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NAME: UMAIMA ALI

ROLL NO: 2K16/LLB
SUBJECT: QANUN-E-SHAHADAT 1984

SUBMITTED TO: SIR ASHFAQUE

DEPARTMENT: INSTITUTE OF LAW

© INTRAC 2017
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QNo#1. Define an ‘Admission’. Who are the persons by whom admission can be
made? Distinguish between Admission and Confession.

Ans. ADMISSION DEFINED IN ART 30 OF QANUN-E-SHAHADAT:

“An admission is a statement oral or documentary, which suggests any inference as to
any fact in issue or relevant fact and which is made by any of the persons and under
the circumstances, hereinafter mentioned.”
BLACK’S LAW DICTIONARY DEFINES IT AS:
“A voluntary acknowledgement of the existence of facts relevant to an adversary’s.”
IN CASE LAWS ADMISSION DEFINES AS:
Where admission is clearly and unequivocally made, such is the best evidence against
party making the same. [2000 YLR 1449]
Admission can be relevant but not conclusive through proof of fact which can be
proved to be incorrect or to have been erroneously made. [1999 SCMR 2578]
What kind of statement acceptable as admission?
The word statement is used in Art. 30-34 in its primary meaning of “something that is
stated” and communication is not necessary in order that it may be stated. [AIR 1959
S.C. 356]
Following statements may consider as admission with reference to Article 30-34 of
QSO 1984.
i. Oral statement
ii. Written/ documentary statement
Admission of party having executed document would be bound by facts contained in
such document. [1986MLD 150]
   III.            Automated information system generated statement
  IV.            Statements to binding party as amounting to his admission
Once the statements are proved to be signed by person concerned, they by themselves
must be held to prove the admissions contained in the statements signed by the person
concerned. It is not necessary to examine anyone else in proof of the statement. [AIR
1981 Guj.142]
What type admission may have?
Admissions are broadly classified into two categories:
i. Judicial Admission
ii. Extra judicial Admission
  I.        JUDICIAL ADMISSION
Judicial admissions are formal admissions made by a party during the proceedings of
the case. A formal waiver of proof that relieves an opposing party from having to
prove the admitted fact and bars the party who made the admission from disputing it.

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It is also termed as solemn admission, admission in judicio and true admission.

Admission in pleadings is judicial admissions. They can be made the foundation of
rights. [AIR 1986 All. 16]
    II.      EXTRA JUDICIAL ADMISSION
An admission made outside the Court. Extra judicial admissions are informal
admissions not appearing on the record of the case. [AIR 1957 All, 19110]

WHICH PERSONS CAN MAKE ADMISSION UNDER QANUN-E-

SHAHADAT ORDER
i. Parties to the proceedings himself
ii. Parties to the proceedings by their agent
iii. Parties to suit have derived their interest in subject matter him self
iv. Parties to suit have derived their interest in subject matter by their
v. Agent, pleader, attorney , counsel
vi. Persons Whose position or liability it is necessary to prove as against any
party to the suit
vii. Persons to whom the parties to a suit expressly referred for information about
the matter in dispute.

DIFFERENCE BETWEEN ADMISSION AND CONFESSION.

1. Only voluntary and direct When a confession falls short of actual
acknowledgment of guilt is admission of guilt it may be used as an
confession. evidence of an incriminating fact i.e. as an
admission of a fact.
2. A confession is made by the An admission usually relates to civil
accused person which is sought to matters and comprises all statements
be proved in the Court of Law. amounting to admission under Section 17
of the Evidence Act.
3. A confession is considered as a Admissions are considered as a
conclusive proof. substantive evidence, however are not a
conclusive proof of the matters admitted.
4. Confession made by one or more Admission by one of the several
accused jointly may be used as an defendants cannot operate as an evidence
evidence against a co-accused. against other defendants.
5. Confession is a matter of criminal Admission is a matter of civil suit.
case.
6. Confession given freely can be Admission related with the fact in issue or
treated as a conclusive proof of relevant fact; it is not a conclusive proof

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guilt. of evidence
7. Confession of guilt by an accused Admission of guilt by a person to a police
person to a police officer cannot be officer may be proved in civil proceeding.
proved in criminal proceeding.
8. Confession is taken according to Admission is taken according to the
the procedure stated in section 164 procedure stated in Code of Civil
of Code of Criminal Procedure Procedure 1908.
1898.
9. A confession must be made before Admission may be made to any person
the Judicial Magistrate or in front outside of the court.
of the court
10. Confession is a direct admission of Admission amounts to inference about the
guilt. liability of the person making admission
in a suit.

QNo#2. Who is an “Accomplice”? Weather a conviction can be awarded against

an accused on the evidence of Accomplice? Distinguish Between ‘Accomplice’
and ‘Approver’.

Ans. WHO IS AN “ACCOMPLICE?”

An Accomplice is a person who along with others has taken part in the commission of
crime, a partner in wrongdoing.
Definition of Accomplice:
The word accomplice has not been defined in the Evidence Act. According to
Judicial decisions, an accomplice is one of the guilty associates or partners in the
commission of crime or who in some way or the other is connected with the
commission of crime or who admits that he has a conscious hand in the commission
of a crime.
IS AN ACCOMPLICE A CREDIBLE WITNESS TO AWARD CONVICTION
AGAINST ACCUSED?
Though the word ‘accomplice’ has not specifically been defined in the Qanun-e-
Shahadat Order 1984, there are certain provisions that have been enumerated, not only
in the Qanun-e-Shahadat Order (QSO) but also in the Code of Criminal Procedure
(CrPC) 1898, which deal with the word ‘accomplice’. However, in its ordinary sense,
accomplice means a person who voluntarily participates in the commission of an
offence. The Federal Shariat Court, in its judgment titled Haider Hussain vs. Govt. of
Pakistan, interprets the word accomplice in the following words:
“An accomplice is a co-accused, an associate or partner who has such relation to the

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criminal act that he [or she] can be jointly charged with the other accused.”
Generally, an accomplice, under Article 129 illustration (b) of QSO, is
unworthy of credit and is an unreliable person for he or she has betrayed his or her
associates and must be punished with the others who have been accused. However,
under QSO 1984, for the purpose of extracting evidence against the greater offenders,
the evidence of an accomplice is admissible if he or she has been tendered a pardon
under section 337 of the CrPC 1898 because he or she gives evidence under a promise
of pardon that he or she will disclose all details he or she knows against those with
whom he or she acted criminally.
At a glance, articles 16 and 129, illustration (b) of QSO may seem like
conflicting provisions and may be confusing for law students and laypersons to
understand. Article 16 states the following:
“An accomplice shall be a competent witness against an accused person, except in the
case of an offence punishable with hadd; and a conviction is not illegal merely
because it proceeds upon the uncorroborated testimony of an accomplice.”
However, Illustration (b) of Article 129 states that,
“An accomplice is unworthy of credit, unless he is corroborated in material
particulars.”
The former provision pertains to the rule of law while the latter pertains to the rule of
prudence. Therefore, it can be concluded that both provisions are neither contradictory
nor repugnant to each other, rather both supplement to each other.
The Supreme Court of Pakistan in its judgment titled Federation of Pakistan vs.
Muhammad Shafi Muhammadi (SCMR 932) held that,
“In such a case of apparent conflict, the court is required to place such construction
which may harmonize the two provisions.”

DIFFERENCE BETWEEN APPROVER AND ACCOMPLICE

NO APPROVER ACCOMPLICE

1. Approver is one who approves or Accomplice is one who is guilty associate

give approval or partner in crime.

2. Approvers evidence in this regard Testimony of accomplice is valid without

needs corroboration. any coroborative gfgevidence.

3. Approver is one who confederate An accomplice confess himself a criminal

or who commits approvement. in the commission of crime.

4. Approver is always an where as an accomplice is not necessarily

accomplice. an approver as an accomplice or co-accused

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becomes an approver after he has been

tendered a pardon

QNo#3. Who may testify explain with its exception? What are the condition in
which the person/official not be compelled to give evidence

Ans. Competence Of Witness

Article 3 of the Qanun-e-Shahadat Order 1984 deals with the competency of a
witness. A witness is a person who deposes some relevant fact in an issue or testifies
in order to prove or disprove any matter in question. It is worth noting here that, the
competency to testify as a witness is a condition precedent to administer witness on
oath, and is a distinct matter from the credibility of the witness.
Article 3 and 17 of the Qanun-e-Shahadat Order 1984 Relevant Provisions:
Competency:
Article 3 of the Qanun-e-Shahadat Order 1984 provides that in general every person is
competent to testify before the court, the only parameter to determine the competency
of the witness is satisfaction of the court that the person before the court is capable of
giving testimony. However, this general principle is qualified by the Article itself by
providing the following exceptions to it.

EXCEPTIONS
Incapacity to be rational: In general if a person is unable to understand the question
put to them or give a rational answer, he or she is barred to testify as a witness to the
suit.
Extreme old age: If a person has lost his or her consciousness due to extreme old age
to the extent that he or she is unable to understand the question put forward or to give
a rational answer, the testimony is inadmissible before the court.
Tender age: A minor is restricted to testify any fact before the court if he or she is not
yet able to understand the question put forward or to give rational answers to the
said questions. But if, minority or tender age has not created any obstacle to
understand the question or to give rational answers, the testimony will be counted as
valid.
Any bodily injury: If bodily injury is of such type that it renders the witness unable
to understand the question put to him or to give rational answers, the witness’s
testimony is inadmissible. Seeing, speaking and hearing inabilities are examples of
such injury but if such inability can be overcome then the witness becomes valid.
Any mental injury: A mental incapacity also puts a bar on the ability to testify any
fact in an issue.
Perjury: Perjury is an offence, it is to deliberately give false evidence before the

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court. Any person who has been convicted for perjury is debarred from testifying any
fact before the court. Such person cannot be considered a trustworthy witness.
However, if in the opinion of the court said person is penitent, then the testimony can
be accepted.
Females in Hadood laws: Under Hadood laws the testimony of a woman is
inadmissible.
Witness of accomplice in Hadood cases:
Under Article 16 of the Qanun-e-Shahdat Order 1984 an accomplice is an admissible
witness.

Touchstone to determine the competency of witness:

Under Article 3 and 17 it is expressly stated that the Quran and Sunnah is the only
criteria to determine the competency of the witness. It can be construed as the duty of
the court to keep in mind the injunctions of Islam as laid down in the Holy Quran and
Sunnah. It has been determined by the court in PLD 185 Lah 730 that only when the
competence of a witness is challenged, the court is required to determine such
incompetence in accordance with qualifications prescribed by the injunctions of
Islam, as laid down in the Holy Quran and Sunnah.

Rule of determination of competence of a witness according to injunctions of

Islam: The jurists have put forward the concept of Tazkiya al Shahood as a rule to
determine the competency of a witness according to the injunctions of Islam. They are
of the view that only this rule contains all necessary instructions relating to the
competency of a witness.
Concept of Tazkiya al Shahood: According to Islam the concept of Tazkiya al
Shahood is defined as the “purgation of witness”.
Modes of conducting Tazkiya: According to Fatawa-e Alamgiry there are two modes
of conducting Tazkiya;

1. Open inquiry as to the competency of a witness; or

2. Secret inquiry into the competency of a witness.

Open inquiry is conducted by asking people to give their opinion by either raising
hands or by oral testimony. However, secret inquiry is conducted through writing –
this method is called “masturah”.
Case Law:
1. Nazir Hussain versus State (PLD 1984 Lah 509): Where the testimony of an
eight year old girl was accepted and she was considered to be a competent witness.
2. Idaho versus Wright 497 US 805 (1990): A child’s response to a leading question
should not be considered unreliable automatically, rather all of the circumstances

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surrounding the statement should be taken into account.

3. M.Feroz versus State (NLR 2003 Cr. 474): The rationale is that commonly child
witnesses are more likely to be taught the views that they should enunciate, often
through some inducement or fear.

FOLLOWING ARE THE CONDITIONS IN WHICH PERSON NOT

COMPELLED TO GIVE EVIDENCE
(1) JUDGES AND MAGISTRATES: No Judge or Magistrate shall, except upon the
special order of some Court to which he is subordinate, be compelled to answer any
questions as to his own conduct in Court as such Judge or Magistrate, or as to
anything which came to his knowledge in Court as such Judge or Magistrate but he
may be examined as to other matters which occurred in his presence whilst he was so
acting. Art. 4). Illustration: A, on his trial before the Court of Session, says that a
deposition was improperly taken by B, the Magistrate. B cannot be compelled to
answer questions as to this, except upon the special order of a superior Court.

(2)COMMUNICATION DURING MARRIAGE: No person who is or has been

married shall be compelled to disclose any communication made to him during
marriage by any person to whom he is or has been married; nor shall he be permitted
to disclose any such communication, unless the person who made it, or his
representative-in-interest, consents, except in suits between married persons, or
proceedings in which one married person is prosecuted for any crime committed
against the other. Art. 5)

(3) EVIDENCE AS TO AFFAIRS OF STATE: No one shall be permitted to give

any evidence derived from unpublished official records relating to any affairs of
State, except with the permission of the officer at the head of the department
concerned, w or withhold such permission as he thinks fit. (Art. 6).

(4) OFFICIAL COMMUNICATIONS: No public officer shall be compelled to

disclose communications made to him in official confidence, when he considers that
the public interests would suffer by the disclosure. (Art. 7).

(5) INFORMATION AS TO COMMISSION OF OFFENCES: No Magistrate or

Police Officer shall be compelled to say whence he got any information as to the
commission of any offence, and no Revenue Officer shall be compelled to say

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whence he any offence against the any information as to the commission of any
offence against the public revenue. (Art. 8)

(6) PROFESSIONAL COMMUNICATIONS: No barrister, attorney, pleader or

vakil shall at any time be permitted without his client's consent to disclose. (Art. 9):
(I) any communication made to him in the course and for the purposes of his
employment;
(ii) the contents and conditions of any document with which he can be acquainted in
the course and for the purposes of his employment ; or
(iii) any advice given to his client.
But however, such protection from disclosure does not extend to any communication
made in furtherance of any illegal purpose any fact observed by such legal adviser, in
the course of his employment.
Article 12 is a counterpart of Art 9. It provides as follows.
CONFIDENTIAL COMMUNICATION WITH LEGAL ADVISERS: No one
shall be compelled to disclose to the Court any confidential communication which
has taken place between him and his legal professional adviser, unless he offers
himself as a witness, in such case he may be compelled to disclose any such
communications as may appear to the Court necessary to be known in order to
explain any evidence which he has given, but not others.

QNo#4. Under what circumstances when facts not relevant, become relevant,
State with illustration.
Ans. WHAT FACTS NOT OTHERWISE RELEVANT BECOMES
RELEVANT: 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 improbable. (A.24).
Illustrations: (a) 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.

(b) The question is, whether. A committed a crime.

The circumstances are such that the crime must have been committed either by A, B,
C or D. Every fact which shows that the e could have been committed by no one else

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and that it was not committed by either B, C or D, is relevant.

FACTS INCONSISTENT WITH FACT-IN-ISSUE OR RELEVANT FACT:

Article 24 states that facts which are Inconsistent with any fact-in-issue or relevant
fact are relevant. There are five common cases of this form:
(1) Alibi: The presence of the person charged in another place;
(2) Non-access of the husband to prove illegitimacy':
(3) The survival of an alleged deceased person after the supposed time of death:
(4) The doing of a crime by a third person; and
(5) the self-infliction of the harm alleged

(1) ALIBI: The fact of presence elsewhere is essentially inconsistent with the
presence at the place and time alleged and therefore, with the personal participation
in the act. It is on this that the theory or alibi is based [See illustration (a) quoted
above).
The plea of alibi is put forth by way of defence. It means the absence of the
person charged with an offence from the place an occurrence at the time of the
occurrence.

(2)NON-ACCESS OF HUSBAND TO PROVE ILLEGITIMACY: The fact-in-

issue is whether A is the legitimate son of B. The fact that B had no access to the
mother of A for 270 days before the birth of A is inconsistent with the fact that A is
the legitimate son of B; hence it is admissible under this Article.

(3) SURVIVAL OF THE ALLEGED DECEASED: A is charged with the murder

of B on 31st December, 1986. The evidence is offered to prove that B was alive on
31st December, 1986 and also that he was seen in the New Year's rejoicing at a
certain place on 1st January, 1967. These facts are relevant, even though they are not
directly connected with the murder of B, i.e., they are inconsistent with the fact-in-
issue.

(4) COMMISSION OF CRIME BY A THIRD PERSON: A is charged with the

murder of B. A leads evidence to prove that B s murdered by C. This fact is relevant,
even though it is inconsistent with the fact-in-issue.

(5) SELF-INFLICTION OF HARM: A is charged with the murder of B. A leads

evidence that B had committed suicide. This fact is relevant though it is inconsistent
with the fact-in-issue.

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FACTS MAKING EXISTENCE OR NON-EXISTENCE OF FACT-IN ISSUE

OR RELEVANT FACT HIGHLY PROBABLE OR IMPROBABLE: Clause (2)
of Article 24 states that facts which make, by themselves or in connection with other
facts, the existence or non-existence of any fact-in-issue or relevant fact highly
probable, or improbable.
In a charge tinder the Arms Act, the fact that one of the accused was seen showing a
revolver to a companion will be relevant as making the fact-in-issue of possession of
the revolver highly.

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