ALIBI AS A DEFENCE By: AATIR RIZVI[1] Abstract: Alibi or plea of alibi is a claim of innocence brought forth by the defendant in which he alleges that at the time when the offence with which he is charged was committed, he was elsewhere. The court will require the defendant to prove ‘alibi’ in accordance with law[2]. Since the defendant is looking for help from the court, he should be straightforward and avoid giving false alibi, for his own safety and protection from the grip of law. Rest assure the law of the land ‘is wiser than mankind’ and will never put its hand on a stranger- the one who can establish ‘alibi’ to the satisfaction of the court. Introduction: Alibi or no alibi, evidence has a role to play in the proof, that can be given of facts which have no other connection with the main facts of a case except this that they are inconsistent with a fact in issue or a relevant fact. Their inconsistency with the main facts of the case is sufficient to warrant their relevancy[3]. Article 24[4] of Qanoon-e-Shahadat Order, 1984 declares when facts not otherwise relevant become relevant. The word relevant means that any two facts to which it is applied are so related to each other that according to the common course of events, one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other[5]. Alibi: Alibi [Latin “elsewhere”] is a defense based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time. It is the fact or state of having been elsewhere when an offence was committed[6]. The requisites of a satisfactory alibi are; (i) that it should be pleaded at the earliest opportunity; and (ii) that it should cover the time of the alleged offence. Plea of Alibi: The burden of substantiating the plea of alibi and making it reasonably probable lies on the person who sets it up[7] i.e. defendant[8] and this burden is heavy and strict[9]. Where plea is not supported by any evidence, bail cannot be granted[10]. This plea should be raised at the earliest and must be supported by strong evidence[11], as it cannot be given weight unless same is proved very cogent, convincing and plausible evidence[12]. The failure to produce the evidence of alibi at the earliest opportunity is also a circumstance which may go against the accused[13]. The accused in order to succeed needs only produce evidence sufficient to raise in the court’s mind a reasonable possibility of likelihood of his being at the place where he asserts to have been[14]. Further, failure to establish alibi by accused cannot be taken as adverse circumstance against him[15], even setting up false alibi cannot lead to inference of guilt[16]. Witness: A witness who testifies that the defendant was in a location other than the scene of the crime at the relevant time or who supports the defendant’s alibi is termed as, ‘alibi witness’[17] and his testimony should be corroborated from other piece of evidence[18]. The court has to take into consideration plea of alibi supported by evidence, documentary or oral or even circumstances sufficient to raise the reasonable possibility of same being true[19] and it has to give cogent reasons and grounds for believing plea of alibi raised by accused[20]. Alibi as a rule of Evidence: An alibi is not an exception; it is a rule of evidence recognizing that the facts inconsistent with the fact in issue are relevant. It is taken as a defense and requires strict positive proof in order to brush aside incriminating material as adduced by prosecution[21] and where such incriminating material is lacking; plea can be considered[22]. Burden of proving the plea of alibi initially lies on the accused although said burden shall not be judged on the same criteria as applicable in the case of prosecution to prove its own case against the accused[23]. Hence the plea needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily as the burden is on the prosecution to prove that the accused was present at the scene and participated in the crime[24]. It is incumbent on prosecution to prove case beyond doubt, but accused is not devolved of such duty[25]. This plea has to stand the test of scrutiny on the basis of evidence[26], as attempt at alibi would remain futile when it is belated attempt and is not supported by any independent evidence[27]. Proof of Alibi: Onus of disproving evidence produced by accused lies on prosecution and evidence produced by accused is accepted as correct, unless inherently improbable or discredited in cross examination, otherwise accused has to show only reasonable possibility of plea being true[28]. As the plea of alibi is based on physical impossibility of being at the scene of crime[29] therefore the distance is a very material factor[30]. It is obviously essential to the proof of an alibi that it should cover and account for the whole time of the transaction in question, or atleast for so much of it as to render it impossible that the prisoner could have committed the imputed act; it is not enough that it renders his guilt improbable merely[31]. As stated earlier, plea of alibi is the weakest type of plea and cannot be given any weightage unless same is proved from very cogent, convincing and plausible evidence therefore, setting up a false plea of alibi does not lead to an inference of guilt but at the same time it can be a confirmatory circumstance to prove the guilt[32]. Accused has to discharge the burden by producing satisfactory, reliable and authenticating evidence that his presence at the place of incidence at the relevant time was not possible because of his presence at the relevant time at another place. He is not bound to disclose his version on the first available opportunity and if he has not done so, burden would not shift upon him to disprove the guilt, but disclosing of his version at the earliest is only relevant to show the stand taken by him which might ultimately help him in disproving the prosecution case[33] and prosecution is duty bound to prove his case beyond doubt[34]. However, it must be kept in mind that the accused has to prove his plea by producing evidence or atleast his plea should be supported by the attending circumstances and it should not be unfounded altogether[35]. Conclusion: Law is a rule of action on the one hand and an instrument of society on the other; and the philosophy of law is to deter actual and potential criminals from the commission of crimes through fear of punishment. The main purpose of such deterrence is to keep peace in the society. Legal theorists generally consider different aims of punishment as, correction, retribution or reformation of a criminal and at the same time the law seeks to safeguard the interests of the members of the society by providing rules like ‘audi alterum partem’ and ‘let nine criminals be let free’ than the one innocent punished wrongly. Meaning thereby, that it is the foremost responsibility of the court to watch with care that those not involved in the act, must not be harassed; must not be punished. Plea of alibi thus if put to logical conclusion, conveys to all a pre-ordained purpose of law, which is ‘justice’. Justice is the upholding of rights, and the punishment of the wrongs, by law. Justice again means to keep or to let the innocent free. After all, the one who can prove his ‘alibi’ must enjoy the respect of law, shouldn’t he? ------------------- [1]. MA; LLM (Cantab); Principal, Superior College of Law, Lahore. [2]. PLD 2001 Kar 279. [3]. Dr. Avtar Singh, Principles of the Law of Evidence, 2010, Central Law Publications, p-85. [4]. Facts not otherwise relevant are relevant: (1) if they are inconsistent with any fact-in-issue or relevant fact; (2) if by themselves or in connection with other facts they make the existence or non-existence of any fact-in-issue or relevant fact highly probable or in probable. Further Illustration (a) states; “The question is, whether A committed a crime at Peshawar on a certain day. The fact that, on that day, A was at Lahore is relevant. The fact that near the time when the crime was committed A was at a distance from the place where it was committed, which would render it highly improbable though not impossible, that he committed it, is relevant. See also Article 60, QSO, 1984. [5]. J F Stephen, Digest of the Law of Evidence (12th Ed. London 1948) quoted by IH Dennis in The Law of Evidence (1999), Sweet & Maxwell, p-45. [6]. Bryan A. Garner, Black’s Law Dictionary, 8th Ed., Thomas West. [7]. State of UP Versus Sughar Singh, AIR 1978 SC 191 at p-201; also see, Khushi Muhammad Versus State, 1983 SCMR 698. [8]. Johnson Versus Bennet, 393 US 253 (1968) available at supreme.justia/us/393/253/case.html last visited on 25-11-2011 at 17:00 pm PST. [9]. Vepa P. Sarathi, Law of Evidence, 6th Ed. Eastern Book Company, pp-38. [10]. PLJ 2000 CrC (Lah) 1649. [11]. 1987 PCrLJ 1373 (Kar). [12]. 2002 YLR 137. [13]. Muhammad Bashir Versus Mst. Rehmat Bibi, 1970 SCMR 478. [14]. Iqbal Mahmood Awan, Qanun-e-Shahadat Order 1984, (2003 Ed.), Mansoor Book House, p-61. Also see, Ameen Ullah Versus State, PLD 1982 SC 429. [15]. Suleman Versus State, 1981 PCrLJ 434 (DB). [16]. Muhammad Amir Versus State, 1971 PCrLJ 944 (DB). [17]. Bryan A. Garner, Black’s Law Dictionary, 8th Ed. Thomas West. Also see, Dadh Nath Panday Versus State of Uttar Pardesh, PLD 1982 SC 429. [18]. Ejaz alias Jajja Versus State, 1984 PCrLJ 2105 (DB). [19]. Ghulam Nabi Versus State, 1978 PCrLJ 186; Haji Qamar Ali Versus State, NLR 1978 Criminal 712. [20]. Muhammad Hanif Versus State, 2000 SCMR 1806. [21]. Muhammad Aslam Versus State, 1997 PCrLJ 1689. [22]. Mst. Zulekha Versus Bibi Abdul Samad, 1995 PCrLJ 1730. [23]. State Versus Saif-ur-Badshah, 1990 PCrLJ 1669 (DB). [24]. Vepa P. Sarathi, Law of Evidence, 6th Ed. Eastern Book Company, pp-38-39. [25]. Maqsood Javed Versus State, 1984 PCr.LJ 2923. [26]. Zar Ghulab Khan Versus State, PLJ 2004 CrC 53; NLR 2004 Criminal 26. [27]. Majid Ali Shah Versus State, NLR 2004 Criminal 153 (DB). [28]. Muksad Molla and Others Versus The Crown, PLD 1957 Dacca 503. [29]. See, Muhammad Yaqoob Versus State, PLJ 1982 CrC 343. [30]. Munshi Prasad Versus State of Bihar (2002) 1 SCC 351 quoted at Vepa P Sarathi p-39. [31]. Iqbal Mahmood Awan, Qanun-e-Shahadat Order, 1984, 2003, Mansoor Book House, p-60. [32]. 2001 YLR 804. [33]. 2005 YLR 3093. [34]. 1993 SCMR 417. [35]. 2004 MLD 200.
Posted on: Mon, 22 Sep 2014 16:31:45 +0000
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