Qanoon Shadat Notes
Qanoon Shadat Notes
Qanoon Shadat Notes
Course Contents:
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There are two types of laws, i.e., substantive and procedural. Substantive law
is related with the person and property while procedural law deals with the
procedure as to how substantive law is proceeded in a court of law.
If a person does not fulfill legal obligation, how he can get remedy? How his
rights are enforced? For example, a contract is formed between two
persons, and one of them commits breach of contract. It is fact and alleged in
court that it was not performed. He pleads a fact, which is breach. What is the
procedure by which breach is proved? How he establishes that fact stands
exist? It is only evidence, which proves the existence of fact.
Court itself takes notice of question of law. Parties are not required to resolve
the question of law but only question of fact. Parties have to just prove the
existence of fact.
Before the present Qanun-e-Shahadat Order there was the Law of Evidence,
1872. It was rearranged during the Islamization process in the Zia regime. It
is more or less same as earlier. Differences are as follows:
Under old law provisions of the law were called sections while in new one
they are called Article.
Title of the law has been changed from the Law of Evidence, 1879 to Qanun-
e-Shahadat Order, 1984.
Few Islamic provisions have been introduced, e.g., number of witnesses have
been increased to four for Hudood crimes.
If the new provisions do not fulfill the requirement of the case then old
provisions remain applicable. Finally it is more or less the same law, same
ruling, same judgement, same decisions, and same cases.
Whether evidence once given on one court can be adduced (cite, offer,
present) in all courts? No, it is accepted only where court or person
administers it under oath. Arbitrator does not take evidence under oath so
evidence taken by him is not admissible in courts.
There may be more facts in issue than one. Relevant evidence is given to
prove or disprove the facts in issue. Denial of B can be proved through the
Cheque issued to him while the receipt of Money Order can prove repayment.
Kinds of evidences: There are certain kinds of evidence, e.g., oral and
documentary, primary and secondary etc. Primary evidence contains original
documents or postmortem reports. Secondary evidence contains copy or
attested copy of the original document. Secondary evidence is allowed where
primary evidence is not available. Documentary evidence excludes oral
evidence being authentic and preferred. Following are kinds of evidences:
1. Oral: Statements made by witnesses in Court.
3. Conclusive: Evidence of a fact which the Court must take as full proof of
it, and which excludes all evidence to disprove it.
8. Hearsay: What someone else has been heard to say, What the solider
said, as contrasted with the direct evidence of a witness himself, oral or
written statements made by persons not called as witnesses? Hearsay
evidence is, in general, excluded, but the repetition or another persons
statement is sometimes permissible, and there are express exceptions of
the rule against hearsay.
11. Derivative: It is evidence, which derives its force from some other
source.
13. Prima facie: It is evidence of fact, which the Court must take as proof of
such fact, unless disproved, by further evidence.
15. Secondary: It is the evidence other than the best evidence, and which is
rejected if primary evidence is available, e.g., oral evidence of the
contents of a lost document such as a Will.
Theft: Where property is removed from the custody of its owner with
unlawful intention, it is called theft. It has four ingredients such as:
1. Dishonest intention: Where property is removed without unlawful
intention and later on dishonest intention is formed, it not called theft but
misappropriation. Dishonest intention must be there at the time of
removal of property.
Under the offence of theft owner of the property does not know whether
property relating to him is removed while he gives possession of his property
himself to other person where misappropriation of property may take place.
Result of breach of trust form misappropriation of property.
Mere removal of moveable of property from the possession relating to other is
insufficient to constitute either the offence of theft or misappropriation of
property.
Judicial notice: Where something is not produced then court itself takes its
notice. This notice is called Judicial Notice. This notice is taken where there
is no need to prove something, e.g., Map of Pakistan, question of law,
administration, division of cities or districts or provinces etc.
A is shopkeeper and B is his friend and joins him in his shop. C comes to shop
and A introduces B as owner of the shop. C deal with B. A dispute arises
between shopkeeper and C. A cannot deny the truth being B as owner of the
shop. Burden or onus of proof (PJQ iBI) lies on the shoulders who alleges
(claims, ascertains). Burden or onus of proof shifts to him who fails to prove
the facts in issue.
In criminal cases prosecution has to prove the fact in issue because she takes
in court case and alleges the guilt of accused. In civil cases person who
alleges has to prove it. Prosecution has to prove the claim by evidence, which
is beyond the reasonable doubt. In civil matters suit is adjudged with
principle of preponderance (majority, supremacy, dominance).
Witness who testifies the facts in issue is examined and his evidence does not
rest accepted without preponderance. Court does not rely on evidence
without cross-examination. Leading questions (pursuance during the
proceeding) are not permissible. Court also examines the credibility of
witness. Arguments and cross-examinations are the tools to crystallize its
truth. Sometimes witness is called again to testify the truth if the document
misplaces.
5. Magistrates: They are also subject of this law and record evidence
under this law.
6. Martial Law Courts: They are also bound to record evidence under this
law.
Court: As far as evidence law is concerned court means any person, tribunal,
or authority, which exercises powers, invested to her as per law of land.
Need of evidence: Court has to arrive on truth. Court does not know the
actual and factual position of the facts in issue. How a court may arrive to
truth? It is only evidence, which brings court to truth. Only evidence
concludes such statement, which is given orally and admissible.
The test of the judicial authority is that officer empowered takes evidence on
oath. Executive officer may also use quasi-judicial powers. Statement is not
termed as evidence as it is not taken under the Qanun-e-Shahdat Order. Both
Code of Civil Procedure and Code of Criminal Procedure are different but the
evidence has same relevance.
Fact: We know that all evidences are adduced before court of law either
relating to fact in issue or relevant to fact. A person may be habitual of
sleepwalking. He may inflict slap to other during sleepwalking. Trespassing is
also an offence in the eyes of law. Trespasser may think that he is entering in
his home but actually it is not his home. This is state of mind. Offender makes
his mind to commit crime. Negligent person may also commit offence.
Anything existence or non-existence of which can be perceived is fact. State
of mind is also fact, which can be perceived and proved. Probable
consequence of stoning is grievous hurt or injury however its knowledge
constitutes fact.
1. Age limit: Law does not provide any age limit for the competency of
witness but he should know and retain in his memory the facts.
5. Islamic rules: s
6. All persons: s
7. Tazkia: s
8. Eyesight: s
9. Hearing: s
10. Perception: s
11. Smelling: s
13. Honesty: s
3. Old age factor: Old age does not matter but it matters a lot. Person who
due to old age factor could not understand the rationality of the questions
and answers put to him in court is not competent witness.
7. Unable to understand: s
8. Lunacy: s
9. Slander: s
Judges and Magistrates: Judges and Magistrates are not bound by law to
give answers of the questions such as:
Immunity also prevents the possibility of the false evidence because person,
having privilege always produces truth because he cannot be trapped on the
truth he produces. S. 182 of Pakistan Penal Code provides it punishable.
Immunity of married persons: Under this law a married person shall not
be:
It is notable thing that privilege remains exist even after divorce takes place.
Person making evidence may waive off privilege at any time after divorce.
Privileges are provided either on the ground of natural love and affection or to
evade from false evidence thus no prosecution or litigation may take place on
the ground of facts revealed from the evidence, which is privileged.
Information disclosed before marriage does not provide privilege on
subsequent marriage. The only test is the information is disclosed during the
subsistence of marriage. Once a privilege is always a privilege. It can be
waived off but it cannot be ceased to exist (abandoned or discarded or
discontinued or ceased). It is not available for the matters before the
marriage but it remains available after the divorce has taken place. During
the marriage if spouse appears as witness for the offence committed against
third person, cannot produce evidence until second spouse consents. But if
both spouses are parties against each other, then consent for evidence goes
immaterial.
Immunity on state matters: Matters of state may or may not be disclosed.
Matters which are declared confidential or against public policy are not
disclosed if come into knowledge. If they are required to be disclosed, then
permission of the departmental head is required to do so, which may or may
not be granted. Nuclear programme is such example. Person who knows the
unpublished matters may refuse to disclose in evidence on the grounds of
either against public policy or sensitive matter. Head of the department may
grant permission for evidence if there is no apprehension of violation of public
policy.
Where client says to his advocate that he has to get property by means of
forged documents and you have to protect me is not covered or protected
from disclosure.
Person who may criminate by producing evidence shall not be tried on the
statement he gives as witness. He may be compelled to give evidence but his
evidence, whatsoever is, cannot be used against him as confession. This
protection does not amount privilege, but it is mere protection. Under
privilege person cannot be compelled to produce evidence but under
protection he may be compelled to produce evidence but his evidence shall
remain evidence and not confession.
Person who has not privilege, if is compelled to give evidence and he refuses
to give evidence is supposed of guilty of false evidence and if he gives true
statement then he may be charged. By this way truth remains concealed. In
order to find out the truth to reach on conclusion, law gives protection to
witness to ensure the justice.
Exception to this rule: Pakistani law provides an exception to this rule for
the offences, which come under Hudood crimes (AjU efY). Hudood crimes
are those, which are, declared crimes in Quran expressly and their
punishment has been fixed under Quran. They are not compound-able. They
are seven in number including theft, alcohol consumption, adultery, dacoity,
sedition, slander of woman (defamation), and apostasy. Accomplice is not
competent witness in Huddon crimes. Only Muslim adult male witnesses,
about whom the Court is satisfied, having regard to the requirement of
tazkiyah al-shuhood (erA lM), that they are truthful persons and abstain
from major sins (Kabir jJ), give evidence of the accused having committed
the offence liable to Hadd.
In all other matters than of Hudood crimes, mere one witness is sufficient for
conviction.
Financial and future obligations need two males or one male and two females
witnesses for conviction.
Relevancy of facts: There are two kinds of facts for which evidence is
adduced in court, i.e., facts in issue and relevant facts. Facts in issue are
those which are alleged by one party and denied by the other on the
pleadings, in a civil suit; or alleged in the charge and denied by the plea
of not guilty in a criminal case, so far as they are in either case material.
On the other hand, the relevant facts are all those facts which are in the eyes
of law so connected with or related to the fact in issue that they render the
latter probable or improbable or roughly throw light upon them.
A files suit against B for the recovery of Rs. 5,000/-. If B admits the borrowing
of Rs. 5,000/- then no fact in issue shall be framed thus no evidence shall
have be adduced to prove the fact. But if B refuses the fact of borrowing of
Rs. 5,000/- then A shall be required to adduce evidence to prove the lending
of Rs. 5,000/-. Fact in issue is the matter undecided. Only evidence may prove
the truth of the facts. Any fact against which court needs evidence to prove it
is called fact in issue.
How the relevancy is proved? Law provides list of relevant facts, which more
or less covers all the matters, which may occur.
A good example of what different acts constitute one and the same
transaction, is afforded by a case where the prisoner in order to remove a
cart of which he committed theft, broke into the cattle-shed of a neighbour of
the cart owner, took out the bulls and drove off the cart to a distant place. It
was held that the house breaking into the neighbors shed was essential to
the theft of the cart and bulls of the owner, so that one could not be done
without the other. And therefore, the two acts, i.e., house breaking and
removal of the cart and the bulls formed parts of the same transactions.
In a house breaking, the person who cuts the glass of the door or window
either on spot or before or later, is relevant fact in the case of house
breaking.
Extra-judicial confession Article 37: The word confession has not been
defined in anywhere in law. A confession is an admission made at any time
by a person charged with a crime, stating, or suggesting the inference that
he committed that crime. The value of extra-judicial confession is not very
high.
Extra-judicial confession is made before the private person, i.e., other than
Magistrate or Police Officer. Judicial confession is made before Magistrate
having jurisdiction in the case.
Also under Article 39, confession made by accused before Police Officer while
custody cannot be proved against him unless it is made in the immediate
presence of Magistrate. The presence of Magistrate secures the free and
voluntary of the confession and the confessing person has an opportunity of
making a statement uncontrolled by any fear of the police.
Where police already knows the happening of the crime, then the information
provided by the accused are not called confession.
4. Offender is put to jail as jail prevents offender himself and others to suffer
from offences.
Joinders of the same crime are not subject of the confession, which is made
from one of them. However such confession is used as circumstantial
evidence against the rest of offenders.
Illustrations: A and B are jointly tried for the murder of C. It is proved that A
said: B and I murdered C. The court may consider the effect of this
confession as against B.
A is on his trial for the murder of C. There is evidence to show that C was
murdered by A and B, and that B said: A and I murdered C.
This statement may not be taken into consideration by the court against A, as
B is not being jointly tried.
2. The confessing accused must be tried jointly with the accused against
whom the confession is sought to be used.
3. The confessing accused and the accused against whom the confession is
sought to be used must be tried for the same offence, or for attempt, or
abetment thereof.
4. The confession must implicate the maker substantially to the same extent
as it implicates the accused against whom it is to be used.
Oral evidence Article 70: Facts can be proved by oral evidence where
contents of documents are not available. But it should be direct oral
evidence. It means that person who is eyewitness must appear in court to
testify the truth of the facts. Since he has seen the facts on spot in his
presence therefore his presence in court strengthens the weight of evidence.
Hearsay evidence is not direct evidence. Law demands that there must be
best direct evidence. Document is preferred on oral evidence. Where written
matter is in question, document is the only thing, which can prove the truth
of the dispute. Primary evidence is preferred on secondary evidence.
Secondary evidence is given where court permits it. Party itself cannot decide
whether primary or secondary evidence is to be produced. It is only court,
which decides the matter on merit. It is allowed in the cases where
circumstances allow. Destruction of documents by way of theft, flood,
earthquake, fire etc. may advance the need of secondary evidence. Where
court satisfies, secondary evidence is permitted. It should be taken into
consideration that intentional or fabricated or artificial destruction of
document is not acceptable as good ground to advance oral evidence.
Direct oral evidence Article 71: Oral evidence must be direct as seen,
heard, perceived, or held that opinion on such grounds.
Law says categorically that oral evidence must be direct, that is, if it refers to:
Exception: Although in case of oral evidence it must be direct but there are
some exceptions to this rule which are as follows:
How oral evidence is got recorded: There are three main methods
whereby oral evidence can be got recorded, such as:
2. Written recording: Where witness has all requisite qualities except the
power of speaking, i.e., he is dumb (mute, tongue-tied, silent, speechless),
but he may write, he may give evidence by way of writing.
1. Oath: In first place, court takes oath from the witness. It is understood
that the person giving evidence under oath is true. But if, later on, it is
revealed that the evidence given under oath was false, the same
punishment shall be imposed to the person who gave false evidence.
Punishment on false evidence is not forgiven. False evidence is not
tolerated. Particularly when death penalty is imposed on false evidence,
the person upon whose false evidence, innocent person is hanged is also
punished with death penalty. In other cases imprisonment upto ten years
can be given.
There are some exceptions to the Hearsay rule of the evidence. Secondary
evidence of any oral statement is called hearsay evidence. The repetition by
a witness of that which he was told by someone else, who is not called as a
witness is hearsay, and is therefore, as a general rule, inadmissible. The
reasons for this rule are obvious. We can generally trust a witness who states
something, which he himself has either seen or heard; but when he tells us
something, which he has heard from another person, his statement is
obviously less reliable thus unsatisfactory.
This evidence is admissible only in case where person injured has been
died after getting record of his statement. If he is alive, he must be
produced in court for evidence. In another case, this statement must be in
writing.
Value of the evidence: Evidence given in such a manner has the same
value as evidence given in the ordinary manner. Death penalty may be
given upon this evidence. It is as good as evidence, as ocular evidence is.
Court keeps in view of the smell truth in the evidence.
Case: In an English case an English lady received grievous injury and was
near to death. She was not in such a position to tell her story. Policeman
said her to move her head in yes or no position when he will ask
questions from her. She replied all his questions, which he recorded. Death
penalty was given on this evidence.
Case: In another case witnesses told the story of the person killed. They
said that bullet was fired within 10 to 12 feet distance. After getting injury,
victim turned back and saw his enemy with gun and then recognized the
guilty person who had fired over him. This evidence was not admitted on
the ground that it is not possible for an injured person to turn back for the
recognition of murderer within such distance against the injury caused by
such high velocity gun.
Case: In another case an injured person was taken into hospital and was
kept in lawn for a longer time. His statement was recorded quite after his
arrival in hospital. Evidence was not accepted on the grounds of suspect
that doctors might have tried to fabricate the evidence. Since the smell of
truth was suspected therefore evidence not admitted.
6. Proof of Will: Where Will is written and got registered, shall be enough
to prove the existence of relationships. Personal appearance shall become
immaterial. When court issues the certified copy of Will, which is called
Probate, proves the relationship. Special mean of knowledge of the facts
of relationship proves the case. Pedigree tree is such a thing to prove
relationship. Family settlement, which is written, is also proof of
Will. Tombstone (memorial, headstone, or piece of stone fixed on grave
(iAl `)) can also be determinant factor. Family portrait in which all
relatives are shown is also proof. It should be noted that this writing must
be made before the dispute is arisen. Fabrication can be put into writing
when dispute arises, therefore, statement produced in court should be
prior written.
These exceptions are based on the principle that in matters of public right the
new party to the second proceeding, as one of the public, has been virtually a
party to the former proceeding and therefore, he is properly excused. For the
application of this Article two conditions are necessary. Firstly, that the
judgement must relate to a matter of public nature and secondly, that it
satisfies the first requirement that it is not a judgement which is admissible
under either of the last preceding two Articles.
The cases contemplated by this Article are those where a judgement is used
not as res judicata or as evidence more or less binding upon opponent by
reason of the adjudication which it contains, because judgements of that kind
had already been dealt with under one or other of the immediately precedent
Articles. But the cases referred to in this Article are such as the Article itself
illustrates viz., when the fact of any particular judgement having been given
is a matter to be proved in the case. As, for instance, if A sued B for slander,
in saying that A had been convicted of forgery, and B justifies upon the
ground that they alleged slander was true, the conviction of A for forgery
would be a fact to be proved by B like any other fact in the case, quite
irrespective of whether A had been actually guilty of the forgery or not.
A judgement recovered against a surety will be evidence for him to prove the
amount which he has been compelled to pay for the principal debtor but it
furnishes no proof whatever of his having been legally liable to pay that
amount through the principals default.
If A gets a decree for the possession of land against X and Y, and Xs son
murders A in consequence thereof, the existence of the judgement is relevant
as showing the motive for the murder.
For example, probate has to issue by District Judge and not by Magistrate. If
issued by Magistrate, can be challenged.
Relevancy of third partys opinion Article 59: There are certain things
which alone court cannot ascertain. Court needs help of expertise. Court may
need expert opinion in following cases:
5. Finger impression.
Persons who help in such matters are termed as experts. Court forms its
opinion with the help of expertise. Their opinion is relevant.
As a general rule a witness is allowed to speak such facts only as are within
his personal knowledge, i.e., which he has seen or heard or otherwise
perceived with his senses. His opinion or belief as to the existence or non-
existence of a particular fact is irrelevant because that is within the exclusive
knowledge of the court or the jury, who are to form their own opinions from
the facts placed before them by witnesses. Sometimes, however, cases come
up in courts, which involve matters that are beyond the range of common
experience or common knowledge. In those cases, to assist the court in
coming to a correct conclusion, the opinion of those who have had training or
experience and are consequently experts on the particular matters are
allowed to be given. Expert opinion is relevant and admissible merely to aid
the court forming its opinion. The court can come to its own conclusion
independently of experts opinion.
Illustrations: The question is, whether the death of A was caused by poison.
The opinion of experts as to the symptoms produced by the poison by
which A is supposed to have died, are relevant.
The question is whether A, at the time of doing a certain act, was, by reason
of unsoundness of mind, incapable of knowing the nature of the act, or that
he was doing what was either wrong or contrary to Law. The opinion of
experts upto the question whether the symptoms exhibited by A commonly
show unsoundness of mind, and whether such unsoundness of mind usually
renders persons incapable of knowing the nature of the acts which they do, or
of knowing that what they do is either wrong or contrary to Law, are relevant.
The question is, whether a certain poison poisoned A. The fact that other
persons, who were poisoned by that poison, exhibited certain symptoms
which experts affirm or deny are to be the symptoms of that poison, is
relevant.
The court may direct any person present in court to write any words or
figures for the purpose of enabling the court to compare the words or figures
so written with any words or fingers alleged to have been written by such
person.
The court may compare the disputed signature, writing, or seal of a person
with signatures, writings, or seals which have been admitted or proved to the
satisfaction of the court to have been made or written by that person. A court
may rely upon its own comparison of the signature, writing, or seal, unaided
by expert evidence.
Law authorizes court to order any person to allow his Finger Impression to be
taken for the purposes of any investigation or proceeding under the Code of
Criminal Procedure provided that such person has at some time been
arrested in connection with such investigation or proceeding.
In applying the provisions of the law on this topic, it is important not to lose
sight of its exact terms. It does not sanction the comparison of any true
documents but requires that the writing with which the comparison is to be
made or the standard writing as it may be called, shall be admitted or proved
to have been written by the person to whom it is attributed and next the
writing to be compared with the tendered or, in other words, the disputed
writing must purport to have been written by the same person, that is to say,
the writing itself must state or indicate that it was written by that person.
The right of the dwellers of a particular village to use the water of a particular
Well is a general right within the meaning of this Article.
When a custom has been repeatedly brought to the notice of the courts and
has been recognized by them regularly in a series of a case, it attains the
force of law.
The law provides another exception to the general rule that opinions of
witnesses are not admissible in proof of facts. Law states that where any
question of custom or right is to be decided, opinions of person who are likely
to know of it, are admissible.
The law does not necessarily require that the person stating his opinion
should have personal knowledge of the existence of the right or custom. He
will be qualified to state his opinion if he is in a position to know of the
existence of the custom or usage in question in his locality.
The opinions of person likely to know about village rights to pasturage, to use
of paths, watercourses, or ferries, to collect fuel, to use tanks and bathing
ghats, mercantile usages, and local customs would be relevant under this
Article.
According to law the opinion of only those person is relevant who are likely to
know of the existence of any general custom or right. Such persons should be
residents of the locality.
1. Kinds of relationship: s
a) Blood: s
b) Marriage: s
c) Adoption: s
2. Qualities: s
a) Personal knowledge: s
b) Seen marriage: s
3. Administrator of Will: s
The rule embodied in this Article is found on the reason that such evidence
tends to prejudice the tribunal against the accused and interferes with the
formation of a calm and dispassionate (fair, impartial, neutral, judicial)
judgement of the case.
As a general rule, it is not competent for the prosecution to show in the first
instance that the accused bears a bad character. Where, however, the
accused given evidence of his good character, it will be then open to the
prosecution to show that he is of bad character. In other words, evidence of
bad character of the accused is admissible only in disproof of the evidence of
his good character.
According to the law, evidence can be given only of general reputation and
general disposition and not of particular acts by which such reputation or
disposition is shown.
In actions for malicious prosecution, the defendant may show the general bad
reputation of the plaintiff as known to him when he launched the prosecution.
Where the contents of document are to be proved, the general rule is that
these must be proved by the production of the original document or what in
other words is known primary evidence. Where, however, the original
cannot be obtained, e.g., where it is lost or destroyed due to any certain or
uncertain reason, there the secondary evidence, e.g., a copy of it or an oral
account of its contents may be adduced.
This Article defines primary evidence, which means the document itself
produced for the inspection of the court. The fundamental notion of producing
the primary evidence that the terms of writing must be proved by producing
it and not by offering testimony about it. When the writing constituting a
bilateral transaction is executed by the parties in duplicate or multiplicity,
each of these parts is the writing, because by act of the parties each is as
much the legal act as another. It can make no difference that one party has
signed on the document, taken by the other, except where it is desired to
prove specifically the signature.
There is a far better guarantee for a number of printed paper struck off from
the same machine at the same time being correct facsimiles of each other,
than of a number of written paper, for here the draftsman or draftsmen may
introduces differences impossible with the machine. In this case, each
machine made copy is accepted as primary evidence of all the other, inter
se. For instance, if it is desired to prove the publication of libel in a
newspaper and copy of the issue in which the libel appears would be primary
evidence of publication in all the other copies of that issue. Thus, printed,
lithographic, photographic, and other reproductions made by one uniform
process are primary evidence of each other. But if, in the circumstances of a
particular case, the original not a reproduction but the document from which
the reproduction was made, the reproduction would be merely secondary
evidence of the original.
Secondary evidence Article 74: Where court accounts for a party and
party advances reason for the lost or damage of primary evidence, the
secondary evidence shall be admissible. Original document may be brunt,
lost, stolen, or in the possession of opponent or adverse party and cannot be
produced in court as primary evidence.
Law says that primary evidence is the best evidence obtainable, i.e., the
statement of an eyewitness or an original document. This Article defines
secondary evidence. The secondary evidence as the name implies assumes
the existence of better evidence, i.e., the original evidence. As a rule
secondary evidence is not admissible until the non-production of primary
evidence is accounted for.
5. Oral evidence of eyewitness: This clause means that the oral evidence
of the contents of the document must be given by some person who has
seen its contents, that is to say, who has read the document. The oral
account of contents of a document given by some person who has merely
seen it with his own eyes but is unable to read it is not secondary
evidence of the document.
(1) In the possession or power of the person against whom the document
is sought to be proved.
(2) Of any person out of the reach of or not subject to the process of the
court.
(3) Of one legally bound to produce it but remain fails after notice is
served.
Under this clause secondary evidence may be given of the contents of the
document when the original is in possession of power of the adverse party
and he fails to produce it after a notice to produce has been duly served
upon him.
5. Immovable: The law says that thing not easily moved, as in the case of
things fixed in the ground or a building, for example, notices painted on
walls, tablets in buildings, tombstones, monuments, or marks on boundary
stones or trees. Secondary evidence is admissible on account of the great
inconvenience and impracticability of producing the original.
4. Original already in court: The object of the notice is not to give the
opposite party an opportunity of producing the proper testimony to
support or impeach the document, but merely to enable him to produce it,
if he likes, at the trial and thus to secure the best evidence of its contents.
Where a party is shown to have the original with him in court and refuses
to produce it, secondary evidence will be admitted notwithstanding the
want of a notice to produce.
5. Admission of lost by adverse party: If the adverse party or his agent
admits the loss of the original document, notice to produce the document
to the adverse party is nugatory (worthless). Where the document is
admitted by the opponent to have been destroyed or lost or even out of
his possession, no notice is necessary, for it is no longer a case of
opponents possession but of loss.
6. Person, out of the reach or not subject of the court: Where the
original is in the possession or power of a person outside the jurisdiction of
the court, no notice to produce is necessary.
Two witnesses must prove its truth. Where two witnesses are not available,
one alive witness must testify its truth as document was written and
executed before him and was signed in his presence. Attesting witness has to
be brought in court to prove contents of document.
This Article does not, however, lays down any particular mode of the proof of
the signature of the writing, it merely requires the signature or the writing to
be proved. Any mode of proof recognized by the Order may, in the discretion
of the Judge and the circumstances of the case be considered sufficient.
6. Counterpart:
7. Attesting witnesses:
8. Admission of party:
9. Circumstantial evidence:
There are, however, certain exceptions to the rule that a document required
by law to be attested must be proved by calling two of the attesting
witnesses. These are:
2. When the document is thirty years old, the court may presume due
execution and attestation and dispense with proof.
This Article lays down the mode of proof of execution of documents that
require attestation. This means that the Article is not attracted for the proof
of documents, which requires no attestation. It provides for the contingency
when no attesting witness is found or the document is executed in United
Kingdom. It lays down that an admission of execution of the document by the
party shall be sufficient proof of the execution of the document even thought
the document is one which by law requires to be attested.
Where the witness is not available who had attested the document at the
time of its execution, it shall be proved either he has been died or gone
elsewhere not possible to call.
Where the executant of, and all the marginal witnesses to, a mortgage deed
was deed, it was held that the mortgage deed was sufficiently proved by
evidence that the signature of the mortgagor was in his own handwriting.
Also that the signatures of two of the marginal witnesses, were in their
handwriting.
The term admission in this Article relates only to the admission of a party in
the course of trial of a suit and not to the attestation of a document by the
admission of the party executing it.
This Article applies only to documents, which have been properly attested.
Provisions of law requiring for the validity of certain instruments their
attestation by certain number of witnesses are rules of law and not mere
rules of evidence.
The effect of this Article is to make the admission of the executant a sufficient
proof of the execution of a document as against the executant himself, even
though it may be a document attestation of which is required by law.
This Article operates only where the person relying on a document has not
given any evidence at all of due execution of the document by the executant
but relies on an admission of execution by the later. So that if a mortgagor
admits execution of a document in the written statement, it is wholly
unnecessary for the mortgagee to adduce any evidence as to the execution
of the document.
Where it is proved that the document was executed on gunpoint or the white
paper was got signed and was not executed in accordance to law shall not be
proof of its truth.
This Article applies to all attesting witnesses, whether the documents require
attestation or not. Thus, this Article becomes applicable if the attesting
witness when called and examined deposes that the person alleged to have
signed the document had only signed a blank paper. To sum up, this Article
provides that if attesting witness to a document denies or does not recollect
the execution of the document, its execution may be proved by other
evidence.
Where an attesting witness has denied all knowledge of the matter the case
stands as if there was no attesting witness and the execution of the
document may be proved by other independent evidence.
This provision is applicable only if all the parties are before the court, and
in ex parte proceedings, the attesting person should yet be called. The
executant of a receipt need not be examined where the payer has sworn to
the payment.
Where the law does not require attestation for the validity of a document, it
may be proved by admission or otherwise, as though no attesting witness
existed.
Comparison of signatures, writing, or seal with other admitted or
proved Article 84: There are certain modes of proving documents as
follows:
3. Person who writes the document: Person who actually writes or signs
the document may also prove the truth of the document.
4. Who has seen the writing actually: Person who actually saw the party
wrote or signing the document may also prove its contents.
Court may compare the signature, writing, or seal itself. Person present in
court is asked to produce his writing, signature, or seal to append before
court. Court itself examines the originality.
The court may compare the disputed signature, writing, or seal of a person
with signatures, writings, or seals which have been admitted or proved to the
satisfaction of the court to have been made or written by that person.
In applying the provisions of this Article it is important not to lose sight of its
exact terms. It does not sanction the comparison of any true documents but
requires that the writing with which the comparison is to be made or the
standard writing as it may be called, shall be admitted or proved to have
been written by the person to whom it is attributed. Next the writing to be
compared with the tendered or, in other words, the disputed writing must
purport to have been written by the same person, that is to say, the writing
itself must state or indicate that it was written by that person.
A court can call upon the accused to give his writing in court and make it
available for comparison by an expert. A court has power to direct an
accused person, present in court to make his finger impression for the
purpose of comparison with another impression supposed to have been made
by him.
Public documents Article 85: Documents are of two types, i.e., public and
private. Article 85 deals with public documents. Article 86 simply says that
documents which do not fall within the purview (reach, range) of Article 85
are private documents.
Private documents Article 86: All the documents, which do not fall within
the definition of public documents, are private documents. All the documents,
which are not defined as public documents, are private documents.
1. Who may issue: A public officer in whose custody public record is kept
ordinarily during the course of normal work is authorized by law to issue
certified copy of public record. Person who does not keep such record in
ordinary course of official duty is not authorized by law to issue such
certified copy.
2. Payment of legal fee: It is very important part of the issuance of
certified copy of public record that fee has been paid for it before its
issuance.
3. Issuance on demand: Person who has right to inspect the record may
apply for the certified copy of public record. It is not issued without
application of its demand.
7. Signature: Officer issuing the certified copy puts his signature below the
words certified to be true copy.
Proof of other public document Article 89: This Article indicates how
certain public documents are to be proved. A public document may be proved
by the production of the original, or by a certified copy under Articles 88, or in
the manner prescribed by Article 89.
When case comes to court, court presumes in favour of one party. Accused is
presumed innocent until or unless prosecution proves his guilt.
Where stolen goods are recovered from a person, court shall presume that he
is either thief or receiver of stolen goods until or unless he proves his
innocence.
Under the old law of Evidence, where child is born after marriage, even after
a week, was presumed legitimate provided husband does not denounce his
legitimacy. This was rebut-able presumption of fact.
Where presumption has been drawn in favour of one, no one can rebut it. Law
has presumed that child under age of seven year is doli incapax, i.e.,
incapable of having mens rea. Therefore murder cannot be proved against
child under seven years of age. This is ir-rebut-able presumption of law.
The Article does not render admissible any particular kind of evidence but
only dispenses with the necessity for formal proof in the confession duly
taken is tendered in evidence in the Sessions Court, calling Magistrate who
recorded it. The court in such a case will presume that the document is
genuine and the signature affixed is that of the Magistrate by whom it
purports to be signed.
This Article lays down that when the court has to form an opinion as to a law
of any country, any statement of such law contained in a book purporting to
be printed or published under the authority of the government of that country
and to contain any of the laws of that country shall be presumed to be
genuine.
The court shall presume the due execution and authentication of a power of
attorney when executed before and authenticated by a Notary Public, or any
court, Judge, Magistrate, Pakistan Counsel, or Vice Counsel, etc.
A power of attorney is writing authorizing another person to do any lawful act
instead of another, e.g., to receive debts or dividends, sue a third person, etc.
This instrument empowers that other to act in his name exactly as the party
giving it himself would do until revocation.
This Article lays down that the court may presume the genuineness and
accuracy of any document purporting to be certified copy of any judicial
record of any foreign country, provided such copy is duly certified by a
representative of the Central Government in that country, to the effect that
the copy has been certified in conformity with the rules in force in that
country for the certification of copies of judicial records. The presumption is
permissive as the words may presume indicate and is rebut-able.
Where documents is within legitimate custody where they should be, theirs
contents also be presumed correct. Custody of bank is valid where
documents are pledged for the purpose of credit facility. Custody of real
brother is also real custody where actual person goes to abroad and hands
over them to his real brother for it proper use.
Sale, transfer, and mortgage etc. are the transactions write up of which is
compulsory by law. Without the attestation by two competent witnesses they
cannot be got registered.
Meaning: Where parties agree to reduce into writing the transaction, it must
be produced in court as evidence. Oral evidence is not allowed. Principal and
same document is requirement of the law for the purpose of evidence. It
should be produced in the court.
2. Made from original: Copy, which is made from the original, can also be
produced as secondary evidence.
4. Oral evidence: Court may also permit oral evidence where document is
not available.
1. Public document: Certified copy from public record does not need to be
original thus it can be produced without permission of court.
3. Any document: Any document where there are more than one original
documents can be adduced as evidence without permission of court in
place of original one.
For example, A agrees to sell land to B situated in Lahore but A has not land
in Lahore but in Shahdara Town, possession of which B has taken since the
execution of deed.
For instance, A sells to B one Pentium III Computer, but A possesses two
such computers, thus evidence can be adduced as to show whether which
computer was meant to sell.
Evidence as to application of language to one of two sets of facts to
neither or which the whole correctly applies Article 107: Where
language of the deed could not mention the application of contract on one
set of fact and applies partly on two sets, then evidence can be given to fix
the application of agreement.
When the case comes to court for its determination, it needs proof. It must be
proved. It cannot be decided until it is proved. There is no need to prove the
issues on which court is required to take judicial notice, e.g., laws of Pakistan,
flags of countries etc.
Facts of which court must take judicial notice Article 112: This Article
contains the long list of laws, which are judicially noticeable by court itself.
Facts admitted need not be proved Article 113: In civil cases if party
admits his case against whom, case to be proved, there shall be no need to
prove it by evidence. In civil litigation written statement is supplied to the
court which may include admissions on certain facts which needs no proof.
Estoppel Article 114: The word estoppel means the rule of evidence or
doctrine of law which precludes a person from denying the truth of some
statement formerly made by him, or the existence of facts which he has by
words or conduct led others to believe in. If a person by a representation
induces another to change his position on the faith of it, he cannot afterwards
deny the truth of his representation.
2. Other party believes him, e.g., other party makes an agreement believing
on the statement of promisor which actually is misrepresentation.
3. Acts upon it, e.g., party gives to others token money to form contract.
Later the person who misrepresents alienates the property to its legatees by
way of inheritance; he can be stopped to do so. He cannot say that property
did not belong to me. He shall be estoppel to do so.
Where no person believes in misrepresentation thus does not act upon it, it
does not binding on party to estop other party.
When the relation of landlord and tenant is once established, the estoppel will
attach to all who may succeed the tenant, immediately or remotely.
Where one tenant comes under licence of the owner, his successor cannot
deny the truth of ownership of the landlord.
2. A bailee is estopped from denying that his bailor had, as the time the
bailment was made authority to make it.
3. A licensee is estopped from denying the title of the licensor to grant the
license.
1. Meaning of estoppel: s
2. Principles: s
a) Misrepresentation: s
c) Immediate cause: s
3. Objects: s
a) To prevent fraud: s
4. Where no estoppel: s
a) In criminal cases: s
b) In parliamentary laws: s
c) Opinion: s
d) Corporation/companies: s
5. How estoppel: s
a) By Court: s
b) By deed: s
c) By conduct: s
Burden of proof Article 117: When any party wants to take decision in his
favour requires proving facts in issue in his favour. Mere presentation of suit
or case in court is insufficient to get remedy. Material evidence is required to
prove the facts in issue.
For example, a person has acquired property can prove his ownership either
by way of inheritance or sale deed.
One who imposes allegations, i.e., plaintiff or prosecution must prove his suit
or case. One who alleges must prove his claim.
Who prays to impose death penalty to murderer must prove the fact of
murder committed by such alleged person. Where there is no murder, there is
no death penalty and in the same manner where there is murder but there is
no proof against accused, there is no death penalty. Facts alleged must
support the commission of offence.
In civil litigation, plaintiff and in criminal trial, prosecutor, has to prove facts
through evidence so that court may reach on conclusion beyond any
reasonable doubt in their favour for judgement.
Burden of proof as to particular fact Article 119: This Article deals with
the plea of Alibi (proof of absence). Where in criminal case, a murder takes
place during of period of imprisonment of alleged accused, such accused can
take plea of alibi being not present at the seen of occurrence. Burden of proof
lies on the shoulders who alleges the fact of being absent, i.e., plea of alibi.
2. Impossible to reach:
3. Time distance:
1. Definition:
2. Essentials of admittance:
a) Death of maker:
f) Must be corroborated:
h) Must be complete:
i) Must be clear:
a) Written:
b) Oral:
c) Signals:
Burden of proving that person is alive who has not been heard of for
seven years Article 124: This Article is related with the special knowledge
of relatives or some special persons. Where a person is not seen or heard
within last seven years by the blood relatives or friends, it is presumed that
he has been died. Otherwise his alive is to be proved.
Under the old law of Evidence, where child was born after marriage, even
after a week, was presumed legitimate provided husband does not denounce
his legitimacy. This was rebut-able presumption of fact.
Where child is born after dissolution of marriage within two years provided
mother remains unmarried, it shall be presumed that such child is legitimate.
Where goods are recovered from possession of one person soon after theft,
court shall presume that he either has stolen goods or received stolen
property.
The use of character evidence is to assist the court in estimating the value of
the evidence brought against the accused. It is observed in a case that a
man is not born a knave; there must be time to make him so; nor is he
presently discovered after he becomes one. A man may be reputed an able
man this year, and yet be a beggar the next; it is a misfortune that happens
to many men, his former reputation will signify nothing to him upon this
occasion.
Leading questions Article 136: This Article merely defines the leading
question. Leading question is a question under which answer of the question
is provided. Party putting questions suggests answers.
Person to whom questions are asked understands easily that what answer he
has to give. Normally form of leading question is objective, whether negative
or affirmative.
When leading questions must not be asked Article 137: Party is not
allowed to ask leading questions either in examination or re-examination.
When leading questions may be asked Article 138: Only adverse party
can put leading questions during cross-examination.
Under Article 150, examination-in-chief can ask leading question where court
declares a witness hostile.
This is also provided under Article 151. It objects to find out truthfulness,
accuracy, source of knowledge, and his memory. What is his social status?
Whether he sell heroine or wine.
1. Where questioning does not effect the decision of court, court shall no
interfere in examination, provided questions are proper.
2. Where questions are irrelevant, court may want witness not to answer the
questions. Court may also disallow such type of questions.
3. Where stock witness is proved who are readily available to testify the
facts, court may refuse their evidence.
All questions should be relevant and merely insult is not allowed. Credibility
can be attacked but on reasonable grounds.
Questions should not be insulting type. Only relevant questions are allowed.
Questions intended to insult or annoy Article 148: Court has power to
forbid to ask any question which either is irrelevant and which unnecessarily
injures the character of person.
The object of the Article is to prevent trials being spun out (continued) to an
unreasonable length.
4. Cancellation of license:
Question by party to his own witness Article 150: Where a party calling
a witness and examining him discovers that he is either hostile or unwilling to
answer questions put to him, he can obtain permission of the court to put
question to him by way of cross examination.
Object to bring witness in court is to prove vindication of the party and where
witness deviates and makes collusion with adverse party, party can take plea
of its hostility. Only court may declare witness of examination-in-chief as
hostile.
Hostile witness: A hostile witness is one who from the manner in which
he gives evidence shows he is not desirous of tellingly the truth to the court.
A witness who is unfavorable is not necessarily hostile. A witness who is
gained over by the opposite party is a hostile witness.
Manager of the hotel can give evidence that accused stayed at his hotel
before commission of the offence and he took meal. Accused was suspicious
at that time.
Owner of type shop can give evidence that he did repair puncture before
commission of the offence and accused was suspicious at that time.
These facts are though irrelevant but can assist court to conclude the
proceedings.
He also may take plea that original document is out of my reach at the
moment because the person occupying such statement has left the country.
Expert may also consult his statement in writing to refresh memory before
giving evidence.
It can be objected whether detail was written, document was written one year
before, from where document was taken, from where paper was obtained, or
whether removed from copy. What was the writing medium whether ball pen
or fountain pen. What was the colour of ink whether black or red. Whether
paper was lined or not.
a) By reference of documents: s
b) By any writing: s
c) Copy: s
d) Counterpart: s
a) As production of document: s
b) To inspect document: s
c) Cross examination: s
5. How documents examination questions: s
g) Colour of ink: s
1. Base of decision:
a) Evidence:
b) Proper evidence:
c) Proper trial:
d) Examination:
e) Jurisdiction:
a) No base of retrial:
i) If it effects decision:
Order to override other laws Article 165: This law has superiority on all
the laws enforced for the time being.
Repeal Article 166: The Evidence Act, 1872 (I of 1872) is hereby repealed.
1. Judicial:
2. Extra judicial: Intermediaries make it.
3. Real:
4. Personal:
5. Primary:
6. Secondary:
7. Direct:
8. Circumstantial:
9. Oral:
10. Documentary:
11. Hearsay:
1. Definition:
2. When conducted:
b) Immediate:
d) In jail only:
3. Conditions:
a) Presence of Magistrate:
c) Similar face:
f) Writing by Magistrate:
g) Identification of offender:
4. Value:
a) No value:
b) Corroboration is required:
1. Definitions:
a) Admission:
b) Confession:
2. Distinctions:
a) Cases:
b) In all cases:
c) Result:
d) Conclusive proof:
e) Recording:
f) Base of conviction:
h) Against others:
i) Estoppel:
j) Before police:
k) By whom:
l) Value in evidence:
m) Term:
1. Who is accomplice:
2. Competency as witness under Article 16:
a) Shifting of guilt:
b) Pardon:
c) Disregard of oath:
7. In hudood cases:
a) No evidence of accomplice:
b) No conviction:
c) No corroboration:
7. Please of alibi:
1. Ancient:
2. Continue and uniform:
3. Reasonableness:
4. Certain:
5. Compulsory:
6. Peaceable:
7. Consistent:
3. Decree of probate:
4. Matrimonial:
5. Admiralty:
6. Insolvency:
7. Legal character:
8. Exceptions:
b) Adverse:
c) Want of jurisdiction:
All relevant facts are not admissible but all admissible facts are
relevant:
3. Opinion of expert:
4. Conditions:
a) Matter of transaction:
b) Constitution of crime:
e) Direct effect:
f) Conspiracy:
h) Amount of damages:
Modes of proving handwriting under Articles 61, 78, 84, and 164:
1. By writing himself:
2. By calling witnesses:
3. By expert:
4. By comparison:
5. By acquittance:
7. By statement of deceased:
8. By circumstantial evidence:
c) Official custody:
d) Legitimate custody:
9. By modern devices:
Back | Next
Go to Index | LL. B. I | LL. B. II | Laws | Home
Qanoon-e-Shahadat top 20 questions
3) plea of alibi
5) what is confession and what are its kinds (judicial and extra
judicial). also evidentiary value of confession before police officer?
6) expert opinion
13) what does leading question mean? when leading questions are
allowed to be asked and when not?
19) what are public and private documents? how are public
documents proved?
one should also know that " what object does the law of evidence tend
to achieve in the administration of justice"?
NOTES
Qanoon-e-shahadat---- notes
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DYING DECLARATION:
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ESSENTIAL CONDITIONS:
===========================
HOW IT IS PROVED
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CONCLUSION
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ESTOPPEL...
Overview...
Major types..
Proprietary estoppel..
the claimant...
Other estoppels...
Pais...
Convention...
(i) they both knew the other had the same belief, and
(ii) they both based their subsequent dealings on those beliefs.
Some say[who?][by whom?] that estoppel by convention is not truly
an estoppel in its own right, but merely an instance of reliance-based
estoppel (estoppel by representation would be its most frequent
form). Others[who?][by whom?] see it as no more than an
application of the rule of interpretation that, where words in a
contract are ambiguous, one always interprets those words so as to
give effect to the actual intentions of the parties even though that
would not be the usual legal outcome.
Estoppel by acquiescence...
As an example, suppose that Jill has been storing her car on Jack's
land with no contract between them. Jack sends a registered letter to
Jill's legal address, stating: "I am no longer willing to allow your car
to stay here for free. Please come get your car, or make
arrangements to pay me rent for storing it. If you do not do so,
within 30 days, I will consider the car abandoned and will claim
ownership of it. If you need more time to make arrangements, please
contact me within 30 days, and we can work something out." If Jill
does not respond, she may be said to have relinquished her
ownership of the car, and estoppel by acquiescence may prevent any
court from invalidating Jack's actions of registering the car in his
name and using it as his
Estoppel by deed...
Conflict Estoppel...
Issue estoppel...
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IDENTIFICATION PARADE:
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In cases, where the offenders are not caught at the spot, the names
of the culprits are not found in the first information report, and they
are caught after some time, the identification parade is held and
often the fate of the prosecution case depends upon the satisfactory
character of identification proceedings in such cases.
Identification test of accused person cannot as a rule form sufficient
basis for conviction, yet can necessarily be used in support of other
evidence against them.
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JUDGEMENT-IN-REM :
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- - - - - - - - - - -- - - - - - - -
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ALIBI
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RES-GESTAE
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There are many incidents which though not strictly in issue, yet be
regarded as forming part of it, in the sense that they closely
accompany and explain that fact. these constituent or accompanying
incidents are in law said to be admissible as forming part of the Res-
gestae or main fact.
The evidence about the fact, which is also connected with the same
transaction, cannot be said to be inadmissible or irrelevant. There is
no provision of law which lays-down that evidence can be led only in
respect of that matter which is the subject-matter of the charge.
Facts forming part of the same transaction though not in issue but so
cnnected with a fact-in-issue as to form part of the same transaction
are relevant.
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TAZKIYAH-TUL-SHAHOOD.
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HOSTILE WITNESS:
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---------------------------------------------
The prosecution cannot cross-examine its own witness, but the court
has got wide discretionto allow the prosecution to cross-examine
prosecution witnesses after
declaring them hostile.