
other evidence for sustaining conviction is also required.149
2.2 Corroboration of accomplice’s evidence under The Police Rules
1934.
By now we have discussed in detail the technique of corroboration of evidence, that for
what reason corroboration is required and that in what manner it will be carried out. From here
onwards we will discuss that how an accomplice’s evidence is corroborated and recorder under
Pakistani law. Our basic discussion would revolve around the manners of and precautions which
a magistrate should keep in mind before recording any confession or an accomplice’s evidence.
Under Chapter 25 Rule 27 of the Police Rules 1934 certain precautions are provided.
Magistrate and prosecution both are under duty to consider those principles before recording any
confession or any statement produced by an accomplice. Before we go ahead it is important for
148
Khaliq v The State(1970) 1 PLD(SC) 166 (PAK.)
149
Ali v State (1967) 1 PLD (SC) 545 (PAK.)
33
us to understand the term prosecution. The term has been defined by the Supreme Court in and it
was held that prosecution means the whole procedure from the registration of an FIR to the final
verdict of the court. It is also highlighted that Police is an investigation agency that was formed
under Establishment of Police Act 1861. Now that we are acquainted with the concept of
prosecution and police let us now move towards the precautions that are provided.
Under Chapter 25 Rule 27 (d) of the Police Rules 1934 the term accomplice appears. The
aforementioned section relates to section 337 of the code of criminal procedure and states that in
cases where pardon cannot be granted but yet it is important to obtain evidence of an accused
against his or her accomplices, a police officer may in writing move an application to the district
magistrate to give a promise that he will not be prosecuted subject fulfillments of conditions
imposed.150 Under Chapter 25 Rule 27 (2) of the police rules 1934 it is stipulated that if an
offender who belongs to a gang of offenders is convicted and is now trying to bring his partners
to justice the Superintendent of police in this regard may apply to the government for suspension
or cancellation of sentence under section 401 of the code of criminal procedure but another
important thing which shall be kept in consideration is that this application shall be moved by the
through the district magistrate.151
2.2.1 Procedure of Recording
Under Chapter 25 Rule 29 of the Police Rules 1934 a number of requirements are
provided for the situations mentioned above.152 On the very first count it is stipulated that no
officer is allowed to tender pardon but if the statement provided is of sufficient importance then
it shall be reported to a magistrate whereas in this regard no promise whatsoever shall be made.
150
PAK CODE. THE POLICE RULES, Chapter 25 Rule 27 (d), (1934)
151
PAK CODE. THE POLICE RULES, Chapter 25 Rule 27 (2), (1934)
152
PAK CODE. THE POLICE RULES, Chapter 25 Rule 29, (1934)
34
Secondly if a statement either under section 164 or under section 337 of the code of criminal
procedure shall be recorded by a magistrate who at that time has the highest power and if
otherwise stipulated then it can be recorded by a magistrate of class 2. Magistrate himself needs
to inquire about the circumstances which led the accused for a confession whereas no police
officer shall be present at the place of recording of confession. In addition to that an approver
shall remain under arrest until the conclusion of trial. If there are more than one approvers then
their statements if possible shall be recorded by different magistrates whereas they shall not be
allowed to meet each other until their evidence is recorded in front of the Court.
2.3 Recording of statement under the code of criminal procedure 1898.
Under chapter XXIII of the code of criminal procedure namely general provisions as to
inquires 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
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.153 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.154
153
PAK. CODE THE CODE OF CRIMINAL PROCEDURE, Section 337, (1898)
154
Id..
35
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.155
2.3.1 Difference in between statements recorded under section 164 and 337 of the
Code of Criminal Procedure 1898.
It is important for us to understand the difference in between statements recorded under
section 164 and 337 of the code of criminal procedure. The earlier is known as a judicial
confession.156 The basic difference in between both of them is that where pardon has not been
offered and an accused is making a confession that statement would be treated as a statement u/s
164 and would be recorded as within the restrictions of that section but where pardon is offered
the statement has to be recorded as a witness under oath.157
Though it has been upheld by the courts that it is not a vested right with the accused as if
he has the courage to confess his guilt then as per the realms of Islam why must not he face a
complete trial.158 It has also been held that proper procedure which has been granted under
section 339 &339-A if not followed then the order will suffer great illegality.159
It is mentioned under section 339 & 339-A of the code of criminal procedure that if the
an accomplice has concealed some facts then that person is to be tried again but not jointly and
that statement is to be seen as an evidence against him.
155
Mushtaq v The State (2005) Part III YLR 1728 (PAK.)
156
Darwesh and another v. The State (2014) YLR 2223 (PAK.)
157
Zardari v The State (2005)YLR 717 (PAK.)
158
Ahmad v The State (2003) 3 MLD 1627 (PAK.)
159
Mst. Laiba Anthony v. The State (2010) 2PCrLJ 531 (PAK.)
36
2.3.2 Can an approver be tried again as an accused or Post trial Status.
It is settled principle by now that approver forfeitures his pardon if the public prosecutor
is of the view that he has not made true and full disclosure of the circumstance.160 The aforesaid
principle has also been mentioned in the code of criminal procedure but in this regard we would
like to go with the principle which was upheld by the honorable High Court. It was upheld by the
court that the status of an accused was changed by no other than the prosecution itself from an
accused to a witness hence there is no legal provision in law which can change its status back
from a witness to an accused.161
2.4 Accomplice under the perspective of Islamic Jurisprudence.
In the previous chapter we have discussed in detail about the conditions and requirements
that a witness must possess under Islamic Jurisprudence. Here we would have a detailed in look
that what status does an approver has under Islamic law as he is presented as a prosecution
witness before the court. The Federal Shariat court back in 1991 declared article 16 of the
Qanoon-e-Shahadat Order as un-Islamic.162 The provision in our evidence law is also contained
in the Indian Evidence Act 1872 under section 133. The Federal Shariat Court in its judgment
stated that while constructing the said article the courts have kept in view the bar ordained in the
illustration (b) of section 129. Hence they have considered it legal to base conviction upon an un-
corroborated testimony of an accused but have also termed it as dangerous.
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
160
Bhutto v The State (1979) 1 PLD(SC) 53 (PAK.)
161
Rasheed v The State (1970) 1PCrLJ 722 (PAK.)
162
Hussain v Government of Pakistan (1991) 2PLD (FSC) 139 (PAK.)
37
Islaimc law he becomes a fasiq.163 As per Holy Quran evidence must be given for Allah
Almighty.164 Hence Islamic justice is something higher from formal justice of roman law or any
other human law.165 The federal Shariat Court interpreted verse number 112 of Surrah “al-Nisa”
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.166 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.167 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.168
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.169The 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
163
Id..
164
165
Hussain v Government of Pakistan (1991) 2PLD (FSC) 139 (PAK.)
166
Id.
167
Id.
168
Id.
169
Id.
38
the truth”. Hence the rule enshrined under article 16 finds no place under Islamic Law.170 In this
regard the Muhammad Aslam v. the State171 can be cited as a guiding principle.
2.5 Principles of corroboration under Common law.
In this regard guidance can be taken from a number of English case laws such as R v.
Baskerville172, Davies v. DPP173and others that the judge must caution the jury whenever an
evidence of prosecution is from no other than the accomplice to convict the accused but it would
be dangerous to convict him without corroboration. It has been held by the courts time and again
that caution is a mandatory requirement as per law.174 So in this regard we can safely say that
corroboration is the first principle.
In R v. Baskerville a few rules of corroboration were discussed which are now followed
in a number of common law countries even in Pakistan the courts have discussed these rules
while writing down their judgments. In these rules it was said that evidence used for
corroboration must be independent, evidence must connect the accused with the crime, evidence
must implicate him though it may not narrate the whole story as its but shall support or provide
sufficient corroboration to the evidence on record, one corroboration cannot corroborate another
evidence.
2.6 Pakistani courts and Accomplices and the Test cases.
Here in this regard that how Pakistani courts have interpreted the concept of an
accomplice we would like to cite two cases. AbdulWaheed v. State175and Munawar Hussain
170
Id.
171
Alam v Riyasat (1983) SCMR 1127 (PAK.)
172
R v Baskerville [1916] UKKB 658
173
Davies v DPP [1954] UKHL 378.
174
A study paper, Prepared by Law of Evidence project 1975 page 9 published by 130 AlbertStreet Ottawa Canada K1A 0L6
175
Waheed v the State(1995) 3 SCMR 1498 (PAK.)
39
alias Bobiv. State176, both of these will give us a detailed in look that how Pakistani courts have
dealt with article 16 of the Qanoon-e-Shahadat Order 1984.
In the earlier case it was alleged that the victim was kidnapped and thereafter the victim
was raped. Later on finding the opportunity the victim escaped and reported the matter. The brief
facts which gave rise to this case were that the victim went with the accused to Lahore for
looking after his wife where the accused detained him for his sexual lust. Though medical
evidence was incapable of providing any support the federal shariat court convicted the accused
against which an appeal was preferred. It was argued before the August Supreme Court that the
victim was an accomplice in the case hence her testimony cannot be relied upon. The honorable
Supreme Court of Pakistan acceded to the contention and held that independent corroboration is
necessary.
The Later case holds immense important because here rules of corroboration were
overlooked by the Supreme Court of Pakistan. The brief facts giving rise to this reference was
that accomplice was guilty in a narcotic transportation and was convicted in Norway. He was
then brought to Pakistan to be a witness against his peers. The court in this regard held that as he
was to finish his imprisonment in a foreign country and cannot be released so sole testimony was
found competent by the court to convict others. The rule established by this case was that sole
testimony of an accomplice is competent to carry out convictions.
Though we would not take it as a test case but in the case of Zulfiqar Ali Bhutto v. The
State177 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
176
Hussain v The State (1993) 2 SCMR 785 (PAK.)
177
Bhutto v The State(1979) 1 PLD(SC) 53 (PAK.)
40
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.
In this regard it is also pertinent to mention that where there are two conflicting
judgments are there in the field then both of them will have their effect until and unless they are
over ruled by a bench larger than the bench which gave the over ruled judgment. If the number
of judges remain the same then both of those judgments will remain in field.
2.7 Quantum of Sentence on an approver’s deposition.
As per the theories of criminal law quantum of sentence and conviction have always been
2 different things. Conviction is based upon the concept that whether the accused has done a
criminal act or not whereas quantum of sentence depends upon the nature of evidence produced
before the court. The Indian courts in this proposition as a matter of practice where conviction is
awarded but sentence is awarded later on the basis of evidence produced before the court. It is
important for us to discuss that the code of criminal procedure 1898 enshrines that an accomplice
would be made where maximum punishment may lead up to 10 years.178Hudood offences are
also excluded.179Hence the quantum of punishment is less than 10 years (Though capital
punishment has been carried out of which’s reference has been made in the previous discussio)
in case if an accomplice produces an evidence before the court meaning thereby that laws falling
under the concept of tazir or it are better to say that conviction falling under tazir can be granted
when evidence is produced by an accomplice before the court.
178
PAK. CODE THE CODE OF CRIMINAL PROCEDURE, Sec. 337, (1898)
179
Hussain v. Government of Pakistan (1991) 2 PLD (FSC) 139 (PAK.)
41
2.8The Importance & Vitality of Independent Corroboration
As has been discussed earlier in the preceding paras and will be furthermore elaborated in
the portions to come, it is clear to any student to criminal jurisprudence that Jurists, Judges and
Lawyers spread across the entire global legal fraternity, regardless of their incumbent role i.e.
whether they stand behind the bar or sit behind the bench, don the robes of a prosecutor or a
defender or a judge they seem to agree on one single principle of law and that is that An
Approver/Accomplice’s evidence is not reliable is the eyes of law.180This principle which has
evolved over a significant period of time and is today widely practiced across all common, civil
and religious law countries finds its genesis in the ages old doctrine of Clean Hands181 which
originated in the early thirteenth century at Fourth Council of the Lateran. The doctrine, which
later on got translated into the now very popular maxim of He Who Enters Equity Must Do So
with Clean Hands, is believed to be foundation beneath the principle of unreliability vis the
approver’s evidence.Although the said doctrine and its corresponding maxim is generally
applicable on a certain plaintiff who originates a suite/claim against a specific defendant but is
held not entitled to relief because of his checkered credentials, however what is noteworthy
herein is the underlying spirit of law. The well-known & highly regarded jurist John W. Salmond
had said in this regard that “The essence of law lies in the spirit, not in its letter, for the letter is
significant only as being the external manifestation of the intention that underlies it.”182 Thus
while keeping up with the spirit of the Clean Hands maxim, jurists across the globe have rather
unanimously decided upon the principlethat a person who acknowledges and admits his part in
the commission of an offence must neither be given a candid credence nor must he be allowed to
exploit the law by benefiting from certain portions of it while negating & violating the others.
180
Shah v. Ashiq Ali Shah etc. (1982) 2 SCMR 1110 (PAK.)
181
Chafee, Z. (1949). Coming into Equity with Clean Hands. I. Michigan Law Review, 47(7), 877-906
182
JOHN W. SALMOND, JURISPRUDENCE, Stevens and Haynes, London,. 127 (1902)
42
This non-credence gains further support from two basic tenants of common law’s
evidentiary tributary. The first being that the law & the courts while exercising on its behalf have
always preferred that the witness appearing before it must be a law abiding citizen and that his
past must be clean alleged illegalities. If this is the not the case and a witness is found to have
had brushes with the law in the past then his solo-testimony is often times rejected.183 When seen
light of this practice it very conveniently understandable why an approver/accomplice’s evidence
is not generally placed reliance upon. It is for the simple reason that when a prior accused is
viewed with suspicion then it would only be natural that in the case of a person admitting his
guilt the magnitude of suspicion is raised and not decreased. The second tenant of law which
discourages belief in an approver/accomplice is that law has always strived to promote and
encourage its compliance both by means of benefits and deterrence. If in the case of evidence a
confessing criminal is treated at par with an ordinary law abiding citizen it would run contrary to
the said objective of law.
Having discussed at a brief length the reasons and rationale behind the dis-belief in an
approver/accomplice’s evidence, it is nevertheless a cardinal and essential proposition of
criminal law is that guilty be made to suffer the consequence of their deed and that ends of
justice are substantially met. Keeping in view this foundation theory and the undeniable fact that
at times while dealing with a perfectly executed crime, an approver/accomplice is the only
witness to the crime and his testimony is the only piece of direct evidence therefore adapting an
attitude of outright rejection might not be in the interest of the law itself.
This apparent contradiction in the two principles of law has perplexed the minds of the
jurists for a long time. How to associate the due dis-credence with an approver/accomplice yet
183
Niazi v Mian Muhammad Nawaz Sharif Prime Minister of Pakistan (2017) PLD (SC) 265 (PAK.)
43
utilize his testimony if essential for the conviction of a prime accused? In order to answer this
question jurists have evolved the theory of Independent Corroboration. Courts all over the world
have by this point of time unanimously held that an Accomplice’s evidence requires a mandatory
corroboration form an independent source as he is a man of doubtful character.184
This rule which has been developed after decades of consideration and deliberation
implies that the evidence of an approver/accomplice is infested with an inherent defect. However
as we all know that law has always preferred that matters be decided on merits rather than be
defeated on technicalities.185 Therefore if the testimony of an approver is otherwise confidence
inspiring, the court ought to provide the prosecution with an opportunity to cure the defect lying
in its evidence. This defect as discussed earlier can only be cured if the evidence provided by the
approver is corroborated by an independent mean which is absolutely distinguishable fromthe
approver.
This check or safeguard which has been undetectably associated with the approver’s
evidence is essential to ensure the fact that the prosecution is not given a tool by which it can
lure accomplices into framing their partners based on a promise of lenience by the prosecution.
This safeguard has been incorporated into the codified law by many countries and states such as
in the California Penal Code186 and where that is not the case and the legislature has failed on its
part the judicature has stepped in and under the principal of precedence has made it mandatory
upon judges to disbelief the approver’s evidence if void of an independent corroboration. In fact
the Supreme Court of Illinois in People v. Montgomery187 has went onto the extent of ruling that
an accomplice may not corroborate the evidence of another accomplice as same would violate
184
State v. Abdus Sattar 1985 (NLR) Cr. 254 (PAK.)
185
Tidmarsh, J. (2009). Resolving Cases on the Merits. Denv. UL Rev., 87, 407.
186
CAL. (Penal) Code. § 1111 (1872).
187
The People v. Montgomery - 268 N.E.2d 695, 47 Ill. 2d 510
44
the spirit of the independent corroboration law. In another case of People v. Szeto the Supreme
Court of California ruled that each and every inch of the accomplice’s evidence needs to be
independently corroborated by an dependent source like an unbroken chain and in case a defect
arises in this strength of the chain at any joint it’s blow will be suffered by the prosecution.188
In view of the foregoing discussion it is clear that an Approver/Accomplice is an
imperfect witness and his perfection can only be managed by an independent source’s
corroboration, in the absence of the latter the former is futile and inefficacious in terms of law.
Only in this manner will the binding maxim of Actus Curiae NeminemGravabiti.e. The act of the
Court shall prejudice no one stand discharged by the court.
188
Extent of Corroboration Required. People v. Szeto (1981) 29 Cal.3d 20, 27[171 Cal.Rptr. 652, 623 P.2d 213]
45
Recommendations and Conclusion
In view of what has been discussed in the foregoing paras one is forced to see that
independent corroboration is necessarywhen ever an accomplice put forwards his evidence
before the court as a prosecution witness. It has been now established after discussing in depth
different legal regimes that some legal regimes insist upon the necessity of caution and
independent corroboration whereas some legal regimes such as the Islamic criminal legal system
totally reject it. 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.
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. 189The duty is upon no other
than the investigation authority to fetch out evidence so that the truth comes out and if police is
the investigative agency then it is pertinent to mention that as per the Police Rules 1934 an
189
Hussain v. The State(1999) 2 PLD(SC) 504 (PAK.)
46
investigation officer is duty bound to bring out the real facts of the case rather than investigating
on foundries which shall incriminate the accused.
It is also pertinent to mention that benefit of doubt always extends towards the accused
even if the act stipulates otherwise.190 In this regard another principle of law can also be citied
where it is held that 99 criminals may roam free but one innocent shall not be hanged which is
sadly the state of affairs within our country. Hence if convictions are carried out on the sole
testimony of an accused then it would not only be dangerous but would indeed defeat the ends of
Justice by all means.
Existing article be brought within the Ambit of Quran and Sunnah as
per article 227 of the Constitution of Pakistan.
In this regard detailed discussion has been done in the aforementioned paragraphs. 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.

190
Zaman v. The State (1999) 2 PLJ(SC) 1852 (PAK.)
47
In this regard it would be better to inculcate the term independent corroboration within
the statute under article 16 because as per jurisprudence an article overrides an illustration. It is
also pertinent to mention here that by doing so it would come much close our within the out
ambit of the Islamic criminal law and by doing so principles of Islamic law which has been time
and again held by the Supreme Court of Pakistan as the supreme law will be safeguarded.
Conclusion
In light of what has been discussed in detail in the aforementioned discussion some things
can be safely concluded. If we give a bird’s eye of what has been discussed then on the very first
count we can say that an accomplice is made and pardon is tender to him due to lack of evidence
with the prosecution. It can be described in a nut shell that due to this tender of pardon an
accomplice put forwards his version before the court. That due to this reason his testimony
before the court as a prosecution witness is tainted. That due to this very reason he has been
termed as a selfish man and a moral wretch who has betrayed his former fellows. It is also said
that gain of pardon lead him to go for such testimony. Hence it can be safely said that if no
independent corroboration of evidence is there with his evidence before the court of law then it
would be not only be dangerous but would by all means defeat the ends of justice. Hence
Independent corroboration with an approver’s deposition is necessary in criminal law.
48
BIBLIOGRAPHY
ARTICLES
 Medard r rewlamira, Corroboration of Accomplice evidence in Swaziland: Some
thoughts on Judicial
Interpretations and their implications, 36(1) J. AF. L. (1992).
 G H, Evidence: Corroboration of testimony of an accomplice 7(4) CA. L. REV. (1919.)
 Mamman Lawan, Ibrahim & Shaheen Sardar, An Introduction to Islamic Criminal Justice
System,HIGH. EDU ACAD. UK. (2011.)
 Abubakar & adamu , Islamic law and practice and procedure in Nigerian courts, PUB.
Malthouse press LTD. Lagos
 Law relating to witness: Historical Development, Page 13
 Before the circuit court of the United States, Holden at Boston, The Trial of J W, F
Frederick, Etc on an Indictment for Murder on the High Seas; (1 edn, BOSTON: Russell
and Gardner 1819) 36
 Shahbaz Ahmed Cheema, Corroborating evidence in Pakistan, A Mechanism to fill
relaiablityvaccum, SSRN.
BOOKS
 1, THE HOLY QURAN (KANZ-UL-IMAN), (2011) (Translator Ahmed Raza Khan
Barelvi)
 M MOMIR, A TEXT BOOK ON EVIDENCE (1st ed. 2012)
49
 J.D. NEWTON AND GLANVILLE WILLIAMS , THE MODERN LAW REVIEW (1,
Vol 17 edn, Wiley 1954) 37
 JOHN AUSTIN, THE PROVINCE OF JURISPURDENCE DETERMIND (1st ed.1832).
 SYDNEY BECKMAN, SUSAN CRUMP & FRED GALVES, EVIDENCE A
CONTEMPORARY APPROACH, WEST. PUB. Co.397
 J. D. NEWTON AND GLANVILLE WILLIAMS , THE MODERN LAW REVIEW
(17TH ed. 1954).
 MUHAMMAD IQBAL, THE RECONSTRUCTION OF RELIGIOUS THOUGHT IN
ISLAM, SUPS.CA. 63 (2012.)
 KELSON, PURE THEORY OF LAW, LAW BOOK EXCHANGE LTD. (2005)
 JOHN W. SALMOND, JURISPRUDENCE, STEVENS AND HAYNES, LONDON,.
(1902)
CASES
 Govt. Of Balochistan through additional Chief secretary v. AzizullahMemon and others
(1993) 1 PLD (SC) 341 (PAK.)
 Bhutto v the State (1979) 1 PLD (SC) 741 (PAK.)
 Faisal v The State (2007) 3 PLD (KAR.) 544
 Mst. Rasoolain Bibi v. State (2011) 3 P.L.J (C.R.C) 8 (PAK.)
 (2009) SCMR 23 (PAK.)
 Hussain v. The State (1993) 2 SCMR 785
 (1977) CriLJ 1206 (IND.)
 (1954) I A.E.R 507
50
 Zaman v State (1999) 2 (SC) 1852 (PAK.)
 Muhammad Usuf Khan v. Emperor (1929) 16 AIR (Nagpur) 215 (IND.)
 Hassu v The Crown (1969) 2 P.Cr.L.J 1209 (PAK.)
 (1950) PLD (Lah) 115 (PAK)
 Haider Hussain and others v Govt. of Pakistan (1991) 2(FSC) 139 (PAK.)
 (1957) AIR (All.) 391 (IND.)
 (1985) 3 PLD (Lah.) 730 (PAK.)
 Lallu v State (2017) PLJ (Cr.C) 84 (PAK.)
 Aurangzeb v State (1999)4 PLJ Cr.C (SAC) 91(PAK.)
 Ahmad v State (1999)1 PLJ(SC) 105 (PAK.)
 United States v. Blankenship 923 F.2d1110, (5th Circuit Justice, DC Cir.) (1991).
 Ali v State (2007) 3 MLD 1771 (PAK.)
 Narayan Chetan Ram ch v. State of Maharashtra (2000)87 AIR (SC) 3352 (IND.)
 Ilyas v The State(2001) 1 PLD (SC) 333 (PAK.)
 Shehzado v State and others(1977) 1 PLJ (SC) 278 (PAK.)
 Ali v The State(1970) 2 (PCrLJ) 1292 (PAK.)
 (1984) NLR (Cr.) 34 (PAK.)
 (1962) PLD(SC) 269 (PAK.)
 Rasheed v State (2003) 2 SCMR 799 (PAK.)
 Shehzad v State (2002)2 SCMR 1009 (PAK.)
 Singh v State of Punjab (1953)40 AIR (SC) 364 (IND.)
 Bhiva v state of Maharashtra (1963) 50 AIR (SC) 599 (IND.)
 Mohan v. State of Utar pardesh (1954) 41AIR (SC) 637 (IND.)
51
 Waheed v State (1995) 3 SCMR 1498 (PAK.)
 Mstshehnaz Bibi v. M.Liaquat (2007) 3 SCMR 1438 (PAK.)
 (2004) PCrLJ (PAK)
 Masih v State(2002) 1PLD (SC) 643 (PAK.)
 (2011) YLR 1811 (PAK.)
 (1956) PLD (FC) 140 (PAK.)
 (1928) AIR (Lah.) 681 (IND.)
 (1923) AIR (Lah.) 389 (IND.)
 (1957) 2 PLD (Lah.) 1023 (PAK.)
 (1959) 2 PLD (Lah.) 115 (PAK)
 Ghafoor and others v State (1984) 2 PLD(Lah.) 441(PAK.)
 Ali v The state(1967)1 PLD (SC) 545 (PAK.)
 Khaliq v The State(1970) 1 PLD(SC) 166 (PAK.)
 (1967) 1 PLD (SC) 545 (PAK.)
 Mushtaq v The State (2005) Part III YLR 1728 (PAK.)
 Darwesh and another v. The State (2014) YLR 2223 (PAK.)
 Zardari v The State (2005)YLR 717 (PAK.)
 Ahmad v The State (2003) 3 MLD 1627 (PAK.)
 Mst. Laiba Anthony v. The State (2010) 2PCrLJ 531 (PAK.)
 Rasheed v The State (1970) 1PCrLJ 722 (PAK.)
 Alam v Riyasat (1983) SCMR 1127 (PAK.)
 R v Baskerville [1916] UKKB 658
 Davies v DPP [1954] UKHL 378.
52
 Niazi v Mian Muhammad Nawaz Sharif Prime Minister of Pakistan (2017) PLD (SC)
265 (PAK.)
 State v. Abdus Sattar 1985 (NLR) Cr. 254 (PAK.)
 Shah v. Ashiq Ali Shah etc. (1982) 2 SCMR 1110 (PAK.)
DICTIONARIES
 HENRY CAMPBELL BLACK, BLACK'S LAW DICTIONARY (4TH ed. 1968
 1, Victoria Neufeldt, David B. Guralnik, Webster’s New World Collage dictionary, 3rd ,
(1997)
REPORTERS
 Law reform commission of Canada , 'Evidence' [1975]
 The law commission of India , 'Working Paper No 115' [1990]
STATUTES:
 PAK CODE. THE CODE OF CRIMINAL PROCEDURE (1898)
 PAK CODE. THE QANOON E SHAHADAT ORDER (1984)
 PAK CODE. THE POLICE RULES (1934)
 CAL. [PENAL] CODE (1872)
 IND. CODE EVIDENCE ACT (1872)
53

Asad Thesis Final IA

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Asad Thesis Final IA

Încărcat de

Drepturi de autor:

Formate disponibile

LEGAL-VALUATION OF ACCOMPLICES’ DEPOSITION IN

CRIMINAL JURISPRUDENCE AND THE ESSENTIALITY OF

Supervised by: Madam Malieka Farha Deeba

Muhammad Asad Abbas Raja (01-177131-048)

Fakhar Abbas (01-177131-006)

Date of Submission: 08-12-2017

Bahria University Islamabad

I hereby, forward this work done by

Muhammad Asad Abbas Raja, Fakhar Abbas, and Ahmar Jarral,

to the Research Committee for final evaluation.

Name of Supervisor: Malieka Farha Deeba Malik

Supervisor’s Signature: ________________

8th December, 2017

Bahria University, Islamabad

Research Project for the Degree of LL.B.

research ethics while writing this research project.

Date: 8th December, 2017

Name of Supervisor: Maleika Farha Deeba Malik

Name and Signature of Students:

Muhammad Asad Abbas Raja ____________,Fakhar Abbas __________, andAhmar

supported us through thick and thin.

scenario to the defenders of the Khatam-e-Nabowat law (‫ ) ﷺ‬in Pakistan.

 Govt. Of Balochistan through additional Chief secretary v. AzizullahMemon and others

(1993) 1 PLD (SC) 341 (PAK.)

 Bhutto v the State (1979) 1 PLD (SC) 741 (PAK.)

 Faisal v The State (2007) 3 PLD (KAR.) 544

 Mst. Rasoolain Bibi v. State (2011) 3 P.L.J (C.R.C) 8 (PAK.)

 Hussain v. The State (1993) 2 SCMR 785

 Zaman v State (1999) 2 (SC) 1852 (PAK.)

 Muhammad Usuf Khan v. Emperor (1929) 16 AIR (Nagpur) 215 (IND.)

 Hassu v The Crown (1969) 2 P.Cr.L.J 1209 (PAK.)

 Lallu v State (2017) PLJ (Cr.C) 84 (PAK.)

 Aurangzeb v State (1999)4 PLJ Cr.C (SAC) 91(PAK.)

 Ahmad v State (1999)1 PLJ(SC) 105 (PAK.)

 Ali v State (2007) 3 MLD 1771 (PAK.)

 Ilyas v The State(2001) 1 PLD (SC) 333 (PAK.)

 Shehzado v State and others(1977) 1 PLJ (SC) 278 (PAK.)

 Ali v The State(1970) 2 (PCrLJ) 1292 (PAK.)

 Rasheed v State (2003) 2 SCMR 799 (PAK.)

 Shehzad v State (2002)2 SCMR 1009 (PAK.)

 Bhiva v state of Maharashtra (1963) 50 AIR (SC) 599 (IND.)

 Mohan v. State of Utar pardesh (1954) 41AIR (SC) 637 (IND.)

 Waheed v State (1995) 3 SCMR 1498 (PAK.)

 Mstshehnaz Bibi v. M.Liaquat (2007) 3 SCMR 1438 (PAK.)

 Masih v State(2002) 1PLD (SC) 643 (PAK.)

 Ghafoor and others v State (1984) 2 PLD(Lah.) 441(PAK.)

 Ali v The state(1967)1 PLD (SC) 545 (PAK.)

 Khaliq v The State(1970) 1 PLD(SC) 166 (PAK.)

 Mushtaq v The State (2005) Part III YLR 1728 (PAK.)

 Darwesh and another v. The State (2014) YLR 2223 (PAK.)

 Zardari v The State (2005)YLR 717 (PAK.)

 Ahmad v The State (2003) 3 MLD 1627 (PAK.)

 Mst. Laiba Anthony v. The State (2010) 2PCrLJ 531 (PAK.)

 Rasheed v The State (1970) 1PCrLJ 722 (PAK.)

 Alam v Riyasat (1983) SCMR 1127 (PAK.)

 R v Baskerville [1916] UKKB 658

 Davies v DPP [1954] UKHL 378.

 State v. Abdus Sattar 1985 (NLR) Cr. 254 (PAK.)

 Shah v. Ashiq Ali Shah etc. (1982) 2 SCMR 1110 (PAK.)

 (2009) SCMR 23 (PAK.)

 (1954) I A.E.R 507

 (1950) PLD (Lah) 115 (PAK)

 (1957) AIR (All.) 391 (IND.)

Muhammad Asad Abbas Raja __,Fakhar Abbas , andAhmar