Updated: Friday September 06, 2013/AlJumaa
Thoul Ki'dah 02, 1434/Sukravara
Bhadra 15, 1935, at 02:54:02 PM
The Evidence
Act 1872 (Repealed)
WHEREAS it is expedient to consolidate, define and amend the preamble law of
Evidence; It is hereby enacted as fellows;---
[15th
March, 1872]
PART I
RELEVANCY
of FACTS
CHAPTER I
PRELIMINARY
1. This Act may be called the Evidence act, 1872. It extends to the
whole of Pakistan and applies to all judicial proceedings in or before any
Court, including Courts-martial other than Courts-martial convened tinder the
Army Act, the Naval Discipline Act or that Act as modified by the Pakistan Navy
(Discipline) Act, 1934, or the Air Force but not to affidavits presented to any
Court or officer, nor Of 1934 to proceedings before an arbitrator;
And it shall come into force on the first day of September, 1872.
2. Repeal of enactments. Rep. by the Repealing Act, 1938 (I of
1938), s. 2 and Sch
3 In this Act the following words and expressions are used in the following
senses, unless a contrary intention appears from the context:---
4
"Court" includes all Judges and Magistrates, and all persons, except
arbitrators, legally authorized to take evidence.
"Fact" means and includes,---
(1) any thing, state of things, or relation of things capable of being
perceived by the senses;
(2) any mental condition of which any person is conscious.
Illustrations
(a) That there are certain objects arranged in a certain order in a certain
place, is a fact.
(b) That a man heard or saw something is a fact.
(c) That a man said certain words is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good
faith or fraudulently, or uses a particular word in a particular sense, or is
or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
One fact is said to be relevant to another when the one is connected with the
other in any of the ways referred to in the provisions of this Act relating to
the relevancy of facts.
The expression " facts in issue " means and includes any fact from
which, either by itself or in connection with other facts, the existence, non‑existence,
nature or extent of any right, liability, or disability, asserted or denied in
any suit or proceeding, necessarily follows.
Explanation. Whenever, under the provisions of the law for the time being in
force relating to Civil Procedures, any Court records an issue of fact, the
fact to be asserted or denied in the answer to such issue is a fact in issue.
Illustrations
A writing is a document:---
Words printed, lithographed or photographed are documents
A map or plan is a document
An inscription on a metal plate or stone is a document
A caricature is a document.
"Evidence" means and includes,---
(1) all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry such statements are
called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are
called documentary evidence.
A fact is said to be proved when, after considering the matters before it, the
Court either believes it to exist, or considers its existence so probable that
a prudent man ought, under the circumstances of the particular case, to act
upon the supposition that it exists.
A fact is said to be disproved when, after considering the matters before it,
the Court either believes that it does not exist, or 1 considers its non‑existence
so probable that a prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it does not exist.
A fact is said not to be proved when it is neither proved nor disproved.
4. Whenever it is provided by this Act that the Court may presume a fact, it
may either regard such fact as proved, unless and until it is disproved, or may
call for proof of it. Whenever it is directed by this Act that the Court
shall presume a fact, it shall regard such fact as proved, unless and until it
is disproved;
When one fact is declared by this Act to be conclusive proof of another, the
Court shall, on proof of the one fact, regard the other as proved, and shall
not allow evidence to be given for the purpose of disproving it.
CHAPTER II
OF THE
RELEVANCY OFFACTS
5. Evidence may be given in any suit or proceeding of the existence or non‑existence
of every fact in issue and of such other facts as are hereinafter declared to
be relevant, and of no others. Explanation. This section shall not enable
any person to give evidence of a fact which he is disentitled to prove by any
provision of the law for the time being in force relating to Civil Procedure.
Illustrations
(a) A is tried for the murder of B by beating him with a club with the
intention of causing his death.
At A's trial the following facts are in issue
A's beating B with the club;
A's causing B's death by such beating;
A's intention to cause B's death.
(b) A suitor does not bring with him, and have in readiness for
production at the first hearing of the case, a bond on which he relies. This
section does not enable him to produce the bond or prove its contents at a
subsequent stage of the proceedings, otherwise than in accordance with the
conditions prescribed by the Code of Civil Procedure'.
6. Facts which, though not in issue, are so connected with a fact in issue as
to form part of the same transaction, are relevant, whether they occurred at
the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done
by A or B or the by‑standers at the beating, or so shortly before or
after it as to form part of the transaction, is a relevant fact.
(b) A is accused of waging war against Pakistan by taking part in an
armed insurrection in which property is destroyed, troops are attacked, and
goals are broken open. The occurrence of these facts is relevant, as forming
part of the general transaction, though A may not have been present at all of
them.
(c) A sues B for a libel contained in a letter forming part of a
correspondence. Letters between the parties relating to the subject out of whom
the libel arose, and forming part of the correspondence in which it is
contained, are relevant facts, though they do not contain the libel itself.
(d) The question is, whether certain goods ordered from B were delivered to A.
The goods were delivered to several intermediate persons successively. Each
delivery is a relevant fact.
7. Facts which are the occasions, cause or effect, immediate or
otherwise, of relevant facts, or facts in issue, or which constitute the state
of things under which they happened, or which afforded an opportunity for their
occurrence or transaction, are relevant.
Illustrations
(a) The question is, whether A robbed B.
The facts that, shortly before the robbery, B went to a fair with money in his
possession, and that he showed it or mentioned the fact that he had it, to
third persons, are relevant.
(b) The question is, whether A murdered B.
Marks on the ground, produced by a struggle at or near the place where the
murder was committed, are relevant facts.
(c) The question is, whether A poisoned B.
The state of B's health before the symptoms ascribed to poison, and habits of
B, known to A, which afforded an opportunity for the administration of poison,
are relevant facts.
8. Any fact is relevant which shows or constitutes a motive or preparation
for any fact in issue or relevant fact. The conduct of any party, or of any
agent to any party, to any suit or proceeding, in reference to such suit or
proceeding, or in reference to any fact in issue therein or relevant thereto,
and the conduct of any person an offence against whom is the subject of any
proceeding, is relevant, if such conduct influences or is influenced by any
fact in issue or relevant fact, and whether it was previous or subsequent
thereto.
Explanation 1.‑The word “conduct " in this section does not
include statements, unless those statements accompany and explain acts other
than statements ; but this explanation is not to affect the relevancy of
statements under any other section of this Act.
Explanation 2.‑When the conduct of any person is relevant, any
statement made to him or in his presence and hearing, which affects such
conduct, is relevant.
Illustrations
(a) A is tried for the murder of B.
The facts that A murdered C, that B knew that A had murdered C, and that B had
tried to extort money from A by threatening to make his knowledge public, are
relevant.
(b) A sues B upon a bond for the payment of money. B denies the making of the
bond.
The fact that, at the time when the bond was alleged to be made, B required
money for a particular purpose is relevant.
(c) A is tried for the murder of B by poison.
The fact that, before the death of B, A procured poison similar to that which
was administered to B, is relevant.
(d) The question is whether a certain document is the will of A.
The facts, that not long before the date of the alleged will A made inquiry
into matters to which the provisions of the alleged will relate that he
consulted Vakils in reference to making the will, and that he caused drafts of
other wills to be prepared of which he did not approve, are relevant.
(e) A is accused of a crime.
The facts that, either before or at the time of, or after the alleged crime, A
provided evidence which would tend to give to the facts of the case an
appearance favorable to himself, or that he destroyed or concealed evidence, or
prevented the presence or procured the absence of persons who might have been
witnesses, or suborned persons to give false evidence respecting it, are
relevant.
(f) The question is whether A robbed B.
The facts that, after B was robbed, C said in A's presence “the police are
coming to look for the man who robbed B, " and that immediately afterwards
A ran away, are relevant.
(g) The question is whether A owes B rupees 10,000.
The facts that A asked C to lend him money, and that D said to C in A's
;presence and hearing‑---"I advise you not to trust A, for he owes B
10,000 rupees" ,and that A went away without making any answer, are
relevant facts.
(h) The question is, whether A committed a crime.
The fact that A absconded after receiving a letter warning him that inquiry was
being made for the criminal, and the contents of the letter, are relevant.
(i) A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or was
in possession of property or the proceeds of property acquired by the crime, or
attempted to conceal things which were or might have been used in committing
it, are relevant.
(f) The question is whether A was ravished.
The facts that, shortly after the alleged rape, she made a complaint relating
to the crime, the circumstances under which, and the terms in which, the
complaint was made, are relevant.
The fact that, without making a complaint, she said that she had been ravished
is not relevant as conduct under this section, though it may be relevant as a
dying declaration under section 32, clause (1), or as corroborative evidence
under section 157.
(k) The question is, whether A was robbed.
The fact that, soon after the alleged robbery, he made a complaint relating to
the offence, the circumstances under which, and the terms in which, the
complaint was made, are relevant.
The fact that he said he had been robbed without making any complaint, is not
relevant, as conduct under this section, though it may be relevant as a dying
declaration under section 32, clause (1), or as corroborative evidence under
section 157.
9. Facts necessary to explain or introduce a fact in issue or relevant
fact, or which support or rebut an inference suggested by a fact in issue or
relevant fact, or which establish the identity of any thing or person whose
identity is relevant, or fix the time or place at which any fact in issue or
relevant fact happened, or which show the relation of parties by whom any such
fact was transacted, are relevant in so far as they are necessary for that
purpose.
Illustrations
(a) The question is, whether a given document is the will of A.
The State of
(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that ‑the
matter alleged to be libellous is true.
The position and relations of the parties at the time when the libel was
published may be relevant facts as introductory to the facts in issue.
The particulars of a dispute between A and B about a matter unconnected with
the alleged libel are irrelevant, though the fact that there was a dispute may
be relevant if it affected the relations between A and B.
(c) A is accused of a crime.
The fact that, soon after the commission of the crime, A absconded from his
house, is relevant under section 8, as conduct subsequent to and affected by
facts in issue.
The fact that at the time when he left home he had sudden and urgent business
at the place to which he went, is relevant, as tending to explain the fact that
he left home suddenly.
The details of the business on which he left are not relevant, except in so far
as they are necessary to show that the business was sudden and urgent.
(d) A sues B for inducing C to break a contract of service made by him with A.
C, on leaving A's service, says to A‑"I am leaving you because B has
made me a better offer." This statement is a relevant fact as explanatory
of C's conduct, which is relevant as a fact in issue.
(e) A, accused of theft, is seen to give the stolen property to B, who is seen
to give it to A's wife. B says as he delivers it "A says you are to hide
this."
B's statement is relevant as explanatory of a fact which is part of the
transaction.
(f) A is tried for a riot and is proved to have marched at the head of a mob.
The cries of the mob are relevant as explanatory of the nature of the
transaction.
10. Where there is reasonable ground to believe that two or more persons
have conspired together to commit an offence or an actionable wrong, anything
said, done or written by any one of such persons in reference to their common
intention, after the time when such intention was first entertained by any one
of them, is a relevant fact as against each of the persons believed to be so
conspiring, as well for the purpose of proving the existence of the conspiracy
as for the purpose of showing that any such person was a party to it.
Illustrations
Reasonable ground exists for believing that A has joined in a conspiracy to
wage war against
The facts that B procured arms in Europe for the purpose of the conspiracy, C
collected money in Chittagong for a like object, D persuaded persons to join
the conspiracy in Karachi, E published writings advocating the object m view at
Multan and F transmitted from Lahore to G at Cabul the money which C had
collected at Chittagong, and the contents of a letter written by H giving an
account of the conspiracy, are each relevant, both to prove the existence of
the conspiracy, and to prove A's complicity in it, although he may have been
ignorant of all of them, and although the persons by whom they were done were
strangers to him, and although they may have taken place before he joined the
conspiracy or after he left it.
11. 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) The question is whether A committed a crime at
The fact that, on that day, A was at
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 crime could have been committed by
no one else and that it was not committed by either B, C or D, is relevant.
12. In suits in which damages are claimed, any fact which will enable
the Court to determine the amount of damages which ought to be awarded, is
relevant.
13. Where the question is as to the existence of any right of custom,
the following facts are relevant:‑--
(a) any transaction by which the right or custom in question was created,
claimed, modified, recognized, asserted or denied, or which was inconsistent
with its existence;
(b) particular instances in which the right or custom was claimed, recognized
or exercised, or in which its exercise was disputed, asserted or departed from.
Illustrations
The question is whether A has a right to a fishery. A deed conferring the
fishery on A's ancestors, a mortgage of the fishery by A's father, a subsequent
grant of the fishery by A's father, irreconcilable with the mortgage,
particular instances in which A's father exercised the right, or in which the
exercise of the right was stopped by A's neighbours, are relevant facts.
14. Facts showing the existence of any state of mind, such as intention,
knowledge, good faith, negligence, rashness, ill‑will Or good‑will
towards any particular person, or showing the existence of any state of body or
bodily feeling, are relevant, when the existence of any such state of mind or
body or bodily feeling is in issue or relevant.
Explanation 1.‑A fact relevant as showing the existence of a relevant
state of mind must show that the state of mind exists, not generally, but in
reference to the particular matter in question.
Explanation 2.‑But where, upon the trial of a person accused of an
offence, the previous commission by the accused of an offence is relevant
within the meaning of this section, the previous conviction of such person
shall also be a relevant fact.
(a) A is accused of receiving stolen goods knowing them to be stolen. It
is proved that he was in possession of a particular stolen article.
The fact that, at the same time, he was in possession of many other stolen
articles is relevant, as tending to show that he knew each and all of the
articles of which he was in possession to be stolen.
(b) A is accused of fraudulently delivering to another person a
counterfeit coin which, at the time when he delivered it, he knew to be
counterfeit.
The fact that, at the time of its delivery, A was possessed of a number of
other pieces of counterfeit coin is relevant.
The fact that A had been previously convicted of delivering to another person
as genuine a counterfeit coin knowing it to be counterfeit is relevant.
(c) A sues B for damage done by a dog of B's, which B know to be ferocious.
The facts that the dog had previously bitten X, Y and Z, and that they had made
complaints to B, are relevant.
(d) The question is, whether A, the acceptor of a bill of exchange, knew that
the name of the payee was fictitious.
The fact that A had accepted other bills drawn in the same manner before they
could have been transmitted to him by the payee if the payee had been a real
person, is relevant as showing that A knew that the payee was a fictitious
person.
(e) A is accused of defaming B by publishing an imputation intended to harm the
reputation of B.
The fact of previous publications by A respecting B, showing ill‑will on
the part of A towards B is relevant, as proving A's intention to harm B's
reputation by the particular publication in question.
The facts that there was no previous quarrel between A and B, and that A
repeated the matter complained of as he heard it, are relevant, as showing that
A did not intend to harm the reputation of B.
(f) A is sued by B for fraudulently representing to B that C was solvent,
whereby B, being induced to trust C, who was insolvent, suffered loss.
The fact that at the time when A represented C to be solvent, C was supposed to
be solvent by his neighbours and by persons dealing with him, is relevant, as
showing that A made the representation in good faith.
(g) A is sued by B for the price of work done by B, upon a house of which A is
owner, by the order of C, a contractor.
A's defence is that B's contract was with C.
The fact that A paid C for the work in question is relevant, as proving that A
did, in good faith, make over to C the management of the work m question, so
that C was in a position to contract with B on C's own account, and not as
agent for A.
(h) A is accused of the dishonest misappropriation of property which he had
found, and the question is whether, when he appropriated it, he believed in
good faith that the real owner could not be found.
The fact that public notice of the loss of the property had been given in the
place where A was, is relevant, as showing that A did not in good faith believe
that the real owner of the property could not be found.
The fact that A knew, or had reason to believe, that the notice was given
fraudulently by C, who had heard of the loss of the property and wished to set
up a false claim to it, is relevant, as showing that the fact that A knew of
the notice did not disprove A's good faith.
(i) A is charged with shooting at B with intent to kill him. In order to show
A's intent the fact of A's having previously shot at B may be proved.
(j) A is charged with sending threatening letters to B. Threatening letters
previously sent by A to B may be proved, as showing the intention of the
letters.
(k) The question is, whether A has been guilty of cruelty towards B, his wife.
Expressions of their feeling towards each other shortly before or after the
alleged cruelty are relevant facts.
(l) The question is whether A's death was caused by poison.
Statements made by A during his illness as to his symptoms are relevant facts.
(m) The question is, what was the state of A's health at the time an assurance
on his life was effected.
Statements made by A as to the
state of his health at or near the time in question are relevant facts.
(n) A sues B for negligence in providing him with a carriage for hire not
reasonably fit for use, whereby A was injured.
The fact that B's attention was drawn on other occasions to the defect of that
particular carriage is relevant.
The fact that B was habitually negligent about the carriages which he let to
hire is irrelevant.
(o) A is tried for the murder of B by intentionally shooting him dead.
The fact that A on other occasions shot at B is relevant as showing his
intention to shoot B.
The fact that A was in the habit
of shooting at people with intent to murder them is irrelevant.
(p) A is tried for a crime.
The fact that he said something
indicating an intention to commit that particular crime is relevant.
The fact that he said something indicating a general disposition to commit
crimes of that class is irrelevant.
15. When there is a question whether an act was accidental or
intentional, 1[or done with a particular knowledge or intention), the fact that
such act formed part of a series of similar occurrences, in each of which the
person doing the act was concerned, is relevant.
Illustrations
(a) A is accused of burning down his house in order to obtain money for which
it is insured.
The facts that A lived in several houses successively each of which he insured,
in each of which a fire occurred, and after each of which fires A received
payment from a different insurance office, are relevant, as tending to show
that the fires were not accidental.
(b) A is, employed to receive money from the debtors of B. It is A's duty to
make entries in a book showing the amounts received by him. He makes an entry
showing that on a particular occasion he received less than he really did
receive.
The question is, whether this false entry was accidental or intentional.
The facts that other entries made by A in the same book are false, and that the
false entry is in each case in favour of A, are relevant.
(c) A is accused of fraudulently delivering to B a counterfeit rupee.
The question is, whether the delivery of the rupee was accidental.
The facts that, soon before or soon after the delivery to B, A delivered
counterfeit rupees to C, D and E are relevant, as showing that the delivery to
B was not accidental.
16. When there is a question whether a particular act was done, the existence
of any course of business, according to which it naturally would have been
done, is a relevant fact.
(a) The question is, whether a particular letter was despatched.
The facts that it was the ordinary course of business for all letters put in a main
place to be carried to the post, and that that particular letter was put in
,that place are relevant.
(b) The question is, whether a particular letter reached A. The facts that it
was posted in due course, and was not returned through the Dead Letter Office.
Admissions
17. An admission is a statement, oral or documentary, which suggests any
inference as to any fact in issue or relevant fact, and de which is made by any
of the persons, and under the circumstances, hereinafter mentioned.
18. Statements made by a party to the proceeding, or by an A agent to
any such party, whom the Court regards, under the circumstances of the case, as
expressly or impliedly authorized by him.
19. Statements made by, persons whose position or liability it is
necessary to prove as against any party to the suit, are admissions, if such
statements would be relevant as against such persons an relation to such
position or liability in a suit brought by or against them, and if they are
made whilst the person making them occupies such position or is subject to such
liability.
Illustrations
A undertakes to collect rents for B. B sues A for not collecting rent due from
C to B. A‑denies that rent was due from C to B. A statement by C, that he
owed B rent is an admission, and is a relevant fact; as against A, if A denies
that C did owe rent to B.
20. Statements made by persons to whom a party to the suit has expressly
referred for information in reference to a matter in dispute are admissions.
Illustrations
The question is whether a horse sold by A to B is sound.
A says to B‑" Go and ask C ; C knows all about it." C's
statement is an. admission.
21. Admissions are relevant and may be proved as against: the person who
makes them, or his representative in interest ; but they cannot be proved by or
on behalf of the person who makes, them or by his representative in interest,
except in the following by cases:‑
(1) An admission may be proved by or on behalf of the person making it, when it
is of such a nature that, if the person making it were dead, it would be
relevant as between third persons under section 32.
(2) An admission may be proved by or on behalf of the person making it, when it
consists of a statement of the. existence of any state of mind or body,
relevant or in issue, made at or about the time when such state of mind or body
existed, and is accompanied by conduct, rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person making it, if it
is relevant otherwise than as an, admission.
Illustrations
(a) The question between A and B is, whether a certain deed is or is not
forged. A affirms that it is genuine, B that it is forged.
A may prove a statement by B that the deed is genuine, and B may prove a
statement by A that the deed is forged ; but A cannot prove a statement by
himself that the deed is genuine, nor can B prove a statement by himself that
the; deed is forged.
(b) A, the captain of a ship, is tried for casting her away.
Evidence is given to show that the ship was taken out of her proper course.‑
A produces a book kept by him in the ordinary course of his business showing
observations alleged to have been taken by him from day to day, and indicating
that the ship was not taken out of her proper course. A may prove these
statements, because they would be admissible between third parties, if he were
dead, under section 32, clause (2).
(c) A is accused of a crime committed by him at ' [
He produces a letter written by himself and dated at
The statement in the date of the letter is admissible, because, if A were
dead,, it would be admissible under section 32, clause (2).
(d) A is accused of receiving stolen goods knowing them to be stolen.
He offers to prove that he refused to sell them below their value.
A may prove these statements, though they are admissions, because they, are
explanatory of conduct influenced by facts in issue. ,
(e) A is accused of fraudulently having in his possession counterfeit coin,
which he knew to be counterfeit.
He offers to prove that he asked a skilful person to examine the coin as he:
doubted whether it was counterfeit or not, and that that person did examine it
and told him it was genuine.
A may prove these facts for the reasons stated in the last preceding
illustration.
22. Oral admissions as to the contents of a document are not relevant,
unless and until the party proposing to prove them shows that he is entitled to
give secondary evidence of the contents of such document under the rules
hereinafter contained, or unless the genuineness of a document produced is in
question.
23. In civil cases no admission is relevant, if it is made either upon
an express condition that evidence of it is not to be given, or under
circumstances from which the Court can infer that the parties agreed together
that evidence of it should not be given.
Explanation.‑Nothing in this section shall be taken to exempt barrister,
pleader, attorney or vakil from giving evidence of any matter of which he may
be compelled to give evidence under section 126.
24. A confession made by an accused person is irrelevant in a criminal
proceeding, if the making of the confession appears to the Court to have been
caused by any inducement, threat or promise, having reference to the charge
against the accused person, proceeding from a person in authority and
sufficient, in the opinion of the Court, to give the accused person grounds
which would appear ‑to him reasonable for supposing that by making it he
would gain any advantage or avoid any evil of a temporal nature in reference to
the proceedings against him.
25. No confession made to a police‑officer shall be proved as
against a person accused of any offence.
26. No confession made by any person whilst he is in the custody of a
police‑officer, unless it be made in the immediate presence of a
Magistrate, shall be proved as against such person.
Explanation.‑In this section "Magistrate " does not
include the head of a village discharging magisterial functions unless such
headman is a Magistrate exercising the powers of a Magistrate under the Code of
Criminal Procedure, 1882.
27. Provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused of any offence, in
the custody of a police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved.
28. If such a confession as is referred to in section 24 is made after
the impression caused by any such inducement, threat of promise has, in
the opinion of the Court, been fully removed, it is relevant.
29. If such a confession is otherwise relevant, it does not become
irrelevant merely because it was made under a promise of secrecy, or in
consequence of a deception practised on the accused person for the purpose of
obtaining it, or when he was drunk, or because it was made in answer to
questions which he need not have answered, whatever may have been the form of those
questions, or because he was not warned that he was not bound to make such
confession, and that evidence of it might be given against him.
30. When more persons than one are being tried jointly for the same
offence, and a confession made by one of such persons affecting himself and
some other of such persons is proved, the Court may take into consideration
such confession as against such other person as well as against the person who
makes such confession.
Explanation.‑" Offence," as used in this section,
includes the: abetment of, or attempt to commit, the offence.
Illustrations
(a) 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.
(b) A is on his trial for the murder of C. There is evidence to show that G 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.
31. Admissions are not conclusive proof of the matters admitted but they
may operate as estoppels under the provisions, hereinafter contained.
STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES'
32. Statements, written or verbal, of relevant facts made by a‑,
person who is dead, or who cannot be found, or who has become incapable of
giving evidence, or whose attendance cannot be procured without an amount of
delay or expense which under the circumstances of the case appears to the Court
unreasonable, are themselves relevant facts in the following cases :‑
(1) When the statement is made by a person as to the cause of his death, or as
to any of the circumstances of the transaction which resulted in his death, in
cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not,
at the time when they were made, under expectation of death, and whatever may
be the nature of the proceeding in which the cause of his death comes into
question.
(2) When the statement was made by such person in the ordinary course of
business, and in particular when it consists of any entry or memorandum made by
hum in books kept in the ordinary course of business, or in the discharge of
professional duty ; or of an acknowledgment written or signed by him of the
receipt of money, goods, securities or property of any kind ; or of a document
used in commerce written or signed by him ; or of the date of a letter or other
document usually dated, written or signed by him.
(3) When the statement is against the pecuniary or proprietary interest of the
person making it, or when, if true, it would expose him or would have exposed
him to a criminal prosecution or to a suit for damages.
(4) When the statement gives the opinion of any such person, as to the
existence of any public right or custom or matter of public or general
interest, of the existence of which, if it existed, he would have been likely
to be aware, and when such statement was made before any controversy as to such
right, custom or matter has arisen.
(5) When the statement relates to the existence of any relationship by blood,
marriage or adoption between persons as to whose relationship by blood,
marriage or adoption the person making the statement had special means of
knowledge; and when the statement was made before the question in dispute was
raised.
(6) When the statement relates to the existence of any relationship by blood,
marriage or adoption between persons deceased, and is made in any will or deed
relating to the affairs of the family to which any such deceased person
belonged, or in any family pedigree, or upon any tombstone, family portrait or
other thing on which such statements are usually made, and when such statement
was made before the question in dispute was raised.
(7) When the statement is contained in any deed, will or other document which
relates to any such transaction as is mentioned in section 13, clause (a).
(8) When the statement was made by a number of persons, and expressed feelings
or impressions on their part relevant to the matter in question.
Illustrations
(a) The question is, whether A was murdered by B ; or
A dies of injuries received in a transaction in the course of which she was
ravished. The question is whether she was ravished by B ; or
The question is whether A was killed by B under such circumstances that a suit
would lie against B by A's widow.
Statements made by A as to the cause of his or her death, referring
respectively to the murder, the rape and the actionable wrong under
consideration are relevant facts.
(b) The question is as to the date of A's birth.
An entry in the diary of a deceased surgeon regularly kept in the course of
business, stating that, on a given day he attended A's mother and delivered her
of a son, is a relevant fact.
(c) The question is, whether A was in [
A statement in the diary of a deceased solicitor, regularly kept in the course
of business, that on a given day the solicitor attended A at a place mentioned,
in [Chittagong], for the purpose of conferring with him upon specified
business, is a relevant fact.
(d) The question is, whether a ship sailed from [
A letter written by a deceased member of a merchant's firm by which she was
chartered to their correspondents in
(e) The question is, whether rent was paid to A for certain land.
A letter from A's deceased agent to A saying that he had received the rent on
A's account and held it at A's orders, is a relevant fact.
(f) The question is, whether A and B were legally married.
The statement of a deceased clergyman that he married them under such
circumstances that the celebration would be a crime, is relevant.
(g) The question is, whether A, a person who cannot be found, wrote a letter on
a certain day. The fact that a letter written by him is dated' on that day is
relevant.
(h) The question is, what was the cause of the wreck of a ship.
A protest made by the Captain, whose attendance cannot be procured, is relevant
fact
(i) The question is, whether a given road is a public way.
A statement by A, a deceased headman of the village, that the road was public,
is a relevant fact.
(j) The question is, what was the price of grain on a certain day in a
particular market. A statement of the price, made by a deceased banya in the
ordinary course of his business, is a relevant fact.
(k) The question is, whether A, who is dead, was the father of B.
A statement by A that B was his son, is a relevant fact.
(l) The question is, what was the date of the birth of A.
A letter from A's deceased father to a friend, announcing the birth of A
(m) The question is, whether, and when, A and B were married.
An entry in a memorandum‑book by C, the deceased father of B, of his
daughter’s marriage with A on a given date, is a relevant fact.
(n) A sues B1 for a libel expressed in a painted caricature exposed in a shop
window. The question is as to the similarity of the caricature and its
libellous character. The remarks of a crowd of spectators on these points maybe
proved.
33. Evidence given by a witness in a judicial proceeding, or before any
person authorised by law to take it, is relevant for the purpose of proving, in
a subsequent judicial proceeding, or in a later stage of the same judicial
proceeding, the truth of the facts which it states, when the witness is dead or
cannot be found, or is incapable of giving evidence, or is kept out of the way
by the adverse party, or if his presence cannot be obtained without an amount
of delay or expense which, under the circumstances of the case, the Court
considers unreasonable ;
Provided‑------
that the proceeding was between the same parties or their representatives in
interest ;
that the adverse party in the first proceeding had the right and opportunity to
cross‑examine ;,
that the questions in issue were substantially the same in the :first as in the
second proceeding.
Explanation.‑A criminal trial or inquiry shall be deemed to be a
proceeding between the prosecutor and the accused within the meaning of this
section.
OF THE RELEVANCY OFFACTS
STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES
34. Entries in books of account, regularly kept in the course of
business, are relevant whenever they refer to a matter into which the Court has
to inquire, but such statements shall not alone be sufficient evidence to
charge any person with liability.
Illustration .
A sues B for Rs. 1,000, and shows entries in his account books showing B to be
indebted to him to this amount. The entries are relevant, but are not
sufficient, without other evidence, to prove the debt.
35. An entry in any public or other official book, register or record,
stating a fact in issue or relevant fact, and made by a public servant in the
discharge of his official duty, or by any other person in performance of a duty
specially enjoined by the law of the country in which such book, register or
record is kept, is itself a relevant fact.
36. Statements of facts in issue or relevant facts, made in published
maps or charts generally offered for public sale, or in maps or plans made
under the authority of the Central Government or any Provincial Government, as
to matters usually re-presented or stated in such maps, chats or plans, are
themselves relevant facts.
37. When the Court has to form an opinion as to the existence of any
fact of a public nature any statement of it, made in a recital contained is any
Act of Parliament of the United Kingdom; or in any Act of the Central
Legislature, or of any other legislative authority in Pakistan constituted by
any laws for the time being in force or in a Government notification or
notification by the Crown Representative appearing in the official Gazette or
in any printed paper purporting to be the London Gazette or the Government
Gazette of any Dominion, colony or possession of His Majesty is a relevant
fact.
38. 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 such country and to contain
any such law, and any report of a ruling of the Courts of such country
contained in a book purporting to be a report of such rulings, is relevant.
OF THE RELEVANCY OFFACTS
HOW MUCH OF A STATEMENT IS TO BE PROVED
39. When any statement of which evidence is given forms part of a longer
statement, or of a conversation or part of an isolated document, or is
contained in a document which forms part of a book, or of a connected series of
letters or papers, evidence shall be given of so much and no more of the
statement, conversation, document, book or series of letters or papers as the
Court considers necessary in that particular case to the full understanding of
the nature and effect of the statement, and of the circumstances under which it
was made.
OF THE RELEVANCY OFFACTS
JUDGMENTS OF COURTS OF JUSTICE WHEN RELEVANT
40. The existence of any judgment, order or decree which by law prevents
any Court from taking cognizance of a suit or holding a trial, is a relevant
fact when the question is whether such Court ought to take cognizance of such
suit or to hold such trial.
41. A final judgment, order or decree of a competent Court, in the
exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which
confers upon or takes away from any person any legal character, or which
declares any person to be entitled to any such character, or to be entitled to
any specific thing, not as against any specified person but absolutely, is
relevant when the existence of any such legal character, or the title of any
such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof‑‑
that any legal character which it confers accrued at the time when such
judgment, order or decree came into operation ;
that any legal character, to which it declares any such person to be entitled,
accrued to that person at the time when such judgment order or decree declares
it to have accrued to that person ;
that any legal character which it takes away from any such person ceased at the
time from which such judgment, order or decree declared that it had ceased or
should cease ;
and‑that anything to which it declares any person to be so entitled was
the property of that person at the time from which such judgment, order or
decree declares that it had been or should be his property.
42. Judgments, orders or decrees other than those mentioned in section
41 are relevant if they relate to matters of a public nature relevant to the
enquiry ; but such judgments, orders or decrees are not conclusive proof of
that which they state.
Illustration
A sues B for trespass on his land. B alleges the existence of a public right of
way over the land, which A denies.
The existence of a decree in favour of the defendant, in a suit by A against C
for a trespass on the same land, in which C alleged the existence of the same
right of way, is relevant, but it is not conclusive proof that the right of way
exists.
43. Judgments, orders or decrees, other than those mentioned in sections
40, 41 and 42, are irrelevant, unless the existence of such judgment, order or
decree is a fact in issue, or is relevant under some other provision of this
Act.
Illustrations
(a) A and B separately sue C for a libel which reflects upon each of them. C in
each case says that the matter alleged to be libellous is true, and the
circumstances are such that it is probably true in each case, or in neither.
A obtains a decree against C for damages on the ground that C failed to make
out his justification. The fact is irrelevant as between B and C.
(b) A prosecutes B for adultery with C, A's wife.
B denies that C is A's wife, but the Court convicts B of adultery.
Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. C
says that she never was A's wife.
The judgment against B is irrelevant as against C.
(c) A prosecutes B for stealing a cow from him. B is convicted.
A afterwards sues C for the cow, which B had sold to him before his conviction.
As between A and C, the judgment against B is irrelevant.
(d) A has obtained a decree for the possession of land against B. C, B's son,
murders A in consequence.
The existence of the judgment is relevant, as showing motive for a crime.
(e) A is charged with theft and with having been previously convicted of theft.
The previous conviction is relevant as a fact in issue.
(j) A is tried for the murder of B. The fact that B prosecuted A for libel and
that A was convicted and sentenced is relevant under section 8 as showing the
motive for the fact in issue.
44. Any party to a suit or other proceeding may show that any judgment,
order or decree which is relevant under section 40, 4i or 42, and which has
been proved by the adverse party, was delivered by a Court not competent to
deliver it, or was obtained by fraud or collusion.
OPINIONS OF THIRD PERSONS WHEN RELEVANT
45. When the Court has to form an opinion upon a point of foreign law,
or of science, or art, or as to identity of handwriting or finger impressions,
the opinions upon that point of persons specially skilled in such foreign law,
science or art, or in questions as to identity of handwriting or finger
impressions are relevant facts.
Such persons are called experts.
Illustrations
(a) 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.
(b) 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 te act, or
that he was doing what was either wrong or contrary to law.
The opinions of experts upon 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.
(c) The question is, whether a certain document was written by A. Another
document is produced which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written
by the same person or by different persons, are relevant.
46. Facts, not otherwise relevant, are relevant if they support Facts
with the opinions of experts, when such opinions are relevant.
Illustrations
(a) The question is, whether A was poisoned by a certain poison.
The fact that other persons, who were poisoned by that poison, exhibited
certain symptoms which experts affirm or deny to be the symptoms of that poison
is relevant.
(b) The question is whether an obstruction to a harbour is caused by a certain
sea wall.
The fact that other harbours similarly situated in other respects, but where
there were no such sea‑walls, began to be obstructed at about the same
time, it relevant.
47. When the Court has to form an opinion as to the person op by whom
any document was written or signed, the opinion of any to person acquainted
with the handwriting of the person by whom it e? is supposed to be written or
signed that it was or was not written or signed by that person, is a relevant
fact.
Explanation.‑A person is said to be acquainted with the
handwriting of another person when he has seen that person write, or when he
has received documents purporting to be written by that person in answer to
documents written by himself or under his authority and addressed to that person,
or when, in the ordinary course of business, documents purporting to be written
by that person have been habitually submitted to him.
Illustration
The question is, whether a given letter is in the handwriting of A, a merchant
in
B is a merchant in '[
The opinions of B, C and D on the question whether the letter is in the handwriting
of A are relevant, though neither B, C or D ever saw A write.
48. When the Court has to form an opinion as to the existence of any
general custom or right, the opinions, as to the existence of such custom or
right, of persons who would be likely to know of its existence if it existed,
are relevant.
Explanation.‑The expression "general custom or right" includes
customs or rights common to any considerable class of persons.
Illustration
The right of the villagers of a particular village to use the water of a
particular well is a general right within the meaning of this section.
49. When the Court has to form an opinion as to‑--
the usages and tenets of any body of men or family, the constitution and
government of any religious or charitable foundation or,
the meaning of words or terms used in particular districts or by particular
classes of people,
the opinions of persons having special means of knowledge thereon, are relevant
facts.
50. When the Court has to form an opinion as to the relationship of one
person to another, the opinion, expressed by conduct; as to the existence of
such relationship, of any person who, as a member of the family or otherwise,
has special moans of knowledge on the subject, is a relevant fact
Provided that such opinion shall not be sufficient to prove a marriage in
proceedings under the Divorce Act, or in prosecutions under section 494, 495,
497, or 498 of the Pakistan Penal Code.
Illustrations
(a) The question is, whether A and B were married.
The fact that they were usually received and treated by their friends as
husband and wife, is relevant.
(b) The question is, whether A was the legitimate son of B. The fact
that A was always treated as such by members of the family, is relevant.
51. Whenever the opinion of any living person is relevant, the grounds
on which such opinion is based are also relevant.
Illustrations
An expert may give an account of experiments performed by him for the
purpose of forming his opinion.
CHARACTER WHEN RELEVANT
52. In civil cases the fact that the character of any person concerned
is such as to render probable or improbable any conduct imputed to him is
irrelevant, except in so far as such character appears from facts otherwise
relevant.
53. In criminal proceedings the fact that the person accused is of a
good character is relevant.
54. In criminal proceedings the fact that the accused person has a bad
character is irrelevant, unless evidence has been given that he has a good
character, in which case it becomes relevant.
Explanation 1.‑This section does not apply to cases in which the
bad character of any person is itself a fact in issue.
Explanation 2.‑A previous conviction is relevant as evidence of
bad character.
55. In civil cases the fact that the character of any person is such as,
to affect the amount of damages which he ought to receive, is relevant.
Explanation.‑In sections 52, 53, 54 and 55, the word "character
" includes both eputation and disposition ; but; except as provided in
section 54, evidence may be given only of general reputation and general
disposition, and not of particular acts by which reputation or disposition were
shown.
PART II --ON PROOF
CHAPTER III --FACTS WHICH NEED NOT BE PROVED
56. No fact of which the Court will take judicial notice need be proved.
57. The Court shall take judicial notice of the following facts:‑
(l) All Pakistan laws :
(2) All public Acts passed or hereafter to be passed by Parliament, and all
local and personal Acts directed by
Parliament to be judicially noticed;
(3) Articles of War for the Armed Forces:
(4) The course of proceeding of Parliament and of the Central Legislature and
any Legislature established under any laws for the time being in force in
Pakistan.
Explanation.‑The word "Parliament" in clauses (2) and
(4) includes‑----
(1) the Parliament of the United Kingdom of Great Britain and Ireland ;
(2) the Parliament of Great Britain ;
(3) the Parliament of England ;
(4) the Parliament of Scotland ; and
(5) the Parliament of Ireland;
(5) The accession and the sign manual of the Sovereign for the time being of
the United Kingdom of Great Britain and Ireland;
(6) All seals of which English Courts take judicial notice the seals of all the
Courts in Pakistan, and of all Courts out of Pakistan, established by the
authority of the Central Government or the Government representative : the
seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public,
and all seals which any person is authorized to use by any Act of Parliament of
the United Kingdom or other Act or Regulation having the force of law in
Pakistan .
(7) The accession to office, names, titles, functions and signatures of the
persons filling for the time being any public office in Pakistan, if the fact
of their appointment to such office is notified in any official Gazette;
(8) The existence, title and national flag of every State or Sovereign
recognized by the Central Government;
(9) The divisions of time, the geographical divisions of the world, and public
festivals, fasts and holidays notified in the official Gazette;
(10) The territories under the dominion of Pakistan;
(11) The commencement, continuance and termination of hostilities between
Pakistan and any other State or body of persons;
(12) The names of the members and officers of the Court and of their
deputies and subordinate officers and assistants, and also of all officers acting
in execution of its process, and of all advocates, attorneys, proctors, vakils,
pleaders and other persons authorized by law to appear or act before it;
(13) The rule of the road on land or at sea.
In all these cases and also on all matters of public history, literature,
science or art, the Court may resort for its aid to appropriate books or
documents of reference‑
If the Court is called upon by any person to take any judicial notice of any
fact , it may refuse to do so unless and until such person produce any such
book or document as it may consider necessary to enable it to do so.
58. No fact need be proved in any proceeding which the parties thereto
or ,their agents agree to admit at the hearing, or which, before the hearing,
they agree to admit by any writing under their hands, or which by any rule or
pleading in force a t the time they are deemed to have admitted by their
pleadings;
Provided that the Court may, in its discretion. require t ;c facts admitted to
be proved otherwise than by such admissions.
CHAPTER IV OF ORAL EVIDENCE
59. All facts, except the contents of documents may be proved by Oral
evidence.
60. Oral evidence must, in all cases whatever, be direct ; that is to
say‑
if it refers to a fact which could be seen, it must be the evidence of a
witness who says he saw it ;
if it refers to a fact which could be heard, it must be the evidence of a
witness who says he heard it ; if it refers to a fact which could be perceived
by any other sense in any other manner, it must be the evidence of a witness
who says he perceived it by that sense or in that manner ;
if it refers to an opinion or to the grounds on which that opinion is held, it
must be the evidence of the person who holds that opinion on those grounds;
Provided that the opinion of the experts expressed in any treatise commonly
offered for sale, and the grounds on which such opinions are held, may be
proved by the production of such treatises if the author is dead or cannot be
found, or has become incapable of giving evidence, or cannot be called as a
witness without an amount of delay or expense which the Court regards as
unreasonable;
Provided also that, if oral evidence refers to the existence or condition of
any material thing other than a document, the Court may, if it thinks fit,
require the production of such material thing for its inspection.
CHAPTER V --OF DOCUMENTARY
EVIDENCE
61 The contents of documents may be proved either by primary or by
secondary evidence.
62. Primary evidence means the document itself produced for the
inspection of the Court.
Explanation 1.‑Where a document is executed in several parts, each
part is primary evidence of the document.
Where a document is executed in counterpart, each counterpart being executed by
one or some of the parties only, each counterpart is primary evidence as
against the parties executing it.
Explanation 2.‑Where a number of documents are all made by one
uniform process, as in the case of printing, lithography of photography, each
is primary evidence of the contents of the rest; but, where they are all copies
of a common original, they are not primary evidence of the contents of the
original.
Illustration
A person is shown to have been in possession of a number of placards, all
printed at one time from one original. Any one of the placards is primary
evidence of the contents of any other, but no one of them is primary evidence
of the contents of the original.
63. Secondary evidence means and includes‑
(1) certified copies given under the provisions hereinafter contained';
(2) copies made from the original by mechanical processes which in themselves
insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original ;
(4) counterparts of documents as against the parties who did not execute them ;
(5) oral accounts of the contents of a document given by. some person who has
himself seen it.
Illustrations
(a) A photograph of an original is secondary evidence of its contents, though
the two have not been compared, if it is proved that the thing photographed was
the original.
(b) A copy, compared with a copy of a letter made by a copying machine is
secondary evidence of the contents of the letter, if it is shown that the copy
made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original
is secondary evidence ; but the copy not so compared is not secondary evidence
of the original, although the copy from which it was transcribed was compared with
the original.
(d) Neither an oral account of a copy compared with the original, nor an oral
account of a photograph or machine‑copy of the original, is secondary
evidence of the original.
64. Documents must be proved by primary evidence except in the cases
hereinafter mentioned.
65. Secondary evidence may be given of the existence, condition or
contents of a document in the following cases:
(a) when the original is shown or appears to be in the possession or power‑----
of the person against whom the document is sought to n be proved, or of any
person out of reach of, or not g subject to, the process of the Court, or
of any person legally bound to produce it, and when, after the notice mentioned
in section 66, such person does not produce it ;
(b) when the existence, condition or contents of the original have been proved
to be admitted in writing by the person against whom it is proved or by his
representative in interest ;
(c) when the original has been destroyed or lost, or when the party offering
evidence of its contents cannot, for any other reason not arising from his own
default or neglect, produce it in reasonable time ;
(d) when toe original is of such a nature as not to be easily moveable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by
this Act, or by any other law in force in Pakistan to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which
cannot conveniently be examined in Court, and the fact to be proved is the
general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the
document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of
secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by
any person who has examined them, and who is skilled in the examination of such
documents.
66. Secondary evidence of the contents of the documents referred to in
section 65, clause (a), shall not be given unless the party proposing to give
such secondary evidence has previously given to the party in whose possession
or power the document is, or to his attorney or pleader, such notice to produce
it as is prescribed by law ; and if no notice is prescribed by law, then such
notice as the Court considers reasonable under the circumstances of the case;
Provided that such notice shall not be required in order to render secondary
evidence admissible in any of the following cases, or in any other case in
which the Court thinks fit to dispense with it .‑----
(1) when the document to be proved is itself a notice ;
(2) when, from the nature of the case, the adverse party must know that he will
be required to produce it ;
(3) when it appears or is proved that the adverse party has obtained possession
of the original by fraud or force ;
(4) when the adverse party or his agent has the original in Court ;
(5) when the adverse party or his agent has admitted the loss of the document ;
(6) when the person in possession of the document is out of reach of, or not
subject to, the process of the Court.
67. If a document is alleged to be signed or to have been written wholly
or in part by any person, the signature or the handwriting of so much of the
document as is alleged to be in that person's handwriting must be proved to be
in his handwriting.
68. If a document is required by law to be attested, it shall not be
used as evidence until one attesting witness at least has been called for the
purpose of proving its execution, if there be an attesting witness alive, and
subject to the process of the Court and capable of giving evidence;
Provided that it shall not be necessary to call an attesting witness in proof
of the execution of any document, not being a will, which has been registered
in accordance with the provisions of the Registration Act, 1908, unless its
execution by the person by whom it purports to ‑rave been executed is
specifically denied.
69. If no such attesting witness can be found, or if the document
purports to have been executed in the
70. The admission of a party to an attested document of its execution by
himself shall be sufficient proof of its execution as against him, though it be
a document required by law to be attested.
71. If the attesting witness denies or does not recollect the execution
of the document, its execution may be proved by other evidence.
72. An attested document not required by law to be attested may be
proved as if it was unattested.
73. In order to ascertain whether a signature, writing or seal is that
of the person by whom it purports to have been written or made, any signature,
writing or seal admitted or proved to the satisfaction of the Court to have
been written or made by that person may be compared with the one which is to be
proved, although that signature, writing or seal has not been produced or
proved for any other purpose.
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 figures alleged to have been written by such person.
This section applies also, with any necessary modifications, to finger‑impressions.
PUBLIC DOCUMENTS
74. The following documents are public documents:‑--
(1) documents forming the acts or records of the acts;---
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive of any part of
Pakistan or of the Commonwealth, or of a foreign country;
(2) public records kept in Pakistan of private documents.
75. All other documents are private.
76. Every public officer having the custody of a public document, which
any person has a right to inspect, shall give that person on demand a copy of
it on payment of the legal fees therefor, together with a certificate written
at the foot of such copy that it is a true copy of such document or part thereof,
as the case may be, and such certificate shall be dated and subscribed by such
officer with his name and his official title, and shall be sealed, whenever
such officer is authorized by law to make use of a seal, and such copies so
certified shall be called certified copies.
Explanation.‑Any officer who, by the ordinary course of official duty, is
authorized to deliver such copies, shall be deemed to have the custody of such
documents within the meaning of this section.
77. Such certified copies may be produced in proof of the contents of
the public documents or parts of the public documents of which they purport to
be copies.
78. The following public documents may be proved as follows:‑----
(1) Acts, orders or notifications of the Central Government in any of its
departments, or of the Crown Representative or of any 'Provincial Government or
any department of any Provincial Government by the records of the departments,
certified by the heads of those departments respectively, or by any document purporting
to be printed by order of any such Government or, as the case may be, of the
Crown Representative :
(2) the proceedings of the Legislatures,‑
by the journals of those bodies respectively, or by published Acts or
abstracts, or by copies purporting to be printed by order of the Government
concerned :
(3) proclamations, orders or regulations issued by Her Majesty or by the Privy
Council, or by any department of Her Majesty's Government,‑---
by copies or extracts contained in the London Gazette, or purporting to be
printed by the Queen's Printer
(4) the Acts of the Executive or the proceedings of the Legislature of a
foreign country,‑by journals published by their authority, or commonly
received in that country as such, or by a copy certified under the seal of the
country or sovereign, or by a recognition thereof in some Central Act;
(5) the proceedings of a municipal body in Pakistan,‑
by a copy of such proceedings, certified by the legal keeper thereof, or by a
printed book purporting to be published by the authority such body;
(6) public documents of any other class in a foreign country,‑
by the original, or by a copy certified by the legal keeper thereof, with a
certificate under the seal of a notary public, or of a Pakistan Consul or
diplomatic agent, that the copy is duly certified by the officer having the
legal custody of the original, and upon proof of the character of the document
according to the law of the foreign country.
PRESUMPTIONS AS TO DOCUMENTS
79. The Court shall presume every document purporting to be a
certificate, certified copy or other document, which is by law declared to be
admissible as evidence of any particular fact and which purports to be duly
certified by any officer of the Central Government or a Provincial Government,
or by any officer in an Acceding State or non‑Acceding State who is duly
authorised thereto by the Central Government to be genuine;
Provided that such document is substantially in the form and purports to be
executed in the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such document
purports to be signed or certified, held, when he signed it, the official
character which he claims in such paper.
80. Whenever any document is produced before any Court, purporting to be
a record or memorandum of the evidence, or of any part of the evidence given by
a witness in a judicial proceeding or before any officer authorized by law to
take such evidence or to be a statement or confession by any prisoner or accused
person, taken in accordance with law, and purporting to be signed by any Judge
or Magistrate, or by any such officer as aforesaid, the Court shall presume‑---
that the document is genuine ; that any statements as to the circumstances
under which it was taken, purporting to be made by the person signing it, are
true, and that such evidence, statement or confession was duly taken.
81. The Court shall presume the genuineness of every document purporting
to be the London Gazette or any official Gazette, or the Government Gazette of
any colony, dependency or possession of the British Crown, or to be a newspaper
or journal, or to be a copy of a private Act of Parliament of the United
Kingdom printed by the Queen's Printer and of every document purporting to be a
document directed by any law to be kept by any person, if such document is kept
substantially in the form required by law and is produced from proper custody.
82. When any document is produced before any Court, purporting to be a
document which, by the law in force for the time being in England and Ireland,
would be admissible in proof of any particular in any Court of Justice in
England or Ireland, without proof of the seal or stamp or signature
authenticating it, or of the judicial or official character claimed by the
person by whom it purports to be signed, the Court shall presume that such
seal, stamp or signature is genuine, and that the person signing it held, at
the time when he signed it, the judicial or official character which he claims,
and the document shall be admissible for the same purpose for which it 'would
be admissible in England or Ireland.
83. The Court shall presume that maps or plans purporting to be made by
the authority of the Central Government or any Provincial Government were so
made, and are accurate ; but maps or plans made for the purposes of any cause
must be proved to be accurate.
84. The Court shall presume the genuineness of every book purporting to
be printed or published under the authority of the Government of any country,
and to contain any of the laws of that country,
and of every book purporting contain reports of decisions of the Courts of such
country;
85. The Court shall presume that every document purporting to be a power‑of‑attorney,
and to have been executed before, and authenticated by, a notary public, or any
Court, Judge,
86. The Court may presume that any document purporting to be a certified
copy of any judicial record of any country not forming part of Pakistan is
genuine and accurate, if the document purports to be certified in any manner
which is certified by any representative of the Central Government in or for
such country to be the manner commonly in use in that country for the
certification of copies of judicial records.
An officer who, with respect to any territory or place not forming part of
87. The Court may presume that any book to which it may refer for
information on matters of public or general interest, and that any published
map or chart, the statements of which are relevant facts and which is produced
for its inspection was written and published by the person and at the time and
place, by whom or at which it purports to have been written or published.
88. The Court may presume that a message, forwarded from a telegraph
office to the person to whom such massage purports to be addressed, corresponds
with a massage delivered for transmission at the office from which the message
purports to be sent ; but the Court shall not make any presumption as to the
person by whom such message was delivered for transmission.
89. The Court shall presume that every document, called for and not
produced after notice to produce, was attested, stamped and executed in the
manner required by law.
90. Where any document, purporting or proved to be thirty years old, is
produced from any custody which the Court in the particular case considers
proper, the Court may presume that the signature and every other part of such
document, which purports to be in the handwriting of any particular person, is
in that person's handwriting, and, in the case of a document executed or
attested, that it was duly executed and attested by the persons by whom it
purports to be executed and attested.
Explanation.‑Documents are said to be in proper custody if they are in
the place in which, and under the care of the person with whom, they would
naturally be ; but no custody is improper if it is proved to have had a
legitimate origin, or if the circumstances of the particular case are such as
to render such an origin probable.
This explanation applies also to section 81.
Illustrations
(a) A has been in possession of landed property for a long time. He produces
from his custody deeds relating to the land, showing his titles to it. The
custody is proper.
(b) A produces deeds relating to landed property of which he is the mortagagee.
The mortgagor is in possession. The custody is proper.
(c) A, a connection of B, produces deeds relating to lands in B's possession
which were deposited with him by B for safe custody. The custody is proper.
91. When the terms of a contract, or of a grant, or of any other
disposition of property, have been reduced to the form of a document, and in
all cases in which any matter is required by law to be reduced to the form of a
document, no evidences shall be given in proof of the terms of such contract,
grant or other disposition of property, or of such matter, except the document
itself,, or secondary evidence of its contents in cases in which secondary
evidence is admissible under the provisions hereinbefore contained.
Exception 1.‑When a public officer is required by law to be,
appointed in writing, and when it is shown that any particular person has acted
as such officer, the writing by which he is appointed' need not be proved.
Exception 2.‑Wills admitted to probate in
Explanation 1.‑This section applies equally to cases in which the
contracts, grants or dispositions of property referred to are contained in one
document :end to cases in which they are contained in more documents than one.
Explanation 2.‑Where there are more originals than one, one
original only need be proved.
Explanation 3.‑The statement, it; any document whatever, of a fact
other than the facts referred to in this section, shall not preclude the
admission of oral evidence as to the same fact.
Illustrations
(a) If a contract be contained in, several letters, all the letters in which it
is contained must be proved.
(b) If a contract be contained in a bill of exchange, the bill of exchange must
be proved.
(c) If a bill of exchange is drawn in a set of three, one only need be proved.
(d) A contracts, in writing, with B, for the delivery of indigo upon certain
terms. The contract mentions the fact that B had paid A the price of other
indigo contracted for verbally on another occasion.
Oral evidence is offered that no payment ‑1s made for the other indigo.
The evidence is admissible.
(e) A gives B a receipt for money paid by B.
Oral evidence is offered of the payment.
The evidence is admissible.
CHAPTER VI
OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE
92. When the terms of any such contract grant or other disposition of
property, or any matter required, law to be reduced to the form of a document,
have been proved according to the last section, no evidence of any oral
agreement or statement shall be admitted, as between the parties, to any such instrument
or their representatives in interest, for the purpose of contradicting ,
varying, adding to, or subtracting from, its terms;
Proviso (1).‑Any fact may be proved which would invalidate any document,
or which would entitle any person to any decree or order relating thereto ;
such as fraud, intimidation, illegality, want of due execution, want of
capacity in any contracting party, want or failure of consideration, or mistake
in fact or law.
Proviso (2).‑The existence of any separate oral agreement as, to any
matter on which a document is silent, and which is not inconsistent with its
terms, maybe proved. In considering whether or not this proviso applies, the
Court shall have record to the degree of formality of the document.
Proviso (3).‑The existence of any separate oral agreement constituting a
condition precedent to the attaching of any obligation under any such contract,
grant or disposition of property, may be proved. .
Proviso (4).‑The existence of any distinct subsequent oral agreement to rescind
or modify any such contract, grant or disposition of property, may be proved,
except in cases in which such contract, grant or disposition of property is by
law required to be in writing, or has been registered according to the law in
force for the time being as to the registration of documents.
Proviso (5).‑Any usage or custom by which incidents not expressly
mentioned in any contract are usually annexed to contracts of that description,
may be proved;
Provided that the annexing of such incident would not be repugnant to, or
inconsistent with, the express terms of the contract.
Proviso (6).‑Any fact may be proved which shows in what manner the
language of a document is related to existing facts.'
Illustrations
(a) A policy of insurance is effected on goods "in ships from
(b) A agrees absolutely in writing to pay B Rs. 1,000 on the first
March, 1873. The fact that, at the same time an oral agreement was made that
the money should not be paid till the thirty‑first March cannot be
proved,
(c) An estate called "the Rampore tea estate" is sold by a deed which
contains a map of the property sold. The fact that land not included in the map
had always been regarded as part of the estate and was meant to pass by the
deed cannot be proved.
(d) A enters into a written contract with B to work certain mines, the property
of B, upon certain terms. A was induced to do so by a misrepresentation of B's
as to their value. This fact may be proved.
(e) A institutes a suit against B for the specific performance of a contract,
and also prays that the contract may be reformed as to one of its provisions,
as that provision was inserted in it by mistake. A may prove that such a
mistake was made as would by law entitle him to have the contract reformed.
(f) A orders goods of B by a letter in which nothing is said as to the time of
payment, and accepts the goods on delivery. B sues A for the price. A may show
that the goods were supplied on credit for a term still unexpired.
(g) A sells B a horse and verbally warrants him sound. A gives B a paper in
these words : "Bought of A horse for Rs. 500". B may prove the verbal
warranty.
(h) A hires lodgings of B, and gives a card on which is written‑
"Rooms Rs. 200 a month." A may prove a verbal agreement that these
terms were to include partial board.
A hires lodgings of B for a year, and a regularly stamped agreement, drawn up
by an attorney, is made between them. It is silent on the subject of board. A
may not prove that board was included in the term verbally.
(i) A applies to B for a debt due to A by sending a receipt for the money. B
keeps the receipt and does not send the money. In a suit for the amount A may
prove this.
(j) A and B make a contract in writing to take effect upon the happening of a
certain contingency. The writing is left with B, who sues A upon it. A may show
the circumstances under which it was delivered.
93. When the language used in a document is, on its face, ambiguous or
defective, evidence may not be given of facts which would show its meaning or
supply its defects.
Illustrations
(a) A agrees, in writing, to sell a horse to B for Rs. 1,000 or Rs. 1,500.
Evidence cannot be given to show which price was to be given. (b) A deed
contains blanks. Evidence cannot be given of facts which would show how they
were meant to be filled.
94. When language used in a document is plain in itself, and when it
applies accurately to existing facts, evidence may not be given to show that it
was not meant to apply to such facts.
Illustrations
A sells to B, by deed, "my estate at Rangpur containing 100 bighas".
A has an estate at ' Rangpur containing 100 bighas. Evidence may not be given
of the fact that the estate meant to be sold was one situated at a different
place and of a different size.
95. When language used in a document is plain in itself, but is
unmeaning in reference to existing facts, evidence may be given to show that it
was used in a peculiar sense.
Illustrations
A sells to B, by deed, "my house in
A had no house in
These facts may be proved to show that the deed related to the house at
Keamari.
96. When the facts are such that the language used might have been meant
to apply to any one, and could not have been meant to apply to more than one,
of several persons or things, evidence may be given of facts which show which
of those persons or things it was intended to apply to.
Illustrations
(a) A agrees to sell to B, for Rs. 1,000 " my white horse ". A has
two white horses. Evidence may be given of facts which show which of them was
meant.
(b) A agrees to accompany B to Haidarabad. Evidence may be given of
facts showing whether Haidarabad in the Dekkhan or Haidarabad in
97. When the language used applies partly to one set of existing facts,
and partly to another set of existing facts, but the whole of it does not apply
correctly to either, evidence may be given to show to which of the two it was
meant to apply.
Illustration
A agrees to sell to B "my land at X in the occupation of Y". A has
land at X but not in the occupation of Y, and he has land in the occupation of
Y, but it is not at X. Evidence may be given of facts showing which he meant to
sell.
98. Evidence may be given to show the meaning of illegible or not
commonly intelligible characters, of foreign, obsolete, technical, local and
provincial expressions, of abbreviations and of words used in a peculiar sense.
Illustration
A, a sculptor, agrees to sell to B, "all my modes" A has both models
and modelling tools. Evidence may be given to show which he meant to sell.
99. Persons who are not parties to a document, or their representatives
in interest, may give evidence of any facts tending to show a contemporaneous
agreement varying the terms of the document.
Illustration
A and B make a contract in writing that B shall sell A certain cotton, to be
paid for on delivery. At the same time they make an oral agreement that three
months' credit shall be given to A. This could not be shown as between A and B,
but it might be shown by C, if it affected his interests.
100. Nothing in this Chapter contained shall be taken to affect any of
the provisions of the Indian Succession Act (X of 1865)/ as to the construction
of wills.
PART III--PRODUCTION AND EFFECT OF EVIDENCE
CHAPTER VII--OF THE BURDEN OF PROOF
101. Whoever desires any Court to give judgment as to any legal right or
liability dependent on the existence of facts which he asserts, must prove that
those facts exist.
When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.
(a) A desires a Court to give judgment that B shall be punished for a crime
which A says B has committed.
A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled t o certain
land in the possession of B, by reason of facts which he asserts, and which B
denies, to be true.
A must prove the existence of those facts.
102. The burden of proof in a suit or proceeding lies on that person who
would fail if no evidence at all were given on either side.
Illustration
(a) A sues B for land of which B is in possession, and which, as A asserts, was
left to A by the will of C, B's father.
If no evidence were given on either side, B would be entitled to retain his
possession.
Therefore the burden of proof is on A .
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by
fraud, which A denies.
If no evidence were given on either side, A would succeed as the bond is, not
disputed and the fraud is not proved.
Therefore the burden of proof is on B .
103. The burden of proof as to any particular fact lies on that person
who wishes the Court to believe in its existence, unless it is provided by any
law that the proof of that fact shall lie on any particular person.
Illustration
(a) A prosecutes B for theft, and wishes the Court to believe that B admitted
the theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere.
He must prove it.
104. The burden of proving any fact necessary to be proved in order to
enable any person to give evidence of any other fact is on the person who
wishes to give such evidence.
Illustration
(a) A wishes to prove a dying declaration by B. A must prove B's death.
(b) A wishes to prove, by secondary evidence, the contents of a lost
document.
A must prove that the document has been lost.
105. When a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any .v of the General
Exceptions in the Pakistan Penal Code, or within, any special exception
or proviso contained in any other part of the '0. same Code, or in any
law defining the offence, is upon‑him, and the Court shall presume the
absence of such circumstances.
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he
did not know the nature of the act.
The burden of proof is on A.
(b) A, accused of murder, alleges that, by grave and sudden provocation,
he was deprived of the power of self‑control.
The burden of proof is on A.
(c) Section 325 of the Pakistan Penal Code provides that whoever, except in the
case provided for by section 335, voluntarily causes grievous hurt, shall be subject
to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances bringing the case under suction 335
lies on A.
106. When any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him.
Illustration
(a) When a person does an act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that
intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The
burden of proving that he had a ticket is on him. .
107. When the question is whether a man is alive or dead, and it is
shown that he was alive within thirty years, the burden of proving that he is
dead is on the person who affirms it.
108. Provided that when the question is whether a man is alive or dead,
and it is proved that he has not been heard of for seven years by those who
would naturally have heard of him if he had been alive, the burden of proving
that he is alive is shifted to the person who arms it.
109. When the question is whether persons are partners, landlord and
tenant, or principal and agent, and it has been shown that they have been
acting as such, the burden of proving that they do not stand, or have ceased to
stand, to each other in those relationships respectively, is on the person who
affirms it.
110. When the question is whether any person is owner of anything of
which he is shown to be in possession, the burden of proving that he is not the
owner is on the person who affirms that. he is not the owner.
111. Where there is a question as to the good faith of a transaction
between parties, one of whom stands to the other in a position of active
confidence, the burden of proving the good faith of the do transaction is on
the party who is in a position of active confidence.
Illustration
(a) The good faith of a sale by a client to an attorney is in question in a
suit brought by the client. The burden of proving the good faith of the
transaction is on ate attorney.
(b) The good faith of a sale by a son just come of age to a father is in
question in a suit brought by the son. The burden of proving the good faith of
the transaction is on the father.
112. The fact that any person was born during the continuance of a valid
marriage between his mother and any man, or within in two hundred and eighty
days after its dissolution, the mother e remaining unmarried, shall be
conclusive hoof that he is the legitimate son of that man, unless it can be
shown that the hat ties to the marriage had no access to each other at any time
when he could have been begotten.
113. A notification in the official Gazette that any portion of British
territory has before the commencement of Part III of the Government of India
Act, 1935 been ceded to any Native State, 2. Prince or Ruler, shall be
conclusive proof that a valid cession of such territory took place at the date
mentioned in such notification.
114. The Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common course of natural
events, human conduct and public and private business, in their relation to the
facts of the particular case.
Illustration
The Court may presume‑---
(a) that a man who is in possession of stolen goods soon after the theft, is
either the thief or has received the goods knowing them to be stolen, unless he
can account for his possession ;
(b) that an accomplice is unworthy of credit, unless he is corroborated
in material particulars ;
(c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for
good consideration ;
(d) that a thing or state of things which has been shown to be in existence
within a period shorter than that within which such things or states of things
usually cease to exist, is still in existence ;
(e) that judicial and official acts have been regularly performed ;
(f) that the common course of business has been followed in particular cases ;
(g) that evidence which could be and is not produced would, if produced, be
unfavourable to the person who withholds it ; ‑
(h) that, if a man refuses to answer a question which he is not compelled to
answer by law, the answer, if given, would be unfavourable to him ;
(i) that when a document creating an obligation is in the hands of the obligor,
the obligation has been discharged.
But the Court shall also have regard to such facts as the following, in
considering whether such maxims do or do not apply to the particular case
before it :‑
as to illustration (a)‑A shop‑keeper has in his till a marked rupee
soon after it was stolen, and cannot account for its possession specifically,
but is continually receiving rupees in the course of his business;
as to illustration (b)‑A, a person of the highest character, is tried for
causing a man's death by an act of negligence in arranging certain machinery.
B, a person of equally good character, who also took part in the arrangement,
describes precisely what was done, and admits and explains the common carelessness
of A and himself;
as to illustration (b)‑a crime is committed by several persons. A, B and
C, three of the criminals, are captured on the spot and kept apart from each
other. Each gives an account of the crime implicating D, and the accounts corroborate
each other in such a manner as to render previous concert highly improbable;
as to illustration (c)‑A, the drawer of a bill of exchange, was a man of
business. B, the acceptor, was a young and ignorant person, completely under
A's influence;
as to illustration (d)‑it is proved that a river ran in a certain course
five ears ago, but it is known that‑there have been floods since that
time which might change its course;
as to illustration (e)‑a judicial act, the regularity of which is in
question, was performed under exceptional circumstances;
as to illustration (f) ‑the question is, whether a letter was received.
It is shown to have been posted, but the usual course of the post was
interrupted by disturbances;
as to illustration (g)‑a man refuses to produce a document which would
bear on a contract of small importance on which he is sued, but which might
also injure the feelings and reputation of his family;
as to illustration (h) ‑a man refuses to answer a question which he is
not compelled by law to answer, but the answer to it might cause loss to him‑in
matters‑unconnected with the matter in relation to which it is asked : as
to illustration (i)‑‑.a bond is in possession of the obligor, but
the circumstances of the case are such that he may have stolen it.
CHAPTER VIII ESTOPPEL
115. When one person has, by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing to be true
and to act upon such belief, neither he nor his representative shall be allowed,
in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing.
Illustration
A intentionally and falsely leads B to believe that certain land belongs to A,
and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the
sale on the ground that, at the time of the sale, e had no title. H; must not
be allowed to prove his want of title.
116. No tenant of immoveable property, or person claiming through such
tenant, shall, during the continuance of the tenancy, and be permitted to deny
that the landlord of such tenant had, at the lice beginning of the tenancy, a
title to such immoveable property ; and no person who came upon any immoveable
property by the license of the person in possession thereof shall be permitted
to deny that such person had a title to such possession at the time when such
license was given.
117. No acceptor of a bill of exchange shall be permitted to deny that
the drawer had authority to draw such bill or to endorse acc it ; nor shall any
bailee or licensee be permitted to deny that his ex bailor or licensor had, at
the time when the bailment or license commenced, authority to make such
bailment or grant such license.
Explanation (1). The acceptor of a bill of exchange may deny that the
bill was really drawn by the person by whom it purports to have been drawn.
Explanation (2).‑If a bailee delivers the goods bailed to a person
other than the bailor, he may prove that such person had a right to them as
against the bailor.
PART III--PRODUCTION AND EFFECT OF EVIDENCE
CHAPTER IX OF WITNESSES
118. All persons shall be competent to testify unless the Court
considers that they are prevented from understanding the questions f put to
them, or from giving rational answers to those questions, by tender years,
extreme old age, disease, whether of body or mind, or any other cause of the
same kind.
Explanation. ‑A lunatic is not incompetent to testify, unless he
is prevented by his lunacy from understanding the questions put to him and
giving rational answers to them.
119. A witness who is unable to speak may give his evidence in any other
manner in which he can make it intelligible, as by writing or by signs ; but
such writing must be written and the signs made in open Court. Evidence so
given shall be deemed to be oral evidence.
120. In all civil proceedings the parties to the suit, and the husband
or wife of any party to the suit, shall be competent witnesses. In criminal
proceedings against any person, the husband or wife of such person,
respectively, shall be a competent witness.
121. 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 matter which occurred in his presence whilst he was so
acting.
Illustration
(a) 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.
(b) A is accused before the Court of Session of having given false
evidence before B, a Magistrate. B cannot be asked what A said, except upon the
special order of the superior Court.
(c) A is accused before the Court of Session of attempting to murder a police‑officer
whilst on his trial before B, a Sessions Judge. B may be examined as to what
occurred.
122. 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.
123. 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, who shall
give or withhold such permission as he thinks fit.
124. 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.
125. 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 whence he got any information
as to the commission of any offence against the public revenue.
Explanation.‑"Revenue‑officer" in this section means any
officer employed in or about the business of any branch of the public revenue.
126. No barrister, attorney, pleader or vakil shall at any time be
permitted, unless with his client's express consent, to disclose any
communication made to him in the course and for the purpose of his employment
as such barrister, pleader, attorney or vakil, by or on behalf of his client,
or to state the contents or condition of any document with which he has become
acquainted in the course and for the purpose of his professional employment, or
to disclose any advice given by him to his client in the course and for the
purpose of such employment;
Provided that nothing in this section shall protect from disclosure‑----
(1) any such communication made in furtherance of any illegal purpose;
(2) any fact observed by any barrister, pleader, attorney or vakil, in the
course of his employment as such, showing that any crime or fraud has been
committed since the commencement of his employment.
It is immaterial whether the attention of such barrister, pleader, attorney or
vakil was or was not directed to such fact by or on behalf of his client.
Explanation. The obligation stated in this section continues after the
employment has ceased. ,
Illustration
(a) A, a client, says to B, an attorney‑"I have committed forgery
and I wish you to defend me."
As the defence of a man known to be guilty is not a criminal purpose, this
communication is protected from disclosure.
(b) A, a client, says to B, an attorney‑"I wish to obtain
possession of property by the use of a forged deed on which I request you to
sue.
The communication, being made in furtherance of a criminal purpose, is not
protected from disclosure.
(c) A, being charged with embezzlement, retains B, an attorney, to defend him.
In the course of the proceedings, B observes that an entry has been made in A's
account book, charging A with the sum said to have been embezzled, which entry
was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a
fraud has been committed since the commencement of the proceedings, it is not
protected from disclosure.
127. The provisions of section 126 shall apply to interpreters and the
clerks or servants of barristers, pleaders, attorneys and vakil;
128. If any party to a suit gives evidence therein at his own instance
or otherwise, he shall not be deemed to have consented thereby to such
disclosure as is mentioned in section 126; and, if any party to a suit or
proceeding calls any such barrister, pleader, attorney or vakil as a witness,
he shall be deemed to have consented to such disclosure only if he questions
such barrister, attorney or vakil on matters which, but for such question, he
would not be at liberty to disclose.
129. 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 which 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
no others.
130. No witness who is not a party to a suit shall be
compelled to produce his title‑deeds to any property or any document in
virtue of which he holds any property as pledgee or mortgagee or any document
the production of which might tend to criminate him, unless he has agreed in
writing to produce them with the person seeking the production of such deeds or
some person through whom he claims.
131.No one shall be compelled to produce documents in
his possession, which any other person would be entitled to refuse to produce
if they were in his possession, unless such last‑mentioned person
consents to their production.
132. A witness shall not be excused from answering any
question as to any matter relevant to the matter in issue in any suit or in any
civil or criminal proceeding, upon the ground that the answer to such question
will criminate, or may tend directly or indirectly to Criminate, such witness,
or that it will expose, or tend directly or indirectly to expose, such witness
to a penalty or forfeiture of any kind;
Provided that no such answer, which a witness shall be compelled to
give, shall subject him to any arrest or prosecution, or be roved against him
in any criminal proceeding, except a prosecution for giving false evidence by
such answer.
133. An accomplice shall be a competent witness against
an accused person ; and a conviction is not illegal merely because it proceeds
upon the uncorroborated testimony of an accomplice.
134. No particular number of witnesses shall in any
case be required for the proof of any fact.
PART III--PRODUCTION AND EFFECT OF EVIDENCE
CHAPTER X OF THE EXAMINATION OF WITNESSES
135. The order in which witnesses are produced and
examined shall be regulated by the law and practice for the time being relating
to civil and criminal procedure respectively, and, in the absence of any such
law, by the discretion of the Court.
136. When either party proposes to give evidence of any
fact, the Judge may ask the party proposing to give the evidence in what manner
the alleged fact, if proved, would be relevant ; and the Judge shall admit the
evidence' if he thinks that the fact, if proved, would be relevant and not
otherwise.
If the fact proposed to be proved is one of which evidence is admissible
only upon proof of some other fact, such last‑mentioned fact must be
proved before evidence is given of the fact first mentioned, unless the party
undertakes to give proof of such fact, and the Court is satisfied with such
undertaking.
If the relevancy of one alleged fact depends upon another alleged fact
being first proved, the Judge may, in his discretion, either permit evidence of
the first fact to be given before the second fact is proved, or require
evidence to be given of the second fact before evidence is given of the first
fact.
(a) It is proposed to prove a statement about a relevant fact by a
person alleged to be dead, which statement is relevant under section 32.
The fact that the person is dead must be proved by the person proposing
to prove the statement, before evidence is given of the statement:
(b) It is proposed to prove, by a copy, the contents of a document said
to b lost. ,
The fact that the original is lost must be proved by the person
proposing to produce the copy, before the copy is produced.
(c) A is accused of receiving stolen property knowing it to have been
stolen.
It is proposed to prove that he denied the possession of the property.
The relevancy of the denial depends on the identity of the property. The
Court may, in its discretion, either require the property to be identified
before the denial of the possession is proved, or permit the denial of possession
to be proves before the property is identified.
(d) It is proposed to prove a fact (A) which is said to have been the
cause or effect of a fact in issue. There are several intermediate facts (B, C
and D' which must be shown to exist before the fact (A) can be regarded as the
cause of effect of the fact in issue. The Court may either permit A to be
proved before B, C or D is proved, or may require proof of B, C and D before
permitting proof of A.
137. The examination of a witness by the party who
calls him shall be called his examination‑in‑chief.
The examination of a witness by the adverse party shall be called his
cross‑examination.
The examination of a witness, subsequent to the cross‑examination
by the party who called him, shall be called his re‑examination.
138. Witnesses shall be first examined‑in‑chief,
then (if the adverse party so desires) cross‑examined, then (if the party
calling him so desires) re‑examined.
The examination and cross‑examination must relate to relevant, but
the cross‑examination need not be confined to the facts to which the
witness testified on his examination‑in‑chief;
The re‑examination shall be directed to the explanation of matters
referred to in cross‑examination ; and, if new matter is, by permission,
of the Court, introduced in re‑examination, the adverse party may further
cross‑examine upon that matter.
139. A person summoned to produce a document does not
become a witness by the mere fact that he produces it and cannot be cross‑examination
unless and until he is called as a witness.
140. witnesses to character tray be cross‑examined
and re-examined.
141. And question suggesting the answer which the
person putting it wishes or expects to receive is called a leading question.
142. Leading questions must not, if objected to by the
adverse party be asked in an examination‑in‑chief, or in a re‑examination,
except with the permission of the Court.
The Court shall permit leading questions as to matters which are
introductory or undisputed, or which have, in its opinion, been already
sufficiently proved.
143. Leading questions may be asked in cross‑examination.
144. Any witness may be asked, whilst under
examination, whether any contract, grant or other disposition of property, as
to which he is giving evidence, was not contained in a document, and if he says
that it was, or if he is about to make any statement as to the contents of any
document, which, in the opinion of the Court, ought to be produced, the adverse
party may object to such evidence being given until such document is produced,
or until facts have been proved which entitle the party who called the witness
to give secondary evidence of it.
Explanation.‑A witness may give oral evidence
of statements made by other persons about the contents of documents if such
statements are in themselves relevant facts.
Illustration
The question is, whether A assaulted B.
C deposes that he heard A say to D‑"B wrote a letter accusing
me of theft, and I will be revenged on him." This statement is relevant,
as showing A's motive for the assault, and evidence may be given of it, though
no other evidence is given about the letter.
145. A witness may be cross‑examined as to
previous statements made by him in writing or reduced into writing, and
relevant to matters in question, without such writing being shown to him, or
being proved; but, if it is intended to contradict him by the writing, his
attention must, before the writing can be proved, be called to those parts of
it which are to be used for the purpose of contradicting him.
146. When a witness is cross‑examined, he may, in
addition to the questions hereinbefore referred to, be asked any questions
which tend‑
(1) to test his veracity,
(2) to discover who he is and what is his position in life, or
(3) to shake his credit, by injuring his character, although the answer
to such questions might tend directly or indirectly to criminate him or might
expose or tend directly or indirectly to expose him to a penalty or forfeiture.
147. If any such question relates to a matter relevant
to the suit or proceeding, the provisions of section 132 shall apply thereto.
148. If any such question relates to a matter not
relevant to the suit or proceeding, except in so far as it affects the credit
of the witness by injuring his character, the Court shall decide whether or not
the witness shall be compelled to answer it, and may, if it thinks fit, warn
the witness that he is not obliged to answer it. In exercising its discretion,
the Court shall have regard to the following consideration:‑
(1) such questions are proper if they are of such a nature that the
truth of the imputation conveyed by them would seriously affect the opinion of
the Court as to the credibility of the witness on the matter to which he
testifies:
(2) such questions are improper if the imputation which they convey
relates to matters so remote in time, or of such a character, that the truth of
the imputation would not affect, or would affect in a slight degree, the
opinion of the Court as to the credibility of the witness on the matter to
which he testifies;
(3) such questions are improper if there is a great disproportion
between the importance of the imputation made against the witness's character
and the importance of his evidence;
(4) the Court may, if it sees fit, draw, from the witness's refusal to
answer, the inference that the answer if given would be unfavourable.
149. No such question as is referred to in section 148
ought to be asked, unless the person asking it has reasonable grounds for
thinking that the imputation which it conveys is well‑founded.
Illustration
(a) A barrister is instructed by an attorney or vakil that an important
witness is a dakait. This is a reasonable ground for asking the witness whether
he is a dakait.
(b) A pleader is informed by a person in Court that an important witness
is a dakait. The informant, on being questioned by the pleader, gives
satisfactory reasons for his statement. This is a reasonable ground for asking
the witness whether he is a dakait.
(c) A witness, of whom nothing whatever is known, is asked at random
whether he is a dakait. There are here no reasonable grounds for the question.
(d) A witness, of whom nothing whatever is known, being questioned as to
his mode of life and mean of living, gives unsatisfactory answers. This may be
a reasonable ground for asking him if he is a dekait.
150. If the Court is of opinion that any such question
was asked without reasonable grounds, it may, if it was asked by any barrister.
pleader, vakil or attorney, report the circumstances of the case to the High
Court or other authority to which such barrister, pleader vakil or attorney is
subject in the exercise of his profession.
151. The Court may forbid any questions or inquiries
which it regards as indecent or scandalous, although such questions or
inquiries may have some bearing on the questions before the Court, unless the
relate to facts in issue, or to matters necessary to be known in order to
determine whether or not the facts in issue existed.
152. The Court shall forbid any question which appears
to it to be intended to insult or annoy, or which, though proper in itself
appears to the Court needlessly offensive in form.
153. When a witness has been asked and has answered any
question which is relevant to the inquiry only in so far as it tends to shake
his credit by injuring his character, no evidence shall be given to contradict
him; but, if he answers falsely, he may afterwards be charged with giving false
evidence.
Exception l.‑If a witness is asked whether he
has been previously convicted of any crime and denies it, evidence may be given
of his previous conviction.
Exception 2.‑If a witness is asked any question tending
to impeach his impartiality and answers it by denying the facts suggested, he
may be contradicted.
Illustration
(a) A claim against an underwriter is resisted on the ground of fraud.
The claimant is asked whether, in a former transaction, he had not made
a fraudulent claim. He denies it.
Evidence is offered to show that he did make such a claim.
The evidence is inadmissible.
(b) A witness is asked whether he was not dismissed
from a situation for dishonesty.
He denies it.
Evidence is offered to show that he was dismissed for dishonesty.
The evidence is not admissible.
(c) A affirms that on a certain day he saw B at
A is asked whether he himself was not on that day at
Evidence is offered to show that A was on that day at'
The evidence is admissible, not as contradicting A on a fact which
affects his credit, but as contradicting the alleged fact that B was seen on
the day in question in
In each of these cases the witness might, if his denial was false, be
charged with giving false evidence.
(d) A is asked whether his family has not had a bloodfeud with the
family of B against whom he gives evidence.
He denies it. He may be contradicted on the ground that the question
tends to impeach his impartiality.
154. The Court may, in its discretion, permit the
person who calls a witness to put any questions to him which might be put in
cross‑examination by the adverse party.
155. The credit of a witness maybe impeached in the
following ways by the adverse party, or, with the consent of the Court, by the
party who calls him :‑----
(1) by the evidence of persons who testify that they, from their
knowledge of the witness, believe him to be unworthy of credit ;
(2) by proof that the witness has been bribed, or has accepted the offer
of a bribe, or has received any other corrupt inducement to give his evidence ;
(3) by proof of former statements inconsistent with any part of his
evidence which is liable to be contradicted ;
(4) when a man is prosecuted for rape or an attempt to ravish, it may be
shown that the prosecutrix was of generally immoral character.
Explanation.‑A witness declaring another
witness to be unworthy of credit may not, upon his examination‑in‑chief,
give reasons for his belief, but he may be asked his reasons in cross‑examination,
and the answers which he gives cannot be contradicted, though, if they are
false, he may afterwards be charged with giving false evidence.
Illustration
(a) A sues B for the price of goods sold and delivered to B. C says that
A delivered the goods to B.
Evidence is offered to show
that, on a previous occasion, he said that he had not delivered the goods to B.
The evidence is admissible.
(b) A is indicted for the murder of B.
C says that B, when dying, declared that A had given B the wound of
which he died.
Evidence is offered to show that, on a previous occasion, C said that
the wound was not given by A or in his presence. The evidence is admissible.
156. When a witness whom it is intended to corroborate
gives evidence of any relevant fact, he may be questioned as to any other
circumstances which he observed at or near to the time or place at which such
relevant fact occurred, if the Court is of opinion that such circumstances, if
proved, would corroborate the testimony of the witness as to the relevant
fact which he testi fess.
Illustration
A, an accomplice, gives an account of a robbery in which he took part.
He describes various incidents unconnected with the robbery which occurred on
his way to and from the place where it was committed.
Independent evidence of these facts may be given in order to corroborate
his evidence as to the robbery itself.
157. In order to corroborate the testimony of a
witness, any former statement made by such witness relating to the same fact at
or about the time when the fact took place, or before any authority legallycompetent
to investigate the fact, may be proved.
158. Whenever any statement, relevant under section 32
or 33, is proved,all matters may be proved either in order to contradict of to
corroborate it, or in order to impeach or confirm the credit of the person by
whom it was made, which might have been proved if that person had been called
as a witness and had denied upon cross examination the truth of the matter
suggested.
159. A witness may, while under examination, refresh hi
memory by referring to any writing made by himself at the time of the
transaction concerning which he is questioned, or so soon afterwards that the
Court considers it likely that the transaction was at that time fresh in his
memory.
The witness may also refer to any such writing made by any other person,
and read by the witness within the time aforesaid, if when he read it he knew
it to be correct.
Whenever a witness may refresh his memory by reference to any document,
he may, with the permission of the Court, refer to a copy of such document:---
Provided the Court be satisfied that there is sufficient reason for the
non‑production of the original.
An expert may refresh his memory by reference to professional treatises.
160. A witness may also testify to facts mentioned in
any such document as is mentioned in section 159, although he has no specific
recollection of the facts themselves, if he is sure that the facts were
correctly recorded in the document.
Illustration
A book‑keeper may testify to facts recorded by him in books
regularly kept in the course of business, if he knows that the books were
correctly kept, although he has forgotten the particular transactions entered.
161. Any writing referred to under the provisions of
the two last preceding sections must be produced and shown to the adverse party
if he requires it : such party may, if he pleases, cross‑examine the
witness thereupon.
162. A witness summoned to produce a document shall, if
it is in his possession or power, bring it to Court, notwithstanding any objection
which there may be to its production or to its admissibility. The validity of
any such objection shall be decided on by the Court.
The Court, if it sees fit, may inspect the document, unless it refers to
matters of State, or take other evidence to enable it to determine on its
admissibility.
If for such a purpose it is necessary to cause any document to be
translated, the Court may, if it thinks fit, direct the translator to keep the
contents secret, unless the document is to be given in evidence : and, if the
interpreter disobeys such direction, he shall be held to have committed an
offence under section 166 of the Pakistan Penal Code.
163. When a party calls for a document which he has
given the other party notice to produce, and such document is produced and
inspected by the party calling for its production, he is bound to give it as
evidence if the party producing it requires him to do so.
164. When a party refuses to produce a document which
he has had notice to produce, he cannot afterwards use the document as evidence
without the consent of the other party or the order of the Court.
Illustration
A sues B on an agreement and gives B notice to produce it. At the trial
A calls for the document and B refuses to produce it. A gives secondary evidence
of its contents. B seeks to produce the document itself to contradict the
secondary evidence given by A, or in order to show that the agreement is not
stamped. He cannot do so.
165. The Judge may, in order to discover or to obtain
proper proof of relevant facts, ask any question he pleases, in any form, at
any time, of any witness, or of the parties about any fact relevant or
irrelevant; and may order the production of any document or, thing : and
neither the parties nor their agents shall be entitled to make any objection to
any such question or order, nor, without the leave of the Court, to cross‑examine
any witness upon any answer given in reply to any such question;
Provided that the judgment must be based upon facts declared by this Act
to be relevant, and duly proved:---
Provided also that this section shall not authorise any Judge to compel
any witness to answer any question or to produce any document which such
witness would be entitled to refuse to answer or produce under sections 121 to
131, both inclusive, if the question were asked or the document were called for
by the adverse party; nor shall the Judge ask any question which it would be
improper for any other person to ask under section 148 or 149; nor shall he
dispense with primary evidence of any document, except in the cases
hereinbefore excepted.
166. In cases tried by jury or with assessors, the
jury or assessors may put any questions to the witnesses, through or by leave
of the Judge, which the Judge himself might put and which he considers proper.
CHAPTER XI
OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE
167. The improper admission or rejection of evidence shall not be ground
of itself for a new trial or reversal of any decision in any case, if it shall
appear to the Court before which such objection is raised that independently of
the evidence objected to and admitted, there was sufficient evidence to justify
the decision, or that, if the rejected evidence had been received, it ought not
to have varied the decision.
THE SCHEDULE
[Enactments Repealed.] Rep. By the Repealing Act, 1938 (I of 1938), S.2
and Sch.
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