A judge’s duty to sift the grain from the chaff


Hafiz Muhammad Azeem

A person is presumed to be innocent unless proved guilty, is the cornerstone principle of criminal administration of justice (hereinafter referred as CAJ), which further beef up by burdening the prosecution—to prove the case beyond a reasonable shadow of doubt. Just as, the accused is a favourite child of law, let a hundred criminals be acquitted, but one innocent must not be convicted, is another bedrock principle for a judge in dealing with CAJ. However, to prove the accused guilty, prosecution produces various types of evidence, often false and true and admittedly at ground level, witness often invariably add embroidery to the prosecution’s story. And the above captioned principles are designed to tackle with the embroidered, exaggerated and embellished evidence. Besides, the theoretical significance of falsus in uno, falsus in omnibus, for Pakistan, the doctrine of sifting the grain from the chaff is indispensable in criminal administration of justice. Falsus in uno, falsus in omnibus is a Latin phrase meaning, false in one thing, false in everything. The rule opined that, if a witness had lied about one material aspect in evidence, he would have lied about all, and such a witness’s deposition must be discarded in toto. Whereas, sifting the grain from the chaff underscores a duty upon the judge to “cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses”.
Since 1951, Pakistan’s jurist community followed the latter one, until 04 March 2019, when the Supreme Court reverses the order of preference. In its rhetoric judgment, the court’s rationale chiefly based on the assumption that this doctrine’s bases, as a precedent, was merely on 1951 Lahore High Court’s judgment. Furthermore, it makes the job of a judge more difficult and also sowed the seeds the unbridled falsehood in the depositions. The March 2019’s judgment further opined that it is not the judge’s duty to “get at the truth”, rather decide the matter in light of settled principles of law. It emphasised that rather practical considerations, a uniform, consistent and principle-based approach is required to foster the criminal administration of justice. Be that as it may, it is also necessary to remember that “a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. The criminal trial is meant for doing justice not just to the accused but also to the victim and the society so that law and order is maintained”. “The court has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt”.
But, courts should not “merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If, in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused”. In this regard, the Privy Council in Bankim Chander v. Matangini, (at page 628) held that “in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence”. In the same way, a judge’s approach must not lack practical considerations in administering justice. Because rendering the whole evidence false, on the basis of discrepancies, trivial in nature, would be injustice to the prosecution, as those could be caused due to “errors of observation, normal errors of memory due to lapse of time, mental disposition, shock and horror at the time of occurrence and threat to the life”. “The main thing to be seen is whether those inconsistencies and discrepancies, go to the root of the matter or pertain to insignificant aspects thereof”. If they do, then no such benefit should be available to it. But no deposition of witnesses can be error free and up to the mark, there are always normal discrepancies, howsoever, honest and truthful a witness may be.
Therefore, the tendency of courts should not be to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff”. Last but not least, in the very words of Judge Panchal of Indian Supreme Court, “it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out”. To conclude, the maxim “falsus in uno falsus in omnibus” being unsuitable, must not has its application in Pakistan and the witnesses should not be branded as liar. Lastly, at best, a Larger Bench of Supreme Court of Pakistan is requested to be formulated to analyze and to reevaluate with practical approach, the aftermath of termination of sifting the grain from the chaff.
—The writer is an advocate of the high court and teaches law.

Previous articleSaid the Robbin to the sparrow..!
Next articleIndia’s failed democratic experiments in Kashmir