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Judgment on lying witnesses: CJP spells out historical perspective of ‘false in one thing, false in everything’

March 21, 2019

ISLAMABAD: Chief Justice Asif Saeed Khosa has given historical perspective of “falsus in uno, falsus in omnibus” - false in one thing, false in everything – in the judgment of a three-member bench that he authored.

Falsus in uno, falsus in omnibus is a Latin phrase, he noted in the verdict on lying witnesses released on Wednesday and said the rule held that a witness who lied about any material fact must be disbelieved as to all facts because of the reason that the “presumption that the witness will declare the truth ceases as soon as it manifestly appears that he is capable of perjury” and that “Faith in a witness's testimony cannot be partial or fractional.”

Wikipedia says at common law it is the legal principle that a witness who testifies falsely about one matter is not credible to testify about any matter. Although many common law jurisdictions have rejected a categorical application of the rule, the doctrine has survived in some American courts.

The verdict said that in its original form, the rule was mandatory and the notion “was that the testimony of one detected in a lie was wholly worthless and must of necessity be rejected.” John Henry Wigmore, an American jurist who served as the Dean of Northwestern Law School from 1901 to 1929, traced the rule to the Stuart treason trials of the late 17th century.

In Trial of Hampden (9 Howell's State Trials 1053, 1101 (1684)), it was contended while referring to the rule of falsus in uno, falsus in omnibus that “If we can prove that what he hath said of my lord of Essex is false, he is not to be believed against the defendant.” In Trial of Langhom (7 Howell's State Trials 417, 478 (1679)), it was argued that “If I can prove any one point (in answer to that which he hath given evidence) not to be true, then I conceive, my lord, he ought to be set aside.”

Similarly, it finds mention in Trial of Coleman (7 Howell's State Trials I, 71 (1678)) that “[I]t would much enervate any man's testimony, to the whole, if he could be proved false in any one thing.” Barbara Shapiro, an American academic and author, notes that Michael Dalton's early 17th century manual for Justices of the Peace advised magistrates that when examining accused felons, they should discredit the whole of the accused’s story if any part proved false, according to the judgment.

Justice Khosa wrote that while attending to this matter, “We have felt that the deeper issue involved in the matter relates to the fact that the rule falsus in uno, falsus in omnibus had in the past been held by the superior courts of this country to be inapplicable to criminal cases in Pakistan which had gradually encouraged and emboldened witnesses appearing in trials of criminal cases to indulge in falsehood and lies making it more and more difficult for the courts to discover truth and dispense justice.

“We have undertaken an exhaustive exercise so as to trace the history of the said rule and to understand how the jurisprudence around it has developed in Pakistan while also adverting to the relevant Islamic and legal provisions dealing with the subject.”

The ruling said after a careful consideration of the history of the rule, the relevant Islamic provisions and the law of the land and after analysing the precedent case-law available on the subject “We have come to the conclusion that the view that the rule is not to be applied to criminal cases in Pakistan was formed as a result of taking into account extraneous and practical considerations, rather than legal and jurisprudential, and the said view is not in accord with the Islamic provisions on the subject besides militating against the criminal law of this country according to which deposing falsely in a court and commission of perjury entail serious penal consequences.”

While coming to this conclusion, the judgment said, “We first looked at the rule in its historical perspective, then traced through case-law as to how the rule was said to be not applicable in Pakistan and how it has been dealt with by this court and lastly analysed the Islamic provisions relevant to the matter of giving false testimony.”