Summary of Evidence! All You Need to Know

Summary of Evidence commonly known as S of E is an important document. It serves as the basis for the process of fair trail in military system. There are a lot of minute things which should be followed to ensure fairness and validity of the trial. After reading this article, you shall be well conversant with the process of recording summary of Evidence and all important considerations regarding this document.

Summary of Evidence (S of E)

When the case is adjourned for the purpose of having the evidence reduced to writing in accordance with clause (iii) of sub-rule (3), the commanding officer may either order a summary of evidence to be taken in accordance with sub-rules (4), (5), (6), (7), (8) or (9), or require an abstract of evidence to be prepared in accordance with Rule 13 A.

Where the commanding officer has ordered taking of summary of evidence, it should, if possible, be held the same day as the investigation. The commanding officer may direct another officer to take down the evidence, but an officer who has given material evidence at the investigation must not be appointed for this purpose.

The adjutant of the accused’s squadron or company commander should usually be detailed vide Sub-rule (4)(a) of Rule 13. Specimen Summary of Evidence is given at Page 521 of MPML Vol 1.

Responsibilities of the officer detailed to record a summary of evidence at different stages

The officer detailed to record a summary of evidence should:

Make himself acquainted with all the circumstances of the case and the testimony of the witnesses who gave evidence before the commanding officer, and carefully consider whether any additional evidence is relevant and necessary [see Rule 13 (4)]. Intelligent and patient investigation will often result in the discovery of a missing link in the chain of evidence, of corroborating evidence or of evidence tending to exculpate the accused. It may even save an unnecessary or abortive court martial.

Stage 1- Before taking down the evidence

Consider what offence or offences appear to have been committed.
Consider the essential elements of such offence, or of each offence.
Consider what facts and circumstances must be proved in order to establish not only the commission of an offence but also the commission of it by the accused, i.e., what facts are relevant to the issue.
Consider what evidence should be adduced in order to prove each material fact; in other words, how it is proposed to prove each of the necessary facts by admissible evidence. He will generally find it convenient to ascertain from each witness roughly what evidence that witness can give before actually taking down the evidence.

Stage 2- Reducing the evidence of witnesses to writing

Take down the evidence on oath or affirmation and arrange it, both in the statements of witnesses and in the summary, as far as possible so that events are set out in chronological order and the court may have a connected story to consider. A statement of evidence as to facts should commence by recording the place, date and time (if material) to which the evidence refers.
The summary shall be taken on oath or affirmation. Affirmation is not allowed in case of Muslims who should be sworn. The officer who records the summary of evidence, however, does not take oath or is affirmed vide Sub-rule (4) b of Rule 13.
The evidence of the witnesses and the statement, if any, of the accused shall be recorded in the English language. If the witness or the accused does not understand English, the evidence or statement as recorded shall be interpreted to him in a language which he understands and shall be signed by him, or if he cannot write his name, shall be attested by his mark and witnessed.
Ensure that only such evidence as is admissible in law is adduced. In reducing the evidence to writing, immaterial statements may be omitted and hearsay and irrelevant matter should be excluded vide Sub-rule (4) d of Rule 13.
Avoid attempting to tell the story of the crime by recording conversations at which the accused was not present.
Ascertain that any document intended to be produced is legally admissible in evidence. Every document intended to be produced to the court must be produced by a witness and described and, where necessary, identified by a witness able to do so. For example, where a document has been acknowledged as correct or signed by an accused, evidence must be given to show that he has acknowledged it or his signature must be identified. Mark and number documents according to order of production.
Arrange for the preparation, production and proof of plans where necessary. See Note 5e to PAA Rule 13.
Where precise information as to the locality of the offence is likely to be of use in understanding a case, a plan drawn to scale should accompany the summary of evidence submitted to superior authority. If it is considered necessary that matters of evidence should be shown on this plan, (e.g., place where the body was found in a murder case, or position of accused or witness), the plan should be in duplicate and these matters should appear only on one copy. If the plan is subsequently produced at the trial, the unmarked copy will be used, being put in by the person who made it. The matters of evidence “I then, if necessary, be marked on it in accordance with the evidence given at the trial, and a note to that effect made in the proceedings vide Sub-rule (4) e of Rule 13.
Record the evidence of witnesses as nearly as possible in their own words and expressions. When evidence is not given in English, it will be interpreted and recorded in.
If the accused has said to any person at any time anything by way of explanation or admission of any of the facts in issue, consider the circumstances in which the statement was made, and if it is admissible, let a witness be called to prove it.
Remember that, when it is proposed to tender evidence of an admission or confession, it is desirable that evidence should first be adduced by the prosecution of the circumstances in which it was made to show that it was voluntary, though under Pakistan law the onus lies upon the accused of showing that a confession made by him was not voluntary. (See PART I, Chapter V, para 41, et seq).
With regard to the attendance of witnesses, take advantage, where desirable, of the provisions of Rule 13(8). The written statements of such witnesses must be signed and certified as required by this rule.
Remember that Under Section 109 police and other civilian witnesses (who are not subject to the Pakistan Army Act) can be compelled to attend the taking of the summary by service of a summons under the hand of the commanding officer of the accused. The summons shall be in the form specified in the Third Appendix to these rules.
If a person cannot be compelled to attend as a witness, or if any, owing to the exigencies of the service or on other grounds (including expense and the loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing) be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence.
The accused may put questions in cross-examination to any witness, and the questions with the answers shall be added in writing to the evidence taken down.
At the close of the evidence of each witness, who is not cross-examined by the accused, make a note that accused declines to cross-examine”. See Rule 13 (5).
Ensure that the evidence of each witness is signed by the witness [Rule 13 (6)].
After all the evidence against the accused has been given, the accused shall be asked: “Do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing on oath or affirmation and you shall be liable to cross-examination on that statement which may] be given in evidence”. Any statement thereupon made by the accused shall be taken down and read out to him.
The formal caution provided for in sub-rule 6 must be given as soon as the evidence for the prosecution is closed. If it is necessary to take an additional summary, the accused must again be formally cautioned before he makes any further statement. The fact that he was duly cautioned should be recorded in the summary.
Ensure that the record of any statement made by the accused which shall be on oath or affirmation is prefaced by a note that he was formally “cautioned” [Rule 13 (6)].
The statement of an accused, if he so desires to make, is recorded on oath, if Muslim, and on affirmation, if non-Muslim. The accused is also liable to be cross-examined by the officer taking the summary of evidence. The statement of the accused is admissible in evidence if it is made voluntarily. See PAA Rule 13(6) and Article 44 of the Qanun-e-Shahadat,
Documents in a language other than English attached to the S of E should be accompanied by a translation in English vide Sub-rule (4) f of Rule 13.
Instances have occurred where the officer who recorded summary of evidence had to be recalled from distant places to appear as a witness before a court martial to produce the statement of the accused as no other person could produce that statement. In order to avoid delay in disposal of cases of this nature it is advisable that an officer or junior commissioned officer must be present at the time when an accused makes a statement. At the conclusion of the accused’s statement the officer or junior commissioned officer must sign as witness at the end of that statement besides the officer who recorded the summary of evidence. Such officer should not be the commanding officer, company commander of the accused or an officer or junior commissioned officer of military police and the regimental police.
If it is absolutely impracticable to detail the officer who recorded the summary of evidence to prove the statement of the accused, then in that event, the other officer or junior commissioned officer who was present can be called as a witness at the trial to produce the statement of the accused and prove that it was made by him voluntarily in his presence after he was duly cautioned under Rule 13(6) by the officer who recorded the summary of evidence and that he (the person producing the statement) recognizes the signatures of accused at the end of his statement. Any alterations made by the accused in his statement should be initialed by the officer or junior commissioned officer besides the officer who recorded the summary of evidence
The accused may call witnesses on his behalf and their evidence will be taken down and included in the summary; but he is not bound to call a witness vide Sub-rule (6) d of Rule 13.
If it is necessary to call at the trial some witness for the prosecution whose evidence is not included in the summary, an abstract of evidence given by him, should be supplied to the accused as early as possible vide Sub-rule (8) b of Rule 13. See Rule 118 also.
The provisions of sub-rule (8) will, in many cases, save time and expense, eg., where a civilian witness is required to prove some fact not really in dispute; but, such witness must, subject’ to the provisions of section 110, attend in person at the trial.
Enter at the end of the summary of evidence a statement that the requirements of Rule 13 (4), (5), (6) and (7) have been complied with, and sign the summary. The place and date should be stated.

Form of Oath

Oath or affirmation shall be administered to the witnesses or the accused as follows:-

FORM OF OATH

I…………………………… swear by Almighty God that what I shall state shall be the truth, the whole truth and nothing but the truth.

Main ……………………. Allah Ta’al ki qasam khakar iqrar karat hoon kih main jo kuchh kahaun ga sach kahoon ga aur sach ke ilawa kuchh nahein kahoon ga.

Form of Affirmation

I………………… solemnly affirm, in the presence of Almighty God, that what I shall state shall be the truth, the whole truth and nothing but the truth.

Main ………………… Kbuda-i-Ta’ala ko hazir jankar iman se iqrar karta hun, kih jo kuchh kahunga sach kahunga aur sach ki ilawa kuchh naheen kahoon ga.

Instructions for Recording S of E

When a witness or the accused affirms the word “affirmed” should be substituted for the word “sworn” and when a witness is a child who is too young to give evidence on oath the words “without being sworn” should be substituted for the words “having been duly sworn”.
Exhibits should be marked and signed lightly in lead pencil on the top right hand corner with the letters “L’ to ‘Z’ then “AA” to “ZZ” in the order in which produced. Whenever an exhibit is produced for the first time it should be noted in the margin.
If a witness declines to make a statement or omits material portions, the officer recording summary or additional summary may question to bring out the true facts whether against or in favour of the accused.
If a witness cannot write his name, it shall be attested by his left/right thumb mark and witnessed.
After making summary of evidence, if it is required to record additional evidence by calling fresh witness(es) or recalling the witness(es), “additional summary of evidence” should be recorded and the original summary of evidence should not be tampered with.
Serial number should be in continuance from the summary of evidence.
The officer detailed to take summary of evidence or make abstract of evidence, should obtain or frame tentative charge(s). After reducing the evidence to writing he should prepare draft charge-sheet and make out a table similar to the one given at page 528 of MPML Vol 1 to ensure that there is evidence to support every averment.
At the end of the S of E, officer recording Summary certify that “ Certified that provisions of PAA Rule 13 (4), (5), (6), (7) and (8) have been complied with.” However, in case of officer, this cert would be as “Certified that provisions of PAA Rule 13 (4), (5), (6), (7) and (8) read with PAA Rule 15 (1) have been complied with.”
For power to dispense with sub-rule (4), (5),(7) and (8), see Rule 26.
For memoranda for the guidance of officers taking down a summary of evidence, see Chapter XI, in Part 1 of MPML.
Forms of summons are given in the Third Appendix to these Rules.

Summary of evidence is an important document. It serves as the basis of court martial. A great care must be taken while recording S of E with regard to compliance of relevant rules and instructions. Any violation or non compliance of rules make the not only the document invalid but also whole proceedings of the court.