RECORDING AND APPRECIATION OF EVIDENCE*

RECORDING AND APPRECIATION OF EVIDENCE* <!--[if gte mso 9]> RECORDING AND APPRECIATION OF EVIDENCE* By Justice Rahmat Hussain Jafferi, Judge, High Court Sindh My lord Mr. Justice Iftikhar Muhammad Choudhry the Hon'ble Chief Justice of Pakistan, Mr. Justice Sabihuddin Ahmed the Acting Governor of Sindh, my lords Mr. Justice Rana Bhagwandas Senior Puisne Judge, Mr. Justice Abdul Hameed Dogar, Mr. Justice Sayed Saeed Ashhed, Mr. Justice. Hamid Ali Mirza, Hon'ble Judges of the Supreme Court of Pakistan, my lord Mr. Justice Ghulam Rabbani the Acting Chief Justice, my distinguished companion Judges, Judges of subordinate Judiciary, the' underpaid, overworked and backbone of the judiciary. I an thankful to my lord the Chief Justice of Sindh High Court for providing me an opportunity to discuss with you on the topic "Recording And Appreciation of Evidence". The topic is divided into two parts and it is so vast that I will not be able to justify it in just 30 minutes. However, I will try to summarize it. * Paper read at the Circuit Judicial Conference, held in Circuit House, Larkana on 30-12-2005 In justice system the recording and appreciation of evidence play a very important and pivotal role in performing the functions of a judicial officer in deciding cases. It is the primary function of a Judge, trying a case to record the evidence which is relevant, admissible not to permit questions which are irrelevant, indecent and not to permit cross-examination which is harassing the witness not connected with the facts of the case, based on vague allegation and without shade of foundations. It has been held in [1] that the object of cross-examination is not to exhaust a witness and in his state of helplessness to do something which a counsel who is expert on the subject, intends to get. Therefore, the evidence should be carefully recorded in accordance with the provisions of Qanun-e-Shahadat, 1984. Consequently only that evidence should be recorded which fulfils the requirement of various provisions of Qanun-e-Shandat' Order. As such recording of inadmissible evidence must be avoided at all costs. Before recording evidence the Judges must see what type of evidence is relevant and admissible. Therefore judges should be well conversant with the provisions of Qanun Shahadat Order. It has been observed by going through the evidence recorded in various cases that evidence of witnesses is not being recorded properly. Inadmissible evidence is being allowed to come on the record consuming the precious time of the Court, which ultimately is discarded at the appellate stage. Therefore while recording the evidence a Judge should play an active role and participate in the proceedings actively so as to control to bring the inadmissible and irrelevant evidence on the record. It is pointed that all judicial evidence is either direct or circumstantial By direct Evidence is meant when the principle fact is attested directly by the witnesses, things or documents, to all other forms, the term circumstantial evidence is applied. Article 71 of Qanun e-Shahadat Order deals with direct and oral evidence which means that oral evidence must in all cases whatever be direct, that is, (1) if it refers to the fact which could be seen, it must be the evidence of a witness who says he saw it, (2) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it, (3) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by the sense or in that manner (4) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. Therefore, it should be ensured that while recording the evidence, the witnesses must fulfil the above mentioned conditions. If a thing is produced in the evidence it must be that particular item or article. If a document is produced in evidence it must be produced in original because its contents are either to be proved by primary or secondary evidence. In the first instance primary evidence, that is, the document in original is required to be produced in Court as required under Article 73. If conditions mentioned under Article 76 exist then the contents of the document can be proved through secondary evidence. It should be kept in view that production of a document and proof of document are two different subjects. The Hon'ble Supreme Court of Pakistan in the case reported in [2] observed that if documents are accepted in evidence, it will remain on record as exhibits and faithful copies of the originals and even if original document is produced and exhibited, it will also remain on record as primary evidence, it cannot be taken for granted as bearing of the signature of the person without proof that in fact it was written or signed by him by leading evidence fulfilling the conditions of proof as required under Art. 78 of Qanun-e-Shahadat Order. Therefore, it should be emphasized that when a document is produced its author or its signatory should also be examined to prove the document as provided under Article 78 so that the Court can rely upon the said document. Apart from other pieces of evidence a Judge while recording evidence should pay attention to the following categories of evidence: HEARSAY EVIDENCE. Hearsay means that evidence, which does not drive its value from credit given to the witness himself, but which, rests also in part on the veracity and competency of some other person. The Hon'ble Supreme Court of Pakistan in the case reported in [3] observed that the word hearsay is used in various senses, sometimes it means whatever a person is heard to say, sometimes it means whatever a person declared on information given by someone else. Normally, hearsay evidence is inadmissible, therefore, it should be ensured that such evidence should not come on the record. [4]. However, there are eight exceptions to the general rule which are mentioned in Art. 46: (1) when it relates to cause of death, or (2) is made in course of business, or (3) against interest of maker, or (4) gives opinion as to public right or customs; or matter of general interest; or (5) relates to existence of relationship, or (6) is made in will or deed relating to family affairs; or (7) is document relating to transaction mentioned in Art.26, paragraph (a); or (8) is made by several persons and expresses feelings relevant to matter in question. If any fact falls within the above-mentioned exceptions and fulfil the conditions mentioned therein then it is admissible, otherwise not. THE EVIDENCE OF AUDIO, VIDEO AND TAPE RECORDER Under Article 164 of Qanun-e-Shahadat Order, Audio, Video, Tape Recorder' and their transcriptions are admissible, but certain conditions are to be fulfilled, as observed by the Hon'ble Supreme Court of Pakistan in the cases reported in [5]. The evidence should be recorded by examining the person who actually recorded them as well as there must be evidence of the identity of voice and identity of person who is shown in the Video Tape and whose voice has been recorded: In forgery cases the burden of proof that a signature of a person on a document was forged would be upon that person who asserts such forgery. It has been observed while examining the various statements of witnesses recorded by the trial Judges that while recording the statement of police officer inadmissible evidence is being recorded in the shape of admission or confession of an accused person before a police officer or statement of witness before a police office. The Judges are overlooking the provisions of Art.38 of Qanun-e-Shahadat Order under which a confession before a police officer is inadmissible and while recording the statement of police officer disclosing the facts given to him by a witness overlooking the provisions of sections 161 and 162, Cr.P.C. under which a statement of a witness recorded by a police officer cannot be used by the prosecution. However an accused can use such statement and that too for a limited purpose to contradict the witness. The tendency of recording of above mentioned facts in the evidence. of investigation officer is increasing day by day as some. Senior Sessions Judges who were/are Presiding Anti-Terrorism Courts and Accountability Courts were/are recording such statements, therefore, the Judges should refrain from recording such statements. It has also been observed that the defence counsel raised objection about the admissibility of evidence in recording such evidence but the trial Judges did not pay adequate attention to the objection and observed that the said objection would be decided at the time of final arguments. It is incumbent upon the judicial officer to decide the objection then and there so that inadmissible evidence should not come on record which might subsequently prejudice the mind of the Court at the time of reading such evidence and the party concern may take steps to bring admissible evidence and produce it before it is too late. The said objection should be decided immediately in such a manner that recording of evidence should not be interrupted by passing short order or if some detailed reasons are required then such reasons can be given while writing the judgment. These facts have been pointed out by this Court in various judgments, one of them is reported in [6], but it appears that the Judges are not reading the law books or they just ignore the observations made by this Court to correct themselves in recording the evidence. It has also been observed that while recording the contradictions of a witness from his statement recorded under section 161, Cr.P.C. Judges are taking upon themselves by observing that such fact was recorded or not recorded in the police statement of the witness without realizing the fact that the said statement was not recorded by any judicial officer, and no presumption of genuineness is attached to the said statement. Under Art.140 of Qanun-e-Shahadat Order a procedure has been provided to obtain such contradictions. In the Book [7] Munir, C.J. pointed out as under:-- "It is of great importance to remember that, when a witness is sought to be contradicted by his statement to the police, his attention has got to be drawn to that part of the statement which is inconsistent with his statement in Court, by reading out to him that particular part of the statement from the copy, so that he may explain the inconsistency. Where a witness has made a long statement to the police, and the only question put to him by the defence is whether a particular exhibit is his statement, it is impossible for the witness to understand what portion of it would be used for contradicting him. When a witness has thus been confronted with the statement or particular portions of it,. only that much of the statement can be admitted in evidence with which he has thus been confronted and which has subsequently been duly proved. Portions of the copy, therefore, which have been so used should be marked and exhibited in case. The rule as to confrontation applied to illiterate witnesses ------------------------------------------------------------------------------‑ There is no presumption as to the genuineness of the statement contained in the police diary, and, therefore, the record of the witness's statement to the police has to be proved. This may be proved in any manner in which a writing is permitted by law to be proved, though ordinarily the officer who recorded the statement should be called to depose that the copy is a true copy of the record of the witness's statement to the police. In every case where a witness is confronted with a portion of his police statement which he repudiates, the police officer recording his statement should be questioned specifically with regard to that portion of the statement. The practice of merely asking the police officer perfunctorily whether a particular document represents the witness's statement as a whole cannot but be condemned." A Division Bench of this Court in [8] after relying upon above portion of the book, held that contradictions are required to be proved in the above manner. If such procedure is not adopted then the said contradictions cannot be taken into consideration. However a judicial officer shall make such observation with regard to the statement recorded by the Court such as 164, Cr. P.C. etc. as the presumption of genuineness is attached to the said statement and the record pertains to judicial proceedings. Apart from such judicial record no such observations shall be made at the time of recording the statement of witness in respect of contradictory statement made by him in Court from his 161, Cr.P.C. statement. It has also been observed that the judicial officers are not recording the statement of accused under section 342, Cr.P.C. properly. During my inspection I found that Judges had incorporated the charge in the statement of accused recorded under section 342, Cr.P.C. excluding the portions of offences and sections of law. It is brought to the notice of judicial officers that a statement under section 342, Cr.P.C. is recorded at any time. If some incriminating evidence is brought on the record then it can be put to the accused person and obtain an explanation of such incriminating evidence led by the prosecution. Finally at the close of the prosecution all the pieces of evidence on which a conviction can be based or material aspects of the case are required to be put to the accused to obtain his explanation but it should also be ensured that the questions should not be such which tantamount to cross-examine the accused person. It is well-settled principle of law that if a piece of evidence is not put to the accused in his statement recorded under section 342, Cr.P.C. then the said piece of evidence cannot be used against the accused for convicting him. As such, judicial officers must pay special attention in recording the statement of accused under section 342, Cr.P.C that can only be done if the Judges themselves go through the statement of witnesses before recording such statement to ascertain various pieces of evidence involving the accused in the case. It has further been noted, while hearing the appeals that the Judges are not recording the evidence of mashir of place of incident properly as while recording the statement of mashir, the Judges simply allow the mashir to state that "I went to the place of the incident where the police prepared the mashirnama and such mashirnama is produced in evidence." It is brought to the notice of judicial officers that mashirnama itself is inadmissible piece of evidence under Art.49 of Qanune-Shahadat Order. There is no provision in the Criminal Procedure Code or in Police Rules for preparation of mashirnama of place of incident. Police officer prepares it voluntarily during the discharge of his official duties rather than records made in the discharge of his official duties. It can be used for refreshing memory under Art.155 of Qanun-e-Shahadat Order subject to provisions of section 161, Cr.P.C. Specific Rule 2 (IX) Part C Chapter V of Federal Capital and Sindh Courts Criminal Circulars deals with the above subject. When a witness had seen the place of the incident then he must give each and every detail of such place and the Judges should specifically inquire from such witness to give all the details which he saw, at the place of the incident. Without mentioning such facts the evidence on the above subject would not be complete. Therefore, the Judges while recording the statement of mashir of place of incident should pay special attention and to bring all the facts on record which the witness had seen at the place of the incident so as to give complete picture of the scene of incident. While recording evidence, the law imposes heavy responsibility upon the Judges, therefore, very vast powers have been given to the Judges to tackle the situation to meet the ends of justice in the shape of Articles 131, 143, 144, 145, 146, 155, 161 of Qanun-e-Shahadat Order and section 162, Cr.P.C. The powers given under Art.161, are so wide that a Judge can ask any question whether relevant or irrelevant to discover or to obtain proper proof of relevant fact and may order the production of any document or thing and parties cannot raise any objection to any such question or order and on that question the parties cannot cross-examine the witness unless permitted by the Court. Nevertheless, the judgment should not be based on irrelevant and unproved facts as provided under first proviso to Art. 161. The Judges can exercise these powers in appropriate cases liberally to advance the cause of justice if any lacuna is left by the prosecution or the defence. This further emphasizes upon the Judges that they should take very active and positive role in recording the evidence. The subject is so vast that time does not permit me to elaborate and give other instances of recording the evidence and to pinpoint the inadmissible evidence which is being recorded or which is not required to be recorded in the statement by the Judges. Due to paucity of time, I am just closing this chapter so as to discuss other portion of the topic i.e. appreciation of evidence. An other function of the Court and most difficult in arriving at a proper and just decision of a case is the appreciation of evidence. If the evidence is not appreciated properly and carefully examined then there would be apprehension of miscarriage of justice. In appreciating the evidence, several pieces of evidence brought on record should be considered and the conclusion must be based on such evaluation of the total evidence brought on the record. It should be ensured that no piece of evidence should be ignored and no assumption should be made on the facts not mentioned in the evidence on the record. There are various types of evidence which are led in Criminal Cases and they require proper appreciation and examination. Basically main evidence consists of oral evidence which is based on the witnesses of the incident. The said witnesses are classified in various categories. Some of the categories and their basic rules of appreciation as given by the Hon'ble Supreme Court are as under: CHANCE WITNESS A chance witness is a person who just happened to be at the scene of offence or near it for no valid reason for being there. General rule is that the evidence of a chance witness cannot be considered unless it is corroborated by other piece of evidence. [9]. If an incident takes place at a public place like bus stand, railway platform, level crossing, shopping centre etc. and a person is present and witness the incident he cannot be considered as a chance witness though he may be residing far away from the place of the incident but he can be termed as a natural witness and his evidence can be relied upon. [10]. SOLITARY WITNESS It has been observed that trial Courts are discarding the evidence of solitary witness which stands uncorroborated but the Hon'ble Supreme Court of Pakistan in the case reported in [11] relied upon a solitary witness and held that there was no law that deposition of one witness should not be believed or accepted nor it was in contravention of any principle of law. Solitary statement of a witness when appearing reliable and confidence inspiring is deemed sufficient for bringing home guilt of the accused. [12]. It is pointed out that it is not the number of witnesses, which is important but the quality of evidence, that is to be considered. [13]. HOSTILE AND WON OVER WITNESS The Privy Council in the case reported in [14] observed that when the Court considers that the witness has been won over, his evidence in Court must be entirely ignored. The Hon'ble Supreme Court of Pakistan in the case reported in [15] observed that testimony of a hostile witness cannot be altogether left out of consideration and has to be considered like the evidence of any other witness, but with a caution, for the simple reason that he may speak in different tones. It is for the Court to decide in what voice he speaks, therefore, in such case evidence has to be decided by corroboration from independent and conformity with the remaining evidence. It has also been held in [16] that the primary question is not that the witness is hostile or disinterested whether a witness is honest or dishonest. A hostile witness may be truthful one, while disinterested witness may be bribed or pressurized to make a false statement. The Court should look to the quality of evidence whether probable or constant. Yet in another case [17] it has been held that the Court should take entire evidence into consideration of a hostile witness and to see whether any part of his evidence is worthy of belief in the light of other evidence. CHILD WITNESS Before recording the statement of a child witness, the Judges are required to record questions put to the witness and answers while giving their opinion about his or her competence. No set of questions are prescribed under Article 3 of Qanun-e-Shahadat Order. The Hon'ble Supreme Court of Pakistan believed the statement of child witness on the ground that the evidence of child witness possessing sufficient understanding can be believed and relied upon for conviction. [18]. Even the testimony of child witness of six years old was relied upon by the Hon'ble Supreme Court of Pakistan when it inspired confidence which was supported by medical evidence and last seen evidence [19]. In [20], it has been held that the evidence of a child witness is a delicate matter and normally it is not safe to rely upon it unless corroborated. It is a rule of prudence. Great care is to be taken that in the evidence of child element of coaching is not invalid. As a rule the evidence of a child witness is not be relied upon unless corroborated. APPROVER AND ACCOMPLICE Under Article 16 of Qanun-e-Shahadat Order an accomplice is a competent witness 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. Nevertheless under illustration (b) of Article 129 of Qanun-e-Shahadat Order an accomplice is unworthy of credit unless he is corroborated on material particulars. Therefore, the evidence of approver and accomplice requires independent corroboration before relying upon his evidence. [21]. It is further pointed out that an accomplice cannot corroborate another accomplice. [22]. However Supreme Court of India in [23] has given an exception to the above general rule and held that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used, save in exceptional circumstances and for reasons disclosed. For attracting the exception it should also be proved that there has been no chance of collaboration or consultation between the accomplices, they were not actuated by malice or influenced by inducement and their stories implicating the accused person agree with each other. The sequel merely points out circumstances which, if they exist, may lessen the degree of corroboration required, but it does not make the general rule of caution inapplicable. IMPARTIAL AND INDEPENDENT WITNESSES A witness neither related to complainant nor inimical to accused would not stamp his testimony necessarily with, truth. The acid test of veracity of a witness is inherent merit of his statement. Furthermore mere disinterest of a witness does not prove that he has come forward with a true statement. The statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. The principle that a disinterested witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible then it would lead to a very dangerous consequence. [24]. INTERESTED, INIMICAL AND RELATED WITNESS Mere relationship of a witness with the deceased or the complainant, would not make him an interested witness but interested witness is one who has a motive to falsely implicate an accused. Therefore, mere relationship of a witness with the complainant party is no ground to discard his evidence as interested witness but if he has a motive to falsely implicate the accused, then general rule is that, his evidence cannot be accepted without corroboration. [25]. Nevertheless, the general rule is not an inflexible. In [26] the Hon'ble Supreme Court of Pakistan mentioned certain conditions for accepting the evidence of interested witness without corroboration and when corroboration is necessary.. It has been observed that rule of prudence is to see:(a) whether the witness saw the occurrence and could identify the culprit; (b) whether they can be relied upon without corroboration; (c) whether the persons charged are not excessive; (d) a fact of corroboration in each case depends on particular circumstances of each case. In [27], it has been observed that interested witness is one who has motive to falsely implicate an accused. There cannot be an inflexible rule that an interested witness can never be accepted without corroboration. What corroboration is necessary?. The corroboration found in the case was (a) the number of culprits mentioned was such as was required for the job; (b) the persons mentioned were such as would be accepted to join in the attack. In [28] it has been observed that testimony of interested witness could be believed without corroboration if intrinsic worth of such evidence satisfies the judicial conscience of the Judge. CONTRADICTIONS, DISCREPANCIES, IMPROVEMENTS AND OMMISSIONS It has been found that the trial Courts are giving undue importance to contradictions in evidence without first examining them as to whether the said contradictions are major or minor. It is well-settled that the minor contradictions in the evidence carry no weight. The major contradictions are such under which either the story of the prosecution is changed or some material changes have been made so as to fit in the circumstances of the case or to make them consistent with other pieces of evidence such as medical evidence etc. Those contradictions carry weight and should be examined minutely before discarding the evidence of a witness. The contradictions may be in the testimony of same witness or between the evidence of some of several witnesses. The Judges should realize that the contradictions are bound to arise in the testimony of witnesses especially if their evidence is recorded after a long time of the incident, loss of memory and sense of observation of witness to perceive an event and give importance to different aspects of it. The Judges should also take note of the fact that the contradictions in the evidence of Investigation Officer occur because of the fact that he frequently deals with similar cases and may mix up the facts of one case with another, therefore, in appropriate cases the Judges should allow the Investigation Officer to refresh his memory under Art.155 by looking up the relevant case diaries. Keeping in view all these facts, the superior Courts have ruled that unimportant contradictions which are not material and connected with the actual incident should be ignored, particularly if the evidence of witness is recorded after months or years of the incident.[29]. There are cases in which the witnesses make improvements in their evidence. The rule is that if improvements are proved in accordance with law then such improvements are unworthy of reliance and the evidence of the witness requires corroboration. [30] APPLICATION OF MAXIM "FALSUS IN UNO FALSUS IN OMNI BUS" The maxim means false in one thing is false in all has not been followed by superior Courts and on the contrary they have ruled sifting grain of truth from the straw. [31]. Thus the stress should be on sifting of evidence and not on rejecting the evidence in cases where a witness has spoken lie. [32]. The grain in the evidence of a witness is that part of evidence, which finds support or corroboration from other evidence on the record of the case, which may be oral evidence, documentary evidence, circumstantial evidence, medical evidence or an evidence of an expert like a Ballistic Expert and Handwriting Expert. COURT WITNESS Under the law the prosecution is duty bound to place tangible evidence likely to throw light on the crime before the Court. Withholding of such evidence may likely cause miscarriage of justice and likely to be treated by the Court as flaw in the prosecution evidence. In such a situation it is obligatory for the Courts to examine such witnesses as Court witness. The Hon'ble Supreme Court of Pakistan approves an action of a Judge when he summons a material witness when parties avoided to produce.[33] F.I.R AND WITNESSES The Hon'ble Supreme Court in the case reported in [34] observed that mere non-mention of names of the witnesses in the F.I.R. is not always a sufficient reason for discarding the evidence of a person claiming to be eye-witness. In [35], it has been observed that if the circumstances of the case demand that the witnesses should have been examined. Inference adverse to the prosecution in such case could and should be drawn. In another case reported in [36] it has been observed that witness mentioned in the F.I.R. substituted, version of occurrence altered during the trial and injury of deceased not explained properly, benefit of doubt was given to the accused. RELUCTANCE OF NATURAL WITNESS TO APPEAR AS EYE-WITNESS It is common that natural and independent witnesses are reluctant to become eye-witnesses in an incident because these independent onlookers are not prepared to depose in Court about what they had seen so as not to risk the animosity of the assailants or his partisans, no adverse inference can be taken against the prosecution in such a situation [37]. In the last mentioned case it has been observed that it is common experience nowadays that due to apathy, the public at large are hesitant to come forward to witness the recovery in criminal cases for fear of reprisals in view of the present deteriorating law and order situation in the country. POLICE OFFICER AS RECOVERY WITNESS There is no rule that evidence of a police officer cannot be accepted as a recovery witness. The police officers are good witnesses like other citizens, in the absence of any material to indicate that they are biased or prejudiced for some extraneous reasons. [38]. CONFESSION Confession has not been defined in Qanun-e-Shahadat Order but it is included under the heading "Admissions". If the confession is recorded in accordance with law and it is voluntary and true then conviction can be based on the confession and such conviction is not illegal even if the confession has been retracted. A Bench of four Hon'ble Judges of Supreme Court in the cases reported in [39] repelled the argument that retracted confession was not sufficient in law to maintain conviction. However in subsequent authorities the Hon'ble Supreme Court of Pakistan confirmed the above rule but further added that as a rule of procedure the Court seeks corroboration of the same on all material particulars. [40]. In the last mentioned authority it has been observed that it is settled law that conviction of an accused can be based even on retracted confession if the Court is satisfied that the confession was made voluntary and true. However as a rule of caution and prudence the Court looks for other evidence and material on the record of the case to seek corroboration of the retracted confession. Thus the corroboration is not a rule of statutory law as there is provision in Qanun-e-Shahadat Order that confession should be corroborated, but it is a rule of procedure, prudence and caution. LAST SEEN It is settled that evidence of deceased last seen alive in the company of the accused is a weak type of evidence which cannot be relied upon without corroborative piece of evidence. The said piece of evidence was not considered enough to sustain conviction by the Hon'ble Supreme Court in [41]. CIRCUMSTANTIAL EVIDENCE When there is no ocular testimony and the case rests upon circumstantial evidence only, the fundamental principle of universal application is that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of other persons and non-compatibility of explanation upon any other reasonable hypothesis than that of guilt of accused [42]. In circumstantial evidence no link in the chain should be missing and all circumstances must lead to the guilt of the accused [43]. DYING DECLARATION Principle considerations of dying declaration are: (1) there is no specific forum before which dying declaration is to be made, (2) there is no bar that it cannot be made to a private person, (3) there is no legal requirement that dying declaration must be read over or it must be signed by its maker, (4) it should be free from influence, (5) to prove such dying declaration the person who recorded it should be explained, (6) such declaration becomes substantive evidence when it is proved that it was made by the deceased, (7) corroboration of a dying declaration is not a rule of law but it is a requirement of prudence, (8) such declaration when proved by cogent evidence can be made a basis for conviction. For maintaining conviction on dying declaration following conditions are required to be fulfilled:-‑ (1) Whether there was no chance of mistaken identity. (2) Whether deceased was capable of making statement. (3) After how long time after sustaining injury deceased made his statement. (4) Whether statement rings true. (5) Whether it was free from prompting from outside. (6) Whether deceased was a man of questionable character. The Hon'ble Supreme Court of Pakistan in [44] observed that dying declaration is a substantive piece. of evidence and can be used against the accused when there is nothing to suggest that the deceased has substituted an innocent person. Immediate apprehension of death is not acceptable to treat a statement as dying declaration, last incriminating statement made by deceased can legitimately be treated as dying declaration. [45]. However, incomplete dying declaration is not admissible in evidence as. held in [46]. Nevertheless, dying declaration recorded 22 hours after occurrence and relatives of deceased present with him during such period, such dying declaration was not relied on. [47]. DELAY IN LODGING OF F.I.R. Mere delay 'in lodging of F.I.R. is not enough to hold the prosecution version as. concocted or doubtful. Further, delay in lodging of F.I.R. can be ignored in the presence of trustworthy and convincing evidence on record [48]. DELAY IN SENDING ARTICLES TO EXPERT In [49] it has been held that delay in sending incriminating article to the concerned quarter for expert opinion cannot be considered fatal in the absence of objection regarding the same evidence tampered with or manipulated. APPLICATION OF SECTION 103, Cr. P.C. There is a general perception among the Judges that section 103, Cr. P.C. is applicable to every recovery. However it is brought to their notice that two essential conditions for application of section 103, Cr.P.C. are: first there should be a search, secondly, a search should be of a place. Search indicates seeking of something, which is hidden or concealed. If a thing is lying open or produced by the accused or a witness or pointed out by the accused or is found on the information given by accused person in custody it cannot constitute search for he purpose of section 103, Cr.P.C. Reference is invited to [50]. The said provision is also not applicable to a search of a moving vehicle or a Continue