vidence is confirmation, attestation and proof of a fact presented before a court or tribunal in support of the truth or accuracy of a claim. Evidence is used to establish the innocence or guilt of the accused. It can be in the form of witness testimonies or documents etc.

Evidence plays a critical role in dispensation of justice. It helps courts make fair decisions in cases involving divergent or contradictory claims. Fair and just decisions provide satisfaction to the parties involved and the general public. Prior to announcing a judgment, judges not only assess the evidence presented but also consider its admissibility, reliability and believability. Such precautions are necessary for ascertaining the truth of a matter of fact pending trial before the court or tribunal.

In Pakistan, courts consider several types of evidence before awarding a conviction to an accused person.

According to Article 2(c) of the Qanoon-i-Shahadat, evidence can be either oral or documentary. It may include physical evidence, last-seen evidence, expert evidence, corroborative evidence, hearsay evidence, forensic evidence, inculpatory and exculpatory evidence, medical evidence, character evidence, circumstantial evidence and forensic evidence. Each type of evidence is evaluated carefully to determine its relevance, reliability and strength in establishing guilt beyond a reasonable doubt.

There are two primary types of evidence: direct and circumstantial. Direct evidence immediately connects an accused person with the commission of an offence without the need for further inference. An example of direct evidence is the testimony of an eyewitness. On the other hand, circumstantial evidence provides evidence of a fact from which a person may reasonably infer the existence of another fact.

Circumstantial evidence is a recognised method for determining the guilt or innocence of an accused person in serious crimes. However, the use of circumstantial evidence is subject to scrutiny, and courts must ensure that the evidence is reliable and strong enough to establish guilt.

For convictions on the basis of circumstantial evidence, the circumstantial evidence must be conclusive, and there should be no gap in the chain of evidence. Direct evidence can be disregarded in favour of circumstantial evidence by the court when considering the famous maxim of law, “A man can lie, but the circumstances cannot.”

For capital punishment to be awarded based on circumstantial evidence, investigators must be equipped with and trained to use forensic science and preserve crime scene evidence.

When circumstantial evidence is convincing and rings true, even capital punishment can be awarded in cases of unwitnessed occurrences. However, in such cases the circumstantial evidence must disprove all possible explanations of the accused’s innocence.

The honourable Supreme Court of Pakistan has upheld life imprisonment and death sentences for many criminals convicted of different offences based on circumstantial evidence (2007 SCMR 778, PLD 2003 SC 704, 2011 SCMR 872, 2015 SCMR 710).

The Supreme Court has laid down comprehensive guidelines and principles for awarding capital punishment in criminal cases based on circumstantial evidence in the case of Naveed Asgher through a detailed judgment (PLD 2021 SC 600).

Convictions awarded to the accused based on the last seen evidence are also upheld by the Superior Courts of Pakistan. However, simply having seen or noticed the deceased in the company of the accused is not sufficient to sustain a conviction. Other circumstances must also link the accused to the commission of the offence. (PLD 1977 SC 515).

Due to the severity of the punishment involved, courts are meticulous in considering the evidence presented in a murder case. When it comes to serious crimes such as murder, the burden of proof to establish guilt beyond a reasonable doubt falls upon the prosecution.

In cases where there are no witnesses, culprits and hired assassins have been acquitted due to the unavailability of direct evidence. In such cases, punishment is awarded based on circumstantial evidence to ensure that the culprit does not escape justice.

For a conviction based on the accused having been the last seen with the victim alive, the circumstances must be wholly incompatible with the innocence of the accused. Such evidence is accepted with great caution and scrutinised minutely to ensure that no plausible conclusion could be drawn except the guilt of the accused, as established in 1997 SCMR 1416.

In cases of such evidence, the chain of facts must be such that no reasonable inference can be drawn except that the accused committed the offence after the victim was last seen in their company (1999 SCMR 2669).

In order to award capital punishment based on circumstantial evidence alone, police investigators must be equipped with modern scientific instruments and preserve crime scene evidence. Investigating officers and prosecutors should get proper training in the use of forensic tools.

This can help the prosecution and investigation officers in tracing the actual culprits and eventually deter crime. Hardened criminals often try to execute crimes in a way that avoids witnesses. Modern devices and scientific techniques in the hands of investigation branches can help trace the actual culprits of every unwitnessed criminal occurrence. These tools can also assist the prosecution branch in establishing charges against the culprits, leading to convictions and criminals being removed from the streets.

The writer is an advocate of the Supreme Court of Pakistan based in Peshawar. He has an LLM in constitutional law