Law of Evidence

M.Haseef Hamid F2017117052

Q1. A being tried for murder by rash and negligent driving is explained by the court that two
witnesses had testified that he was over speeding, and video of speed camera was also
produced, What does he have to say? Can A refuse to answer? If A says yes he was over
speeding, lenient view may be take, can he be convicted and punished for crime of 2nd
degree murder on the basis of this admission?
Ans. A There are multiple scenarios regarding to the questions given which will be ans in each
scenario in each part as under :-

1st .A being tried for murder by rash and negligent driving is explained by the court that two
witnesses had testified that he was over speeding, and video of speed camera was also produced,
What does he have to say?

A have a right to remain silent under No compulsive effect of Sc. 340(2) where No adverse
inference can be drawn if the accused does not opt to make a statement U/S 340(2) Crpc. or under
Privilege under Sc. 340 (2) Crpc for statement under Oath The accused person may if he does
not plead guilty may give evidence on oath in his own defense to disproof of the charges made
against him.

2nd .Can A refuse to answer?

Yes under Sc. 342 Crpc An accused cannot be compelled to give evidence against himself on oath,
but he can give a statement u/s 342 Crpc without oath. Under this section, the court may at any
stage of trial put questions to the accused for the purposes of explaining evidence against him. If the
accused refuses to answer or gives false answer, the court may draw such inference as it thinks fit.
Such answers may also be used in the ongoing or subsequent trials.

In an other scenario No compulsive effect of Sc. 340(2) Where the accused refuses to give his
defense or get his statement recorded as a witness under oath, the court would not be at liberty to
presume that the accused is guilty. For this is the duty of prosecution to prove the guilt of accused
beyond any doubt.

3rd.If A says yes he was over speeding, lenient view may be take, can he be convicted and punished
for crime of 2nd degree murder on the basis of this admission?
Under PLD 2018 Lah 28: 340(2) , while offering the accused to be his own witness in disproof of
the charge, he is attributed an ‘admission’ seeking lenient view. Under the constitution and the law
there is an unqualified protection against self incrimination & the provisions of Sc. 340(2) are
designed to merely enable an accused to offer himself as a witness in disproof of the charge alone and
not in support thereof, the exercise is to be carried out after administering oath upon accused and
with the of cross examination

Yes he can be convicted and punished for crime of 2nd degree murder on the basis of this
admission.

2. In a murder case, if a suspect is compelled to assist the police by producing the corpse, the
suspect provides the assistance requested, can he be subsequently prosecuted and tried for
murder on the basis of this evidence?

Ans.Privilege Under the Constitution& Protection under QSO

Article 13 (b) provides that no person shall be compelled to be a witness against himself when he is
accused of an offence.

A 15 of QSO provides that a witness can be compelled to answer any question put to him during his
testimony & he is not excused to answer on the ground that such answer will criminate him. The witness
is however given privilege that he shall not be arrested or prosecuted on such answer except for charge
of giving false evidence.

Yes can he be subsequently prosecuted and tried for murder on the basis of this evidence, as in
Schmerber v. California, 384 U.S. 757 .The fifth amendment prohibits compulsion of
incriminating evidence only insofar as the evidence compelled is testimonial in nature. Breath,
blood, fingerprints, and handwriting samples, for instance, are not testimonial as such, but are
physical evidence. They are means to identify the accused. Hence, the fifth amendment is no bar to
the compulsion of such evidence