Updated: Wednesday May 25, 2016/AlArbia'a Sha'ban 18, 1437/Budhavara Jyaistha 04, 1938, at 06:49:23 PM

The Qanun-e-Shahadat Order, 1984

[P.O. NO. 10 OF 1984]

[Gazette of Pakistan, Extraordinary, Part I,]

28th October, 1984, pp. 587-642]

No. F. 17 (2)/84-Pub. --- The following Order made by the President on the 30th Muharram-ul-Haram, 1405 (26th October, 1984), is hereby published for general information: ---

WHEREAS it is expedient to revise, amend and consolidate the law of evidence so as to bring it in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah;

NOW, THEREFORE, in pursuance of the Proclamation of the fifth day of July, 1977, and in exercise of all powers enabling him in that behalf, the President is pleased to make the following Order:---

Court Decisions

Latest Law Cases

 

Contention of husband that wife, while making claim for dowry articles, was required to prove the case in terms of the requirements of Qanun-Shahadat Order, 1984 was not only misconceived but was also besides the mandate of law as envisaged in S. 17(1) of the West Pakistan Family Courts Act, 1964---Section 17 of the West Pakistan Family Courts Act, 1964 was a special law and provisions of Qanun-e-Shahadat Order, 1984 were excluded through said section---Was not possible for any bride / wife in the society to keep the record of purchase receipts, prepare the list of dowry articles and obtain signatures from the husband’s side---Mothers start collecting, purchasing, and preserving articles for their daughters from when they start growing up and there was a tradition that the in-laws of any wife were extended esteem and respect and it was considered and insult to prepare the dowry list for the purpose of obtaining signatures from them---Constitutional petition was allowed, in circumstance. 2012 M L D 756

 

Evidence--Ocular testimony--Value of--Ocular testimony could not be thrown out merely because there was background of enmity with the convict--However test for accepting the same is that there are establishing circumstances regarding their presence at place of occurrence at the relevant time and whether they could have witnessed the occurrence and that they were in a position to identify the culprits and that the number of culprits described by them could be accepted as dependable. PLJ 2010 SC 849 = 2010 Law vision 481

1.                  Application

2.                  Competency of a witness

3.                  Extent

4.                  Family Matters

5.                  Industrial Relations

6.                  Interpretation

7.                  Modes of proof of f

8.                  Newspaper reporting

9.                  Qanun‑e‑Shahadat &Evidence Act

10.              Rent Procedings

1.         Application: -- The Qanun‑e‑Shahadat as its preamble will show, is designed to revise, amend ‑and consolidate the law of evidence so as to bring it in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and the provisions thereof shall have effect notwithstanding anything contained in any other law for the time being in force.  P L D 1994 Kar. 492 It is fully applicable in the case before the Tribunal and Authorities to proceedings under the Ordinance II of 1963.  1991 S C M R 643. It applies to all judicial and quasi-judicial proceedings. 1991 M L D 1631 But Principles of Islamic law of evidence, so long as they are not codified or adopted by Qanun‑e‑Shahadat, 1984 are not per se applicable and cannot be pressed into service. P L D 1995 Kar. 469 + P L D 1994 Lah. 452 The Qanun‑e‑Shahadat, 1984 was objectively totally different from the repealed Evidence Act. The object of the Oanun‑e‑Shahadat Order is evident from its preamble‑, which had never been the object of the repealed Evidence Act. With reference to the preamble, intention or object of introducing the said Order, as stated therein, was to bring the Law of Evidence in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. P L D 1995 Karachi 469

2.         Competency of a witness: -- All persons, no matter they are relatives or not, are competent to give evidence if-

(i)   they possess physical ability of understanding the questions put to them; and

(ii)  they give rational answers to these questions.

 If any witnesses are prevented from understanding the questions put to them or from giving rational answers due to tender years, extreme old age, disease whether of body or mind or another cause of same kind or due to lunacy (as per illustration in Article 3 of the Order) then he/she may not be treated to be a competent witness. Other than the physical ability pertains to moral qualities of a witness. It requires a witness to give evidence which should always be free from fear, favour, hatred, bias, love, lust, affection and enmity. Regarding this condition of competency third proviso to Article 3 of the Order makes it imperative for the Court to determine the competence of a witness in accordance with the qualification .prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. In case such witness is not forthcoming, the Court may take the evidence of witness who may be available.

 Although it was mentioned in the 3rd proviso to Article 3 of the Order 1984 that the Court shall determine the competence of a witness in accordance. with qualifications prescribed by the Injunctions of Islam as laid down in the Holy Our'an and Sunnah for a witness yet the details of such qualifications were avoided to be mentioned in the Order 1984. Perhaps it was presumed by the legislators that most of the Presiding Officers of the Court were well­conversant with the Holy Qur'an, and the Sunnah on the law ‑of evidence. So far as the Holy Qur'an is concerned no believer has any dispute on its universalism but this bitter reality cannot be denied that several books of Ahadith which are recognized by one sect are usually not accepted by other sects. Moreover, starvation of real scholars in the present age has increased the number of compilers who presented their books or booklet in accordance to, the views of any specific Imam. Such kind of compilation has done no service to humanity but has only strengthened sectarianism.

 So far as the Courts are concerned they are not supposed to follow any specific Imam, spiritual leader or religious sect, even in spite of their deep attachment with them. Judges belong to an elite of erudites who are expected to work as thinkers and in capacity of Judges of an Islamic State they are bound to judge which view of the Muslim scholars is closest to universalism because Islamic principles of justice are universal in their nature and sectarianism or parochialism do not have any scope in it. They are also expected to possess faculties of cogitation to harmonize conflicting views of scholars with the help of juristic deductions including Qisas.   

Evidence of a witness is for Justice to Allah (S:4: 135) or for Allah to Justice (S.5:8). Therefore, combined effect of the two verses of the Holy  Qur'an shows nothing except that evidence in its real sense is neither for favouring nor opposing any party but is to promote Justice for the sake of Allah Almighty. Therefore, at the time of giving evidence a witness should not hesitate to testimony even against his/her own interest against the interests of his/her close relatives because protection of interests of any party lies with Allah (S.4:135). As Justice is next to piety, therefore, arty person, no matter he/she is of airy faith, can be symbol of piety if Justice; is done by that person. Moreover, justice is not the fief of any nation, thereof, piety also cannot be the fief of any class of believers or athiests. Real Justice can only be done when witnesses give evidence based on truth. If the evidence of a witness reflects enmity, bias, love, lust ac. against or in favour of d person then such evidence is not admissible. It evidence of a witness to favour of a party is not objected by or no doubt is expressed about the evidence of that witness by the opposite­ party then such evidence be treated admissible provided the Judge of the Court is also satisfied that the evidence of that witness is free from partiality, favouritism and inducement etc. If the evidence of such person created some doubt in the minds of Common person about partiality or favouritism, then the same may not be treated admissible unless corroborated by other pieces of evidence. Same is the position of evidence of slaves or servants in favour of their masters, wives in favour of their husbands or children in favour of their parents and vice versa provided they are dependent upon the house‑holders. P L D 1995 Karachi 469

3.         Extent: -- Proceedings before Family Court-­provisions of Qanun‑e‑Shahadat, 1984 do not apply. .2002 C L C 1396 + 2001 Y L R 1544 AS Family Court Act has created Special Courts for family matters and for the decision of those matters. The provisions. of the Evidence Act (Qanun‑e‑Shahadat) generally are hot applicable to the cases being tried under the Family Courts Act. The intention of the Legislature, is that the Court has to regulate its proceedings through a special procedure laid down by the Act itself which makes the procedure easier and gives more room to the parties to settle their disputes amicably and the Courts cannot remain silent spectator, tied down by the technicalities of law and watch the deterioration of administration of justice. 1996 M L D 1997 Scheme of Family Courts makes it clear that the family disputes are to be decided quickly and without being burdened with strict technicalities of law and it is for that reason that the Qanun-e-Shahadat, 1984 has not been made applicable nor the technicalities applicable to the civil suits under Civil Procedure Code have been applied to the proceedings before the Family Courts-Only requirement under the law is that a proper procedure should be adopted by a Family Court to decide the matter pending before it expeditiously and after hearing both the parties.  1998 M L D 1890 Provisions of Qanun-e‑Shahadat, apply to rent proceeding under the Ordinance, except to the extent that stand excluded under Ss.19, 20 & 21 of Ordinance which is a special law and would prevail in so far as be inconsistent with the Qanun‑e‑Shahadat. 1990 M L D 1711

4.         Family Matters : -- Family Court decreed the suit for recovery of articles according to the list annexed with the plaint but did not determine the value, of the articles-­Validity-List contained particulars of each and every item of the dowery, therefore, the list could be executed to the extent of the articles specified therein-If evidence as regard the value of the articles was not available on record, no illegality was committed by the Family Court in not determining the value of the articles. 2002 C L C 1396 Provisions of Family Courts Act, 1964 aimed at expeditious disposal of disputes relating to marriage and family affairs between respective parties-Strict procedural provisions contained in Civil Procedure Code, 1908 and Qanun-e­-Shahadat, 1984, were dispensed with for achieving purpose of expeditious disposal of family disputes-Rigidity and technicalities of law were in fact relaxed to provide substantial justice to parties instead of technical and conventional justice. 1997 M L D 2151

Provisions of Code of Civil Procedure, 1908, and Qanun‑e‑Shahadat, 1984-Inapplicability-Object-By making the said provisions inapplicable to the proceedings before the Family Court the law maker intended to give greater freedom to Family Courts and release them from the cobweb of procedural technicalities embodied in Qanun‑e‑Shahadat, 1984 and C. P. C Where a matter or situation is not governed by express provision of the law or the rules framed thereunder, the Family Court is free to evolve its own procedure and pass any suitable order for expeditious and just decision of the case. 2001 Y L R 2415

5.         Industrial Relations : -- Applicability of Qanun‑e‑Shahadat, 1984-Procedure and powers of Labour Court-Labour Courts though having trappings of regular law Courts yet they had to function in an altogether different setting -Qanun‑e‑Shahadat was also not applicable in proceedings before Labour Court. 1993 P L C 374

6.         Interpretation : -- Interpretation of all Articles of Oanun‑e‑Shahadat, 1984, after its promulgation, must be done in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah instead of adopting old interpretations of the repealed Evidence Act, 1872 blindly.   P L D 1995 Karachi 469

7.         Modes of proof of facts: -- Qanun‑e‑Shahadat, 1984, is a Code complete in itself as to the mode of proof of facts by way of oral and documentary evidence. Oral evidence has to be of those who have themselves witnessed facts (inclusive of events, state of things and condition of mind etc.). If such were capable of being seen, heard them if susceptible to hearing or perceived them otherwise if the facts could be so perceived through the senses or have subscribed to or participated in relation to. The same. Hearsay is not evidence. Documents are to be proved through their authors or scribes or witnesses in whose presence such ware written or signed or as are acquainted with the writing or signatures of the author or through expert evidence or by comparison of signatures or upon admission etc. Therefore, production of documents through authors or scribes, albeit being the best, was oniy one of the methods of proof though it was always expected that best evidence in a case would be produced, failure giving rise, where relevant, to adverse inferences. At the same time, objections as to admissibility of documents were to be raised at the earliest and usually at the time such were exhibited and admitted m evidence. Failure to timely object of at the earliest opportunity, therefore, may foreclose such objections at a later stage of the proceedings. The rule is based on common sense and good policy. A prompt objection puts the adversary on due notice and would not result in denial of opportunity to the opposite number to satisfy the requirements of proof. A document admitted in evidence without objection and exhibited in terms of Order XIII, rule 4 is a proved document and its admissibility cannot, except for good reason, be questioned at a later stags.

However, objection to admissibility of a document even though not expressly take would not necessarily constitute admission either in totality or as to contents. Juice an objection may be inherent in a situation where relevant facts had been denied in the pleadings and were in issue or authorship not being disputed contents alone is questioned. Likewise, where a document was admitted, merely dispensing with formal proof and exhibited, the party admitting would not thereby ipso facio accept the truth of the contents and would be flee to 4 question the bait by way of cross‑examination of otherwise, which would not be within its entitlement if the document was admitted and marked on admission, without reservation, resulting in the contents not only being evidence b6ut also taken to be admitted. A document admitted in evidence, such as; a letter written by a witness, was no evidence of the facts therein stated and the only legitimate use to which the letter could be put would be to use it in cross‑examination for the purpose of discrediting the witness, if what he had stated was  -tent with his evidence. Similar is the position of contents of a telegram which per se are not evidence of the facts stated therein. There is a distinction also between proof of a document, upon its being exhibited and its authorship. Where the document was admitted subject to objection the position was self‑evident. Likewise, merely because a document has been admitted in evidence and exhibited such fact alone, whereupon the record source of the document is disputed, would not constitute proof of its execution by the purported executant. Thus it can safely be concluded that a document, on being exhibited without contest, was a proved document, for all purposes but that was so only when authorship was not in question in the case or was impliedly or expressly proved and the contents, not otherwise in dispute, prove themselves e.g. in a receipt or deed of Sale etc. At the same time, proof of a document was not the equivalent of its relevancy; the two were independent concepts. Likewise, admissibility of a document in evidence was not synonymous with its evidential value or vice versa. It is on the basis of the foregoing formulations that the documentary evidence in the suit is to be assessed.

Where correspondence had been admitted in evidence without objection from the defendants no question at any time was raised about such correspondence not it having been exchanged nor did the defendants deny their signatures on such exhibits as purported to bear them. Original and exhibited letters from the defendants were thus proved documents. Correspondingly, many of these letters referred and were even in response to the exhibited copies of the correspondence emanating from the plaintiffs. Such copies also had been exhibited without objection. In this state of the record, it must be found that the relevant exhibits in the correspondence were proved to have been authored by those who purported to have signed them and besides bare recitals in such correspondence, as distinguished from veracity thereof, also stand proved. However, whether the contents of these documents were proved as correct factually is another matter and shall have to be decided in totality and upon preponderance of evidence. 1992 C L C 2524 Agro Marketing Corporation Ltd. v. Pakistan PLD 1982 Lah. 20; Gopal Das v. Shri Thakurji, AIR 1943 PC 83; Shahzadi Begun v. Secretary of State 34 IA 194; L. Suraj Bhan v. Hafiz Abdul Khaliq AIR 1944 Lah. 1; Muhammad Yusaf v. Hafiz Abdul Khaliq AIR 1944 Lah. 9; Abdullah v. Abdul Karim PLD 1968 SC 140; Malik Din v. Muhammad Aslam PLD 1969 SC 136; Muhammad Hussain v. Ghulam Ali PLD 1977 Kar. 285; Karachi Municipal Corporation v. Ali Hussain 1982 CLC 93; Abdul Razzaq v. Fatima Bai 1981 CLC 1083; Madholal Sindhu v. Asian Assurance Co. Ltd. AIR 1954 Bom. 305; Lionel Edwards Ltd. v. State AIR 1967 Cal. 191; Judah v. Isolyne Shrojbashini Bose AIR 1945 PC 174; Kishwardas v, Deputy Settlement Commissioner. Mirpur Khas 1985 CLC 1385; Bengal Friends and Company v. Gour Benode Saha & Company PLD 1969,SC 477; Muhammad Yusuf Khan Khattak v. S.M. Ayub PLD 1973 SC 160; Deutsche Dampschiff Fahrats‑Gessells Chaft v. Central Insurance Co. Limited PLD 1975 Kar. 819; Muhammad Hussain v. Ghulam Ali PLD 1977 Kar. 285; Mst. Mehari v. Noor Bhari PLD 1978 Lah. 771; Abdullah v. Abdul Karim PLD 1968 SC 140; Ghulam Muhammad v. U.S. AID 1986 SCMR 907 and Muhammad Aslam v. Gulraj Begun 1989 SCMR 1 rel

8.         Newspaper reporting: -- Newspaper reporting devoid of personal knowledge of a reporter on the basis of information received by him will be a mere hearsay and is inadmissible in evidence. Qanun_,__Shahadat, 1984, nowhere envisages presumption as to the  enuineness of a newspaper or journal as was found under S.81 of the aepealed  Evidence Act, 1872 - Newspaper cannot be admitted in evidence as before without formal proof nor its contents shall stand proved unless testified by a witness. Sarup Singh v. Emperor 26 Cr.LJ 1925 and Halsbury's Laws of England, 4th Edn., Vol.17, p.158, para.223 rel.P L D 1993 Karachi 337

9.         Qanun‑e‑Shahadat &Evidence Act: -- The Qanun‑e‑Shahadat, 1984, except with few exceptions, and the repealed Evidence Act, 1872, .are subjectively the same but objectively they are poles apart. It is an admitted position that all, Articles of the Order 1984 are substantially and subjectively mere reproduction of all sections of the repealed Act with exceptions of Article 3, Articles 4 to 6 (with reference to Hudood), addition of Article 44 and addition of a proviso to Article 42 if ,compared with corresponding sections of the repealed Act. Similarly the term "Qanun-e-Shahadat" is only an Urdu or Arabic translation of English term "Law of Evidence". Thus, replacement of title "The Evidence Act, 1872" by a new title "The Qanun‑e‑Shahadat Order, 1984" was also subjectively the same. Yet Qanun‑e‑Shahadat, 1984 was objectively totally different from the repealed Evidence Act. The object of the Oanun‑e‑Shahadat Order is evident from its preamble‑, which had never been the object of the repealed Evidence Act. With reference to the preamble, intention or object of introducing the said Order, as stated therein, was to bring the Law of Evidence in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.  P L D 1995 Karachi 469

10.       Rent Procedings ­: -- Nature-Proceedings before Rent Controller with regard to fixation of fair rent of premises, being‑ quasi judicial in nature, all principles of Civil Procedure Code, 1908 and Evidence Act, 1872 (Qanun‑e‑Shahadat, 1984) could not be invoked, though general principles could be applied. 1997 C L C 205 Because Rent Controller and Appellate Authority would have powers of a Civil Court under Civil Procedure Code in respect of only matters stated in S.20 of Sindh Rented Premises Ordinance, 1979 and said Ordinance had also not placed any bar on application of Qanun‑e‑Shahadat, 1984 in appreciating evidence adduced by parties in rent matters - Rent Controller though was not a Court and limited provisions of Civil Procedure Code had been made applicable in the proceedings, but there was nothing in Sindh Rented Premises Ordinance, 1979 whereby application of provisions of Qanun‑e‑Shahadat could be restricted or limited as the Rent Controller was not a Court. P L D 1996 Karachi 225

Provisions of Qanun-e‑Shahadat, apply to rent proceeding under the Ordinance, except to the extent that stand excluded under Ss.19, 20 & 21 of Ordinance which is a special law and would prevail in so far as be inconsistent with the Qanun‑e‑Shahadat. 1990 M L D 1711

PART I

RELEVANCY OF FACTS

CHAPTER I

PRELIMINARY

1. Short title, extent and commencement. --- (1) This Order may be called the Qanun-e-Shahadat, 1984.

(2) It extends to the whole of Pakistan and applies to all judicial proceedings in or before any Court, including a Court martial, a Tribunal or other authority exercising judicial or quasi-judicial powers or jurisdiction, but does not apply to proceedings before an arbitrator.

(3) It shall come into force a once.

COMMENTARY

Provisions of Qanun-e-Shahadat apply to proceedings before any Court, Court martial, a Tribunal or other authority exercising judicial or quasi-judicial powers. Qanun-e-Shahadat, however, does not apply to proceedings before an arbitrator.

Deputy Commissioner and Tribunal under Criminal Law (Special Provisions) Ordinance (II of 1968) are “Tribunals” within meaning of Art. I. Proceedings before them are governed by provisions of Order/1984.

Court Decisions

Affidavit: -- Court/Tribunal had power to determine the controversies on the basis of affidavits but such document must satisfy the requirement contained in O.XIX, Rr.l & 2 of C.P.C.-­Controverted disputed affidavit was neither evidence nor a material within the terms of Art. Qanun-e-Shahadat, 1984-Such affidavit did not possess any such attribute to warrant conclusion that re-counting was necessary. 1999 Y L R 355 

Applicability ­: -- Proceedings before Wafaqi Mohtasib are not judicial in nature and provisions of C.P.C. and Qanun-e-Shahadat, 1984, are not applicable -Mohtasib can adopt such procedure as he considers appropriate for investigation and can make such inquiries as he thinks fit under Art. 10(5) of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983-­Technicalities and niceties of the civil litigation in judicial proceedings, are not attracted to the proceedings before Wafaqi Mohtasib because the institution of Wafaqi Mohtasib has been established to provide speedy and expeditious relief to the people outside the judicial hierarchy in order to avoid the proverbial delay in the dispensation of justice. P L D 2001

Family Court : -- Qanun‑e Shahdat, 1984, after its promulgation would be applicable to proceedings before Tribunal/Family Court-Evidence Act, 1872, however, was not applicable before Tribunal/Family Court-According to Qanun‑e‑Shahadat, 1984, in case of conflict between oral and written evidence, latter would be preferred-Where written evidence on record particularly written undertaking by father of children stated that he would pay specified amount as maintenance to minor children, had not been taken note of by Courts below, Courts would be deemed to have gone outside jurisdiction and orders passed by them would not be valid and in accordance with law and were liable to be quashed.  P L D 1997 Karachi 399

Provisions of Qanun‑e‑Shahadat, 1984 and Civil Procedure Code, 1908 except Ss. 10 & 11 thereof, do not apply to proceedings before Family Court. 1995 C L C 731

Scope : -- Section 70 of the Trade Marks Act, 1940 provides that the Registrar shall have all powers of a Civil Court for the purposes of receiving evidence, administering oaths and forcing attendance of witnesses, compelling discovery and production of documents and issuing commission for examination of witnesses and that the evidence would be given by affidavits. The Registrar is further authorised to take oral evidence in lieu of affidavit or in addition to such evidence by further affidavit. Neither any provision as to the conduct of a hearing has been prescribed in the Revised Trade Marks Rules, 1963, nor any procedure which is to be adopted either by the Registrar or by the Tribunal for hearing of retification application. However, section 70(b) of Act, 1940, provides that the evidence shall be given by affidavits. Filing of counter affidavit by the respondent, at the most can be treated at par with the written statement. Unless and until the Tribunal, or as the case may be, the Registrar directs the parties for filing their evidence through affidavit, any affidavit, counter‑affidavit or rejoinder could not be treated evidence. Before treating any affidavit as a piece of evidence, it is the requirement of law that a party should be made aware that such affidavit Was their full and final evidence. Similarly, the other side is also entitled to cross‑examine such deponent who has filed affidavit against his interest. 1997 C L C 160

2. Interpretation. --- (1) In this Order, unless there is anything repugnant in the subject or context,---

(a) “Court” includes all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence;

(b) “document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter;

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.

(c) “evidence” includes:---

(i) 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; and

(ii) all documents produced for the inspection of the Court; such documents are called documentary evidence;

(d) “fact” includes---

(i) anything, state of things, or relation of things capable of being perceived by the senses; and

(ii) any mental condition of which any person is conscious.

(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.

(2) 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 Order relating to the relevancy of facts.

(3) The expression “facts in issue” 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 procedure, any Court records on issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.

Illustrations

A is accused of the murder of B.

At his trial the following facts may be in issue:--

that A caused B’s death;

that A had intended to cause B’s death;

that A had received grave sudden provocation from B;

that A, at the time of doing the act which caused B’s death, was by reason of unsoundness of mind, incapable of knowing its nature.

(4) 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.

(5) A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or 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.

(6) A fact is said not to be proved when it is neither proved nor disproved.

(7) Whenever it is provided by this order 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.

(8) Whenever it is directed by this Order that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

(9) When one fact is declared by this Order 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.

COMMENTARY

Facts alleged by prosecution are to be proved by evidence on oath in Court. Evidence provides a basis for proof of such facts which consequently result in conviction of accused.

Evidence, Agreement to sell. Plaintiff is to succeed on the basis of his own evidence and not on the basis of weakness of the evidence of the defence. Civil matter is to be decided on the basis of preponderance of evidence and the Court is to consider the entire evidence on record, whether it is of the plaintiff or of both plaintiff and defendant, in order to arrive at correct conclusion. Once the evidence is brought on record, the question of burden of proof loses its significance.

Dying declaration. Dying declaration having not been subjected to cross-examination, needed to be scrutinized closely and could be accepted only if it received satisfactory corroboration from the physical circumstances of the case.

Proof. Standard of proof in civil cases. Rules of evidence for civil and criminal cases, are, in general, identical but some provisions in Qanun-e-Shahadat are peculiar to criminal cases while others are peculiar to civil cases. In civil cases all that was necessary to insist upon was that proof adduced in support of a fact was such that should make a prudent man to act upon the supposition that it in fact existed. Whether alleged fact was either a fact in issue or a relevant fact, Court could draw no inference from its existence till it believed it to exists; and belief of Court in the existence of a given fact ought to proceed upon grounds, altogether independent of the relation of the fact to the object and nature of proceedings in which its existence was to be determined.

Revision. Appellate Court applying its mind to real controversy between parties and the admission of main witness. Appraisal of evidence by Appellate Court was strictly in accordance with rules of evidence. No misreading or non-reading of material evidence which might have affected judgment of Appellate Court was pointed out. No exception could be taken to concurrent findings of Courts below on specific issues. Findings of Courts below were maintained in circumstances.

Evidence, appreciation of. Mere deposition of a close relative (uncle) of a party in favour of its rival would not by itself be a ground to attach absolute evidentiary value to his testimony particularly when such witness had admitted to be on inimical terms with his defendant relative. To place implicit reliance on the evidence of such a highly interested witness was not warranted.

Proof. Probative force of individual material in establishing the general truth. Essentials. Proof must rest on evidence. Conclusion should not be based on mere conjectures and surmises.

Evidence, appreciation of. Witnesses produced in evidence. Testimony of such witnesses was not shaken in cross-examination. Defendant’s plea, that witnesses produced by plaintiff in proof of his claim for damages were not “independent” but “interested” was fallacious, for no enmity or mala fides, whatsoever, had been alleged; the fact that such witnesses were in similar profession as that of plaintiff would not mean that statements given on oath by them were false, especially those which remained unshaken during cross-examination.1

General statement of a witness. Evidentiary value. Statement of a witness which was general in nature would be hardly of any worth in proof of a specific issue.2

Educational institution. Unfair means allegedly used in examination. Rustication of examinee for three years. Punishment by way of rustication challenged before Civil Court which dismissed examinee’s suit. Examinee’s appeal against decision of trial Court met the same fate. Validity. Scrutiny of evidence showed that reliance had mainly been placed by examinee on certificate of innocence issued by Deputy Superintendent and one invigilator of the examination centre to the effect that no unfair means whatsoever had been used by examinee. Such officials of the examination centre were not, however, produced in evidence in support of “certificate of innocence”. Certificates issued by such officials carried title weight for they were not produced as witnesses to be subjected to cross-examination because it could not be inferred otherwise as to what extent contents of their certificate could be relied upon. “Certificate of innocence” thus, could not be considered in evidence in circumstances.3

Court Decisions

Latest Law Cases

Evidence of interested witness--Where the evidence of interested witnesses was not plausible, improbable, un-reasonable and there were inherent defects in their evidence, the case did not fall within any exception and the statement of the interested witnesses could not be accepted without any corroboration. PLJ 2011 SC 468 = 2011 Law vision 566      

 

Evidentiary value of interested witness--Where the evidence of the investigation officer and the positive chemical analysis report supported the statement of the interested witness, mere relationship, in absence of any grudge was insufficient to dislodge the statement of the witness--Petition was dismissed. PLJ 2011 SC 431 = 2011 Law vision 561

 

Examination-in-chief, cross-examination and re-examination--Portion of the evidence which appeared in cross-examination was not put to the accused in his statement u/S. 342, Cr.P.C. enabling him to explain the circumstances particularly when the same was abandoned by him-Held: If any piece of evidence is not put to the accused in his statement u/S. 342, Cr.P.C. then the same cannot be used against him for his conviction--Courts below without realizing the legal position not only used the portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained. PLJ 2011 SC 348 = 2011 Law vision 544 

       

Interested witness--Evidentiary value of--Interested witness is one who has a motive to falsely implicate an accused or has a motive to false implicate an accused or has some rancour or enmity which was never alleged seriously--Held: There was no rule of law that statement of interested witness could not be taken into consideration without corroboration and even uncorroborated version could be relied upon if supported by surrounding circumstances. PLJ 2011 SC 327 = 2011 Law vision 539

 

Interested witness--Evidentiary value of--Where the interested witnesses were also chance witnesses and should normally had not been present at the place of occurrence, their statements could not be relied upon. PLJ 2011 SC 313 = 2011 Law vision 538           

 

Mere relationship of a witness with deceased--Effect of--Mere relationship of a witness with deceased not sufficient to discard their evidence until defence could point out any enmity or ill-will of the said witnesses with the accused. PLJ 2011 Cr.C. (Lahore) 340 (DB) = 2011 Law vision 59

 

Conviction and sentence--Challenge to--Benefit of doubt--Main point was determined by Court is whether the story set out by prosecution is probable or whether the prosecution has proved its case against the appellants without any shadow of doubt--Art. 2(4) of Qanun-e-Shahadat Order, 1984 contemplates how a fact is proved--A prudent man in law is neither a genuis nor a goof but has the same meanings as consumer in economic and common man in politics--Therefore, in the facts and circumstances of the case, the Court is to see whether a prudent man would believe the story put forth by the prosecution that the complainant, on receipt of the telephonic call, which was exclusively for his deceased brother would accompany him in the way and then will not stay in the house of his real brother and would, rather go to the house of his `Behnoi' and would come to the house of the deceased early in the morning to witness the occurrence at the time when the deceased was being electrocuted by his wife, whereas, one of her co-accused was pressing the threat of the deceased and the other was holding his legs, the answer of the prudent man would certainly be in the negative--Analysis of evidence produced by prosecution that prosecution case was not free from doubts and the story was highly improbable--Presence of the eye-witnesses at the place of occurrence was highly doubtful--Prosecution has failed to prove its case against the appellants beyond any shadow of doubt to sustain their conviction--Appeals allowed. (Lahore) 62 (DB) = 2011 Law vision 6    

 

Ocular evidence--Minor variations--Administration of justice--Where there was no motive to falsely involve the appellant with the commission of the offence nothing in their evidence suggested that they were inimical towards the appellant then mere interse relationship would not be a reason to discard their evidence. PLJ 2010 SC 1117 = 2010 Law vision 518      

 

Administration of Justice--Failure to disclose date of death--Such lapse of a totally illiterate person who was deposing after a lapse of more than 35 years of the death should be considered natural and could not be considered a sufficient cause to be fatal to their testimony. PLJ 2010 Peshawar 70 = 2010 Law vision 402

 

Facts corroborated by documentary evidence could not be rebutted. PLJ 2010 Lahore 607 = 2010 Law vision 360

Convictions based upon circumstantial evidence should be recorded with due care and caution. PLJ 2010 FSC 268 = 2010 Law vision 206

 

  1. Admission
  2. Agreement
  3. Agreement to sell
  4. Appraisal of  Evidence
  5. Appreciation of evidence
  6. Certificate of innocence
  7. Circumstantial evidence
  8. Confession
  9. Contradictory statement
  10. Corroboration
  11. Court
  12. Court-Scope of
  13. Cross‑examination
  14. Custom
  15. Custom of trade
  16. Date Of Birth
  17. Decision With out Evidance 
  18. Defection of a Member
  19. Doccument
  20. Doccumentry Evidance
  21. Evidence
  22. Evidence of close family members 
  23. Evidence of witnesses-Veracity
  24. Evidentiary value of audio cassette 
  25. Gift
  26. Hostile witness
  27. Identification
  28. Independent Witnesses
  29. Legitimacy
  30. Marriage-Proof
  31. “Material document" and "material evidence”
  32. Minor discrepancy
  33. Muslim Family Laws Ordinance 
  34. New plea
  35. News item-Admissiblity of
  36. Nuisance
  37. Oath
  38. Onus to prove
  39. Pleadings
  40. Proof
  41. Proved fact
  42. Quantum of proof
  43. Question of fact
  44. Rent Restriction Ordinance 
  45. Res gestae
  46. Scribe
  47. Signatures on blank documents
  48. Signing and verification
  49. Solitary statement
  50. Standard of proof
  51. Termination of contract
  52. Unchallenged statement 
  53. Urban Rent Restriction Ordinance
  54. Witnesses

 

1.                  Admission : -- Admission in Pleadings like written statement is not evidence in the case. 1993CLC234

2.                  Agreement : -- Perusal of evidence clearly indicated that Trial Court has rightly found that agreement to sell had not been established or proved-Peculiar feature of agreement to sell was that it was recited therein that such agreement was being executed and consideration was being paid in presence of marginal witnesses; such document, however, had not been attested by any one-Plaintiff had offered no explanation as to why document in question had not been witnessed by any one-Non‑attestation of such important document by witnesses ‑ was highly unusual particularly when same contained recital relating to payment of huge amount-Such omission was nit only significant but was also destructive of case of plaintiff particularly with regard to payment of specified amount as consideration which according to agreement was made in presence of marginal witnesses, though agreement itself showed that there were no marginal witnesses at all-Agreement to sell was not proved in circumstances. 1997 C L C 1580

3.                  Agreement to sell : -- Solitary marginal witness produced to prove execution of document (agreement to sell) contradicting plaintiff on material particulars viz. venue of execution of receipt, payment of price and about the scribe of the receipt-Execution of receipt about payment of consideration at the time and place shown therein and the payment of consideration evidenced by such receipt was not proved beyond doubt-Agreement to sell was not proved in circumstances. 1993 M L D 2118

­Quantum of proof-Best evidence available with plaintiff was scribe who had written agreement in question, but had not been examined-Stamp vendor who had issued stamp had also not been examined by plaintiff-Defendant having denied execution of agreement of sale, it was necessary for plaintiff to have requested Trial Court to get report of Finger Print Expert as to whether thumb ­impression so affixed on said agreement belonged to defendant or not-­Agreement to sell was not proved in circumstances. P L D 1997 Karachi 589

4.                  Appraisal of  Evidence : -- Appellate Court applying its mind to real controversy between parties and the admission of main witness-Appraisal of evidence by Appellate Court was strictly in accordance with rules of evidence-No misreading or non‑reading of material evidence which might have affected judgment of Appellate Court was pointed out-No exception could be taken to concurrent findings of Courts below on specific issues-Findings of Courts below were maintained in circumstances. P L D 1994 Peshawar 10

5.                  Appreciation of evidence : -- Allegation of Zina-Medical evidence relating to male accused was of no use because it simply indicated that he was capable of performing sexual intercourse and he being a married man himself had also not denied his potency-Similarly opinion of the Lady Doctor concerning lady accused that she was used to sexual intercourse was of no help as she being a married woman lived with her deceased husband prior to the occurrence-Deposition of a prosecution witness that he‑ had only seen both the accused going together in a car also did not advance the prosecution case-Involvement of accused in the commission of Zina could not be conclusively inferred from any piece of evidence available on record-Admission of lady accused in her confessional statement to have enjoyed illicit relations with her co‑accused could not corroborate the confessional statement of the male accused, because as per Art. 43 of the Qanun‑e‑Shahadat, 1984, though a confession made by one accused can be taken into consideration against another, yet it being not a substantive piece of evidence within the purview of ‑Arts.2 & 3 of the Qanun‑e‑Shahadat, 1984, could not take the place of or be substituted for evidence-Even otherwise, confession of both the accused being inconsistent and discrepant were of no use for the purpose of corroboration-Prosecution had failed to produce confirmatory evidence-Accused were acquitted in circumstances. 2001 M L D 1939

Although documents not formally admitted in evidence and available on court’s record or elsewhere may, for the purpose of elucidation of certain facts, be looked into, yet the same by no stretch of imagination can be termed or regarded as “evidence” unless proved and exhibited at the trial in accordance with law—Since documents do not prove themselves and truth of the contents of the documents cannot be proved by merely producing the same for inspection of the court within the purview of Art. 2(c)(ii) of the Qanun-e-Shahadat, 1984, the document upon which a party relies must at first be placed before the court and then be got proved by calling the witness or witnesses. 2004 P Cr. L J 371

Plaintiff had failed to establish that alleged loan of specified amount was disbursed/received/taken by defendant from plaintiff inasmuch as voucher and reverse of cheque did not bear signatures of defendant-Ex‑employee of plaintiff who was examined by defendant, deposed to the effect that specified cheque was given to him by plaintiff for encashment from Bank and after receiving money from Bank same was paid/handed over by him to cashier of plaintiff-Plaintiff, thus, had failed to establish payment of specified amount as loan or otherwise to defendant-Plaintiff, had failed to counter the assertion of defendant in respect of non‑taking of loan by him from plaintiff-Plaintiff's claim relating to taking of another loan by defendant from it to pay his income‑tax due was also not established-Neither any receipt/payment voucher nor any other documentary evidence of any nature whatsoever, had been produced by plaintiff to substantiate its claim in respect of alleged second loan to have been taken by defendant for payment of his income‑tax dues-Plaintiffs, thus, had failed to prove any of the loans to have been taken by defendant from it and its entitlement to receive back the same. 1998 C L C 1580Defendant having denied execution of agreement of sale, it was necessary for plaintiff to have requested Trial Court to get report of Finger Print Expert as to whether thumb ­impression so affixed on said agreement belonged to defendant or not-­Agreement to sell was not proved in circumstances. P L D 1997 Karachi 589

6.                  Certificate of innocence : -- Punishment by way of rustication challenged before Civil Court which dismissed examinee's suit -­Examinee's appeal against decision of Trial Court met the same fate-­Validity-Scrutiny of evidence showed that  reliance had mainly been placed by examinee on certificate of innocence issued by Deputy Superintendent and one invigilator of the examination centre to the effect‑ that no unfair means whatsoever had been used by examinee -Such officials of the examination centre were not, however, produced in evidence in support of "certificate of innocence"-Certificates issued by such officials carried little weight for they were not produced as witnesses to be subjected to cross‑examination because it could not be inferred otherwise as to what extent contents of their certificate could be relied upon-"Certificate of innocence" thus, could not be considered in evidence in circumstances. P L D 1995 Quetta 50

7.                  Circumstantial evidence : -- Proved circumstances must be incompatible with any reasonable hypothsis of the innocence of the accused-No link in the chain should be broken and circumstances should be such as could not be explained away on any hypothesis other than the guilt of the accused. 1992 S C M R 1047

Circumstantial evidence can support case as much as direct evidence if it is substantial. P L D 1989 Peshawar 86

8.                  Confession : -- Admissibility or relevancy of a confession, though basically a question of law, depends upon the facts of, each case-Confession would be inadmissible if its making appears to the Court to have been caused by any inducement, threat or promise, or is made before the police officer, or at the time when the accused was in the custody of the Police Officer as provided by Arts.37, 38 & 39 of the Qanun‑e‑Shahadat, 1984, and evidently it cannot be irrelevant because the word "confession" itself denotes that it is the voluntary statement made by the person charged with the commission of the crime, it is, however, a different matter as to what is the evidentiary or intrinsic value of the confession. 

 Confession alone cannot form the basis of a conviction unless it finds strong corroboration from independent and reliable evidence in material particulars. 2001 M L D 1939    

­Confessional statement of co‑accused, retracted or otherwise, at the most may be used in support of other evidence and proper course, therefore, is to first carefully examine the entire evidence by excluding the confession and if on judicious and analytical examination of evidence the Court is of the opinion that conviction can be recorded on the basis of such evidence alone, then the confession may not be ‑considered, otherwise it may be called in aid to strengthen the belief that the accused was guilty of the offence. 2001 M L D 1939

9.                  Contradictory statement : -- Contradictory statement of witness, does not inspire confidence and cannot be believed on a question of fact. 1988 C L C 525

10.              Corroboration Statement of witness corroborating material assertions in plaint not challenged in cross‑examination-Assertions in plaint would be deemed to be corroborated by evidence of such witness.

11.              Court ­: -- Except arbitrators, all forums legally empowered to record evidence have been defined under Art. 2(a) of Qanun‑e‑Shahadat Order, 1984, to be "Courts".2000 Y L R 2724

Suit for recovery of specified amount-Quantum of proof-Plaintiff had failed to establish that alleged loan of specified amount was disbursed/received/taken by defendant from plaintiff inasmuch as voucher and reverse of cheque did not bear signatures of defendant-Ex‑employee of plaintiff who was examined by defendant, deposed to the effect that specified cheque was given to him by plaintiff for encashment from Bank and after receiving money from Bank same was paid/handed over by him to cashier of plaintiff-Plaintiff, thus, had failed to establish payment of specified amount as loan or otherwise to defendant-Plaintiff, had failed to counter the assertion of defendant in respect of non‑taking of loan by him from plaintiff-Plaintiff's claim relating to taking of another loan by defendant from it to pay his income‑tax due was also not established-Neither any receipt/payment voucher nor any other documentary evidence of any nature whatsoever, had been produced by plaintiff to substantiate its claim in respect of alleged second loan to have been taken by defendant for payment of his income‑tax dues-Plaintiffs, thus, had failed to prove any of the loans to have been taken by defendant from it and its entitlement to receive back the same. 1998 C L C 1580

12.              Court-Scope of ­: -- Except arbitrators, all forums legally empowered to record evidence have been defined under Art. 2(a) of Qanun‑e‑Shahadat Order, 1984, to be "Courts".2000 Y L R 2724

13.              Cross‑examination : -- Presumption-Witness not cross‑examined on a material part of his evidence-Effect-When a witness was not cross‑examined on a vital point in issue, a valid presumption could be drawn about the truth of the matter not questioned. 1996 M L D 521

14.              Custom : -- Supply of ornaments to defendants on credit as per custom of trade in vogue in the market - Plaintiff failed to establish that any custom of trade was in vogue in market whereby orders for supply of ornaments were placed orally or that same were supplied without any writing or contract in that behalf - Plaintiff also failed to establish by any oral evidence as to supply of Specified  ornaments to defendants - Finding recorded by Trial Court was based on correct and true

Inheritance-Appeal to Supreme Court-Appraisal of evidence on question of fact-Courts below while recording finding of fact on controversial question of rule of inheritance had committed legal errors relating to admission and appraisement of evidence-Evidence of plaintiffs was marked by inconsistence and evasiveness coupled with ignorance of material facts-Plaintiffs' witnesses did not know from whom widow had inherited property, and what was its nature-Defendants on the other hand produced a very consistent and creditworthy evidence of a witness who was the resident of same village to which parties belonged; that witness stated about the pedigree of parties and about the custom under which widow had inherited limited estate-Such witness was not put any question with regard to his knowledge or creditworthiness on issues involved -Fard Haqiat prepared on basis of record also showed that female was holding property as widow of deceased-Facts that widow had mortgaged property and that after Partition she got it redeemed would not militate against a widow being a limited estate holder-­Judgments of all the Courts below holding widow to be full owner was set aside by Supreme Court and plaintiffs' suit was dismissed-Widow was deemed to be limited estate holder and devolution of her property as such was directed. 1994 S C M R 402

15.              Custom of trade : -- Supply of ornaments to defendants on credit as per custom of trade in vogue in the market - Plaintiff failed to establish that any custom of trade was in vogue in market whereby orders for supply of ornaments were placed orally or that same were supplied without any writing or contract in that behalf - Plaintiff also failed to establish by any oral evidence as to supply of Specified  ornaments to defendants - Finding recorded by Trial Court was based on correct and true

16.              Date Of Birth : -- Dispute relating to date of birth of civil servant  --Accountant‑General was required to maintain service record of Gazetted Officers-Plaintiff's plea relating to wrong entry of date of birth in his record was borne out and supported by the record of the University and the record kept by Accountant‑General-Appellate Court while setting aside finding of Trial Court had acted on surmises and conjectures rather than evidence on record-Rejection of documentary evidence was not warranted-Plaintiff was entitled on basis of record to have his date of birth modified in accordance with such record. 1995 P L C (C.S.) 1041

17.              Decision With out Evidance : -- No effort was made by Court to allow parties to lead evidence in support of their respective claims/pleas-Findings of Trial Court without supporting evidence being arbitrary and palpably unjust were, legally unsustainable. 1996 M L D 818

18.              Defection of a Member : -- Allegation of defection by Members of Provincial Assembly-Proceedings under S.8-B, Political Parties Act, 1962, being of quasi-criminal nature, elected representatives would be deemed to have not defected unless proved to the hilt that they had in fact defected-Standard for the type of circumstantial evidence that would be required for disqualifying an elected representative on the charge of defection-Where the petitioner had not been able to establish beyond any reasonable doubt that the members had defected from their political party, the members had not become disqualified from being member of the Provincial Assembly.

 If a person is elected on a party ticket but he sells his political support for money or for promise of ministership or public office particularly at the crucial stage of vote of "no-confidence", then that member would be certainly guilty of defection.The first and foremost question is the nature of evidence required for proof of such defection which would in turn depend upon nature of the liability. 

            The proceedings under section 8-B of the Act are of quasi-criminal nature. If it be so, then' every elected representative would be deemed to have not defected unless proved to the hilt that he had in fact defected. Allegations, however grave, are allegations and cannot take the place of proof or be admitted in evidence to reflect the correctness of the facts alleged therein unless they are proved in accordance with law. 

Penal statute tending to deprive valuable right of franchise must be strictly construed and in case of doubt the benefit must go to the person against whom such finding is sought.

There was no scope for reliance on adverse newspaper reports. 

The circumstantial evidence required for disqualification on the charge of defection should be such that facts proved must be incompatible with the innocence of the elected representatives and incapable of explanation upon any other reasonable hypothesis than that of their guilt. Accordingly where the circumstances are not inconsistent with the innocence of the elected representatives they cannot be disqualified. 

Boycotting meeting of the Parliamentary Party by itself would not be enough of a reason to charge the M.PA. for defection. 

Refutation of the charges of defection appearing in the press may be a lapse, but it is not that serious that it can lead to the only irresistible inference of defection. 

Non-participation of the members in the session of the Assembly would not per se reflect their conduct of defecting their party. 

Participation in the Iftar Party hosted by their colleague, wherein the leader of the opposition had participated was not indicative of desertion of one's party. 

 Travelling of member by the flights whereby the opposition had travelled to and from Islamabad could not be taken as an act of defection. An expelled member could legitimately travel by a flight by which the other M.P.As. belonging to opposition had travelled and it would not militate against him. 

When the petitioner had not been able to establish beyond any reasonable doubt that the members had defected from their political party, the members had not become disqualified from being members of the Provincial Assembly. 1994 M L D 1569  

19.              Document: --Purpose and intent of document in question, was doubtful; such document from its contents was neither agreement to sell nor sale-deed-Document in question, did not show whether it was registered as an agreement /acknowledgement or sale-deed-Sub-Registrar had simply recorded that deed was being registered on the orders of Registrar-Document in question, thus, did not convey any meaning nor did it confer title of ownership upon petitioner.  P L D 1994 Peshawar 58

Document tendered in evidence and exhibited at the trial without any objection-Effect-Where no objection had been raised at the time of tendering and exhibiting of evidence before the trial Court or even before the lower appellate forum, no objection could be raised in second appeal. 1990 M L D 219

Purpose and intent of document in question, was doubtful; such document from its contents was neither agreement to sell nor sale-deed-Document in question, did not show whether it was registered as an agreement /acknowledgement or sale-deed-Sub-Registrar had simply recorded that deed was being registered on the orders of Registrar-Document in question, thus, did not convey any meaning nor did it confer title of ownership upon petitioner. P L D 1994 Peshawar 58

Document tendered in evidence and exhibited at the trial without any objection-Effect-Where no objection had been raised at the time of tendering and exhibiting of evidence before the trial Court or even before the lower appellate forum, no objection could be raised in second appeal. 1990 M L D 219  

20.              Doccumentry Evidance: -- Document which was not placed before Trial Court and was not considered by that Court or First Appellate Court could not be considered by High Court at revisional stage. 1998 C L C 382

 

21.              Evidence: -- Where evidence of witness was natural, straightforward and disinterested same could not be lightly brushed aside particularly when he had successfully withstood the test of cross‑examination. 1997 C L C 1510

Suit for possession and compensation relating to property in question-Plaintiff's evidence did not show his entitlement to property in question or that he was ever in occupation of same-Witnesses produced by plaintiff belied his contention that he was ever in possession of property-Plaintiff, thus, failed to prove either his claim to ownership or his entitlement on basis of possession-Plaintiff was not found entitled to claim property in question.

Mere deposition of a close relative (uncle) of a party in favour of its rival would not by itself be a ground to attach absolute evidentiary value to his testimony particularly, when such witness had admitted to be on inimical terms with his defendant relative-To place implicit reliance on the evidence of such a highly interested witness was not warranted. 1994 C L C 1.

Agreement to sell-Plaintiff is to succeed on the basis of his own evidence and not on the basis of weakness of the evidence of the defence-Civil matter is to be decided on the basis of proponderance of evidence and the Court is to consider the entire evidence on record, whether it is of the plaintiff or of both plaintiff and defendant, in order to arrive at correct conclusion-Once the evidence is brought on record, the question of burden of proof loses its significance. 1993 S C M R 356

Evidence of interested witnesses and those inimical to party against whom they had deposed, could not be believed-1993 C L C 2448

Circumstantial evidence‑‑Circumstantial evidence can support case as much as direct evidence if it is substantial. P L D 1989 Pesh. 86

 Plaintiff had failed to establish that alleged loan of specified amount was disbursed/received/taken by defendant from plaintiff inasmuch as voucher and reverse of cheque did not bear signatures of defendant-Ex‑employee of plaintiff who was examined by defendant, deposed to the effect that specified cheque was given to him by plaintiff for encashment from Bank and after receiving money from Bank same was paid/handed over by him to cashier of plaintiff-Plaintiff, thus, had failed to establish payment of specified amount as loan or otherwise to defendant-Plaintiff, had failed to counter the assertion of defendant in respect of non‑taking of loan by him from plaintiff-Plaintiff's claim relating to taking of another loan by defendant from it to pay his income‑tax due was also not established-Neither any receipt/payment voucher nor any other documentary evidence of any nature whatsoever, had been produced by plaintiff to substantiate its claim in respect of alleged second loan to have been taken by defendant for payment of his income‑tax dues-Plaintiffs, thus, had failed to prove any of the loans to have been taken by defendant from it and its entitlement to receive back the same. 1998 C L C 1580

22.              Evidence of close family members: -- Evidence of close family members-Effect-Evidence of close family members in a family suit was best guide as to how spouses were pulling on and was very relevant. 1997 C L C 1317

23.              Evidence of witnesses-Veracity : -- Nothing was brought on record to detract from the veracity of witnesses produced by landowners-Authority had failed to produce any evidence in rebuttal-Veracity of witnesses produced by landowners thus, could not be doubted, therefore, their evidence on question of fact could not be doubted and decree granted on basis thereof was correct and unimpeachable. 1997 M L D 2568

24.              Evidentiary value of audio cassette: -- Statement contained in audio cassette - Such statement would be admissible in terms of Art.164, Qanun‑e‑Shahadat, 1984-­Where plaintiff had succeeded in proving his case through reliable evidence, statement recorded in audio cassette would be additional circumstance to lend support to his assertion. P L D 1998 Peshawar 52

25.              Gift : -- Evidence in support of factum of gift-Evidence of witnesses including the donor (judgment‑debtor) had been shaken during cross‑examination relating to factuin of gift-Contradiction in statements of witnesses made such statements unworthy of credit-Evidence of such witnesses in support of factum of alleged gift, thus, could not be believed -Factum of gift was not proved in circumstances. P L D 1995 Karachi 421

26.              Hostile witness: -- Where party to suit had voluntarily taken into witness‑box person who had made deposition against such party, then under no legal or moral norms, party producing such witness could take adverse stand by disowning him to be his witness and asking for exclusion of his evidence from consideration-Law, however, would secure interest of such party by allowing him to declare such witness hostile and expose him through cross‑examination. 1998 C L C 2006

27.              Identification: -- Medical evidence by itself and without more cannot throw any light on the identity of the assailants. 1992 S C M R 1047

28.              Independent Witnesses : -- Defendant's plea, that witnesses produced by plaintiff in proof of his claim for damages were not "independent" but "interested" was fallacious, for no enmity or mala fides, whatsoever, had been alleged; the fact that such witnesses were in similar profession as that of plaintiff would not mean that statements given on oath by them were false, especially those which remained unshaken during cross‑examination: 1995 C L C 1246  

29.              Legitimacy ­: -- Finding recorded by Criminal Court in application for maintenance of children that child/children were not legitimate was of no evidentiary value in civil proceeding where question of legitimacy was being adjudicated.

Findings of Courts below that plaintiff was not the legitimate son of deceased was the result of misreading/non‑reading of evidence on record-Evidence on record suggested presumption of legitimacy in favour of plaintiff-Findings of two Courts below to the effect that plaintiff was not the legitimate son of deceased were set aside and plaintiff was declared to be the legitimate son of deceased and as such entitled to inherit property in accordance to his legitimate share in the same.   P L D 1995 Peshawar 124

30.              Marriage-Proof: -- Evidence adduced by plaintiff showed that her marriage with deceased was solemnized according to law - Nikah Khawn produced in Court stated that he had performed Nikah and that two or three other persons were also present at that time - Factum of Nikah between plaintiff and deceased was not controverted by defendant through evidence which inspired confidence - Valid marriage between plaintiff and deceased was proved in circumstances.

 Continuous co‑habitation between plaintiff and deceased for over a period of more than twenty years having been proved, person denying factum of marriage and to get out of presumption that such co‑habitation was as husband and wife, would be under the burden to prove that plaintiff was in fact not wife of deceased but his keep - Defendant failed to rebut presumption of marriage - Direct and circumstantial evidence thus proved facturn of marriage between plaintiff and her husband i.e. deceased. 1991 C L C 1290

31.              Material document" and "material evidence : -- "Material document" and "material evidence" mean such piece of evidence or documents, which would affect findings returned by the Court or in other words findings of Court would have been different if documents that had not been considered, had been looked into by the Court. 1996 C L C 333

32.              Minor discrepancy: -- Plaintiff could not have been non‑suited on minor contradiction in his statements when such statements were recorded after several years. P L D 1994 Supreme Court 162

33.              Muslim Family Laws Ordinance: -- Maternal uncle of husband and paternal-uncle of wife. had deposed in quite convincing manner, endorsing allegation of wife that her husband's mother and sisters were women of evil repute and they were keen that she (wife) also should follow their footsteps and on her resistance she was subjected to ill-treatment and even to physical beating by her husband who had also remarried and even had a daughter from his second wife and because of that plaintiff had developed profound and irreversible hatred against her husband. 1994MLD119

34.              New plea ­: -- Point not raised in written statement by defendant-Such point could not be allowed to be raised subsequently or to be led in evidence. 1999CLC 181

35.              News item-Admissiblity of : -- Defection from one political party and joining the other-Proof-News item, published in newspaper-Admissibility-News item published in different newspapers to the effect that petitioner had defected from his political party and had joined‑ the other party, was admissible under Arts.2 & 29, Qanun‑e­-Shahadat; 1984 as said news item had attracted attention of people throughout the constituency concerned as well as general public and communities of Province concerned, especially when petitioner had not contradicted said news item. 1999CLC 181 = P L D 1999 Quetta 106

36.              Nuisance : -- Question of nuisance having been caused to demised premises by installation of exhaust fan by tenant-Evidence for and against-Evidence produced by landlord was in quantity as also in quality more reliable and convincing in nature standing in good stead in supporting contentions of landlord-Evidence produced by tenant was unsatisfactory-Evidence produced by landlord, on question of fact had been believed by Courts below and same also inspired confidence-Question of nuisance as a ground for ejectment was thus proved in circumstances. P L D 1991 Supreme Curt 645

37.              Oath: -- Islamic concept of deciding certain matters on oath illustrated. Article 163, Oanun‑e‑Shahadat, 1984, is based on the Islamic concept of deciding certain matters on parties' oaths in specific circumstances, all matters not admitting of decision on mere oaths; hence the partial exception in clause (3) of the Article. The making of oaths, including those by witnesses, was apparently not a matter of routine under the Muslim law. It was only when the truth of a testimony was challenged that an oath was to be administered to a deponent. Two witnesses were usually required to prove a claim and if a plaintiff had only one, the plaintiffs taking oath personally would meet the requirement, as is borne out by a tradition of the Holy Prophet (p.b:u.h.) reported from Baqar in Imam Malik's Mowatta. If a plaintiff had no witnesses he had the option, to demand oath from, the defendant, the claim coming to be defeated on the defendant taking up the challenge but on defendant's refusal the plaintiff, was to take an oath in affirmation and with it the decree. The preponderance view, however, has been upon such a refusal the Qazi must straightaway pass decree because the refusal indicates either a concession of the thing claimed or an acknowledgment of the validity of the claim. The Qazi, however, ought not to pass a decree immediately on the refusal of the defendant but must first administer on oath to the plaintiff and then pass the decree against the defendant.  P L D 1994 Karachi 492

Acceptance or denial of claim on oath-Taking of oath was one of the admitted categories of proof in tribal areas which has now the legal sanction behind it under Art. P L D 1994 Peshawar 10

38.              Onus to prove: -- Whoever alleges existence of a particular fact must prove the same. 1997 M L D 2568

39.              Pleadings: -- Pleadings are not evidence-No case was proved by mere filing of plaint and documents but same has to be decided on pleadings by establishing their truthfulness. 1997 C L C 636

Pleadings could not be treated as part of evidence. 1997 C L C 152

­Evidence-Pleadings could not be substitute for evidence; each party must succeed on the strength of its own case and could not rely upon weakness of other side-Where evidence on record had been appreciated by Courts below, pleading could not be deemed to have been substituted for evidence or that judgment or decree were passed on basis of weakness of other side. 1997 M L D 732

40.              Proof: -- Nature of proof in civil and criminal cases-Prosecution, in criminal cases, was required to prove guilt to accused beyond reasonable doubt-In civil cases proof adduced in support of a fact should be such as to make a prudent man accept the same. 1996 M L D 1681

The extent to which any individual material of evidence would aid in the establishment of the general truth would be its probative force. This force must be sufficient to induce the Court either-

 (i) to believe in the existence of the fact sought to be proved, or

 (ii) to consider its existence so probable that a prudent man ought to act upon the supposition that it exists. The proof must rest on evidence. The Court must not base its conclusion on mere conjectures and surmises. It must take all facts into consideration. To attempt to isolate a particular fact from the surrounding circumstances and to discuss its logical inference was wholly out of place in judicial decisions. P L D 1994 Peshawar 10

41.              Proved Fact : -- A fact is said to be proved when after considering the matter 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. 2001 M L D 965

42.              Quantum of proof  : -- Rules of evidence for civil and criminal cases, are, in general, identical but some provisions in Qanun‑e‑Shahadat are peculiar to criminal cases while others are peculiar to civil cases -In‑civil cases all that was necessary to insist upon was that proof adduced in support of a fact was such that should make a prudent man to act upon the supposition that it in fact existed-Whether alleged fact was either a fact in issue or a relevant fact, Court could draw no inference from its existence till it believed it to exist; and belief of Court in the existence of a given fact ought to proceed upon grounds, altogether independent of the relation of the fad to the object and nature of proceedings in which its existence was to be determined.

43.              Question of fact: -- Whether particular person was in possession as an owner or as Hari was question of fact which could only be resolved after parties were called upon to lead evidence. 1997 C L C 1505

44.              Rent Restriction Ordinance: -- Employees of Municipal Corporation giving evidence in favour of tenant without bringing record and without having been summoned-Evidentiary value of-Evidence of such witnesses did not inspire confidence and they had given evidence rather obligingly and in the absence of supporting record. P L D 1991 Supreme Curt 645

45.              Res gestae: -- principle of-Application-Evidence of a witness as to what he heard immediately at the time of incident, would be admissible under principle of 'res gestae', even if same was hearsay. 1988 C L C 525

46.              Scribe: -- Best evidence available with plaintiff was scribe who had written agreement in question, but had not been examined-Stamp vendor who had issued stamp had also not been examined by plaintiff-Defendant having denied execution of agreement of sale, it was necessary for plaintiff to have requested Trial Court to get report of Finger Print Expert as to whether thumb ­impression so affixed on said agreement belonged to defendant or not-­Agreement to sell was not proved in circumstances. P L D 1997 Karachi 589

47.              Signatures on blank documents : -- Such assertion was although alleged by defendant in written statement and issue to that effect was struck on basis thereof, yet defendant did not lead any evidence to prove such fact-For the first time during arguments, defendant asserted such claim, which he could not be allowed to take at belated stage particularly when his witness categorically admitted that he did not see anything wrong with such documents-In absence of any evidence in proof of his assertion, defendant could not be deemed to have proved that he was made to sign blank documents by plaintiff. 1996 M L D 1727

48.              Signing and verification : -- Plaint was signed and verified by Chief Executive and Principal Officer of plaintiff in whose favour company resolution was alleged to have been passed by plaintiff‑Company but plaintiff did not examine such person as its witness and instead another person was produced in Court-Person produced as witness by plaintiff had no personal knowledge of loan having been advanced to defendant-Taking of loan by defendant from plaintiff was not established on basis of record, in circumstances. 1998 C L C 1580

49.              Solitary statement: -- Solitary statement of defendant could not upset evidence of plaintiff, particularly when nobody was examined in support of his testimony. 1997 M L D 2151

50.              Standard of proof: -- Standard of proof generally required in criminal cases is that it should be beyond all reasonable doubt while in civil cases proof would be on balance of probabilities. 1997 M L D 2151

51.              Termination of contract: -- Any written contract, subject to some exceptions could be terminated orally -Factum of rescission, however has to be proved through evidence, oral and circumstantial. P L D 1994 Karachi 492

52.              Unchallenged statement: -- Witness not cross‑examined on a material part of his evidence-Effect-Inference would be that truth of same was accepted by the other side-Statement of a witness which was material to the controversy of the caseparticularly stating his case-When not challenged in cross‑examination, then such unchallenged statement should be given full credit and usually accepted as true, unless displaced by reliable, cogent and clear evidence.

 Omission to cross‑examine a witness on a specific point-­Such specific point, however, was rebutted by making suggestions and denying the same in evidence by opposite party-Effect-Overall impression of entire evidence was that omission pointed out by appellant would not amount to acceptance of his plea. 1991 S C M R 2300

53.              Urban Rent Restriction Ordinance : -- Recording of evidence to determine questions in controversy in ejectment proceedings-­Applicability of provisions of Qanun‑e‑Shahadat to such proceedings and effect of non‑recording of evidence-Dispute relating to payment/non‑payment of rent-Such controversy would require framing of issue and determination of same after giving opportunity to parties to lead evidence -Qanun‑e­-Shahadat, 1984, being in force when ejectment application was filed, provisions thereof, would be applicable in ejectment proceedings-Court of Rent Controller being a Special Tribunal constituted under law, and having been authorised to record evidence and determine rights of parties was bound to follow the bare minimum principles of recording of evidence to decide controversial issues-Appellate Court below, while accepting appeal of landlord had no lawful authority to pass order of ejectment straightway, without putting controversy regarding commission of default into issue and giving opportunity to parties to lead evidence in support of their respective claims-Case was remanded to Rent Controller for decision afresh after framing of issues arising out of pleadings of parties and giving them opportunity to lead evidence in support of their respective contentions. 1993 C L C 2146  

54.              Witnesses : -- Defendant's plea, that witnesses produced by plaintiff in proof of his claim for damages were not "independent" but "interested" was fallacious, for no enmity or mala fides, whatsoever, had been alleged; the fact that such witnesses were in similar profession as that of plaintiff would not mean that statements given on oath by them were false, especially those which remained unshaken during cross‑examination: 1995 C L C 1246

CHAPTER II

OF WITNESSES

3. Who may testify. --- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender year, extreme old age, disease, whether of body or mind, or any other cause of the same kind;

Provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence:

Provided further that the provisions of the first proviso shall not apply to a person about whom the Court is satisfied that he has repented thereafter and mended his ways:

Provided further that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Quran and Sunnah for a witness, and, where such witness is not forthcoming, the Court may take the evidence of a witness who may be available.

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.

COMMENTARY

Child witness. Evidentiary value. Evidence of child witness is to be assessed with care and caution.4

Child witness, evidence of. Value. Evidence of a child witness being a delicate matter, was not safe to rely upon unless corroborated.5

Witness. Who may testify.6

Child witness. Competency. What the law requires is not the factor of age, but the intelligence of a particular child witness in the circumstances of the case.7

Competency of persons to testify. Rule enunciated in Art. 3 of Qanun-e-Shahadat, 1984, is not an absolute or inflexible rule.8

COURT DECISIONS

1.                  Child witness

2.                  Competence of witness

3.                  Confession Of Co-Accused

4.                  Court witness

5.                  Jailed Wittness

6.                  Non-Muslim

7.                  Relationship of witness

8.                  Tazkiya-al-Shuhood

9.                  Third proviso

10.              Who may testify

 

1.                  Child witness: -- Court is quite competent to give its observation with regard to the, intellect of the witness, meaning thereby that the only requirement is the satisfaction of the Court. 2002 P Cr. L J 41

Person of tender age who is capable of understanding the questions and answering them is a competent witness. So Evidence of child witness possessing sufficient understanding can be believed and relied upon for conviction. 1995 S C M R 1615+1994 P Cr. L J 788

Words "tender years" as used in Art.3 do not specify any particular age of a witness, it is only the capacity of a witness to understand things rationally and then to reply to them. 1993 P Cr. L J 1852

Eye-witness a girl of 8/9 years-No general rule of universal application, held, could be laid down that in no case evidence of child witness be believed-Rule of prudence, however, might require that evidence of a child witness be subjected to close and careful scrutiny and corroborated-Occurrence taking place in house of child who was a natural witness of occurrence and her name also mentioned in first information report-Statement of child witness corroborated by evidence of Wajtakar and res gestae and could not be impeached by defence-Evidence of such child eye-witness was, therefore, believable. 1988 P Cr. L J 238

Preliminary inquiry for determining the fitness of the child to depose as a witness, whether necessary-Holding of the preliminary inquiry by the Trial Court is a rule of prudence and not a legal obligation upon the Court-Omission to hold preliminary inquiry does not render the evidence of minor inadmissible. Court can adjudge the capability of the witness from the manner in which he had given the evidence as well as from his recorded evidence. 1994 P Cr. L J 788

Childs evidence is not inadmissible merely because no oath was administered to him. 1992 P Cr. L J 101

Evidence of child witness is to be assessed with care and caution.AsEvidence of child witness is a delicate matter and normally it is not safe to rely upon it unless corroborated. It is a rule of prudence. Great care is to be taken that in the evidence of child element of coaching is not involved.

Children are a most untrustworthy class of witnesses, for, being of lender age, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and by desire of notoriety. In any case the rule of prudence requires that the testimony of child witness should not be relied upon unless it is corroborated by some evidence on the record. P L D 1995 Supreme Court 1

2.                  Competence of witness: -- No objection raised to competence of any witness in trial Court and such point not raised even casually in trial Court-Attempt made before High Court in appeal to raise such point by counsel for appellant by contending that as required by Third proviso to Art. 3, trial Judge did not determine competence of witnesses before permitting them to give evidence-Argument of counsel, held, devoid of any merit. 1986 P Cr. L J 1503

3.                  Confession Of Co-Accused : -- Allegation of Zina-Medical evidence relating to male accused was of no use because it simply indicated that he was capable of performing sexual intercourse and he being a married man himself had also not denied his potency-Similarly opinion of the Lady Doctor concerning lady accused that she was used to sexual intercourse was of no help as she being a married woman lived with her deceased husband prior to the occurrence-Deposition of a prosecution witness that he‑ had only seen both the accused going together in a car also did not advance the prosecution case-Involvement of accused in the commission of Zina could not be conclusively inferred from any piece of evidence available on record-Admission of lady accused in her confessional statement to have enjoyed illicit relations with her co‑accused could not corroborate the confessional statement of the male accused, because as per Art. 43 of the Qanun‑e‑Shahadat, 1984, though a confession made by one accused can be taken into consideration against another, yet it being not a substantive piece of evidence within the purview of ‑Arts.2 & 3 of the Qanun‑e‑Shahadat, 1984, could not take the place of or be substituted for evidence-Even otherwise, confession of both the accused being inconsistent and discrepant were of no use for the purpose of corroboration-Prosecution had failed to produce confirmatory evidence-Accused were acquitted in circumstances. 2001 M L D 1939

4.                  Court witness : -- Minor girl aged about ten years whose mother and brothers had been murdered in her presence in which she had also received injuries was refused to be summoned as a Court witness by the Sessions Court on the application of the complainant, inter alia, on the ground that at the time of occurrence she was only of 8‑1/2 years-Facts that the name of the said child witness was not mentioned in the list of witnesses, that request for her examination was made at a belated stage and that she was very young (8‑1/2 years old) at the time of occurrence, could not prevent the Trial Court to exercise its jurisdiction under S.540, Cr.P.C.-Failure of Trial Court to consider the provisions of Art. 3 of Qanun‑e‑Shahadat, 1984 while deciding the feasibility of examination of the minor witness was itself sufficient for setting aside the impugned order-Name of the said child although was not mentioned in the list of witnesses yet it figured in the F. I. R. and also in the report submitted under S.173, Cr.P.C. and according to her medico‑legal report she had suffered eight injuries during the occurrence which took place in her house-Said minor girl was, therefore, the most important witness to be examined at the trial whose examination could definitely advance the interest of justice-Impugned order was consequently set aside and Trial Court was directed to examine the said minor girl as a Court witness in the light of the provisions of Art. 3 of Qanun‑e‑Shahadat, 1984. 1997 M L D 2077

5.                  Jailed Wittness: -- Leave to appeal was granted to examine the contention that the eye‑witness who admittedly had been jailed on the charge of perjury was not a competent witness in view of Art. 3 of Qanun‑e-­Shahadat, 1984 and, therefore, reliance could not have been placed on his testimony. 1997 S C M R 25

6.                  Non-Muslim: -- "all persons" used in Art.3 of Qanun-e-Shahadat, 1984 includes non-Muslims. 1997 P Cr. L J 1696

7.                  Relationship of witness: -- Evidence of Relative witness cannot be brushed aside only because of his relationship, if otherwise it is disinterested and credible. 2001 SCMR 1488

8.                  Tazkiya-al-Shuhood: -- Even if the requirement in respect of Tazkiya-al-Shuhood can be fulfilled at the end of the testimony and cross-examination of a witness, then even at that stage the accused must be provided with another opportunity of cross-examining the witness in respect of his status as claimed to be a just/Adil witness. It is only through the process of cross-examination of a witness in respect-of a question asked of him to fulfil the requirements of Tazkiya-al-Shuhood that an accused can on the one hand impeach the probity and credibility of a witness and by the same process enable the Trial Court to fulfil late necessary requirements of inquiry to reach a conclusion that the witness is a just/Adil witness and that his evidence need not be discarded but needs to be relied upon to decide the case. 1992 P Cr. L J 1536

But Where Witnesses Was not cross-examined on question of their competence under Art. 3 of Qanun-e-Shahadat in trial Court and No objection theretowas raised on behalf of accused at trial-Leave to appeal refused. Because Competency of witnesses neither challenged before trial Court nor even in arguments before Court- No question put to witnesses either about such testimony or previous character in" cross‑examination-Witnesses were competent to give evidence-Court, held, was to determine competency of witnesses in accordance with qualification prescribed by injunction of Islam as laid down in Holy Qur'an and Sunnah and if Courts came to conclusion that witnesses 'were not competent, Court could discard their evidence. 1986 P Cr. L J 1818+1836

Provision of proviso 3 of Art. 3 of Qanun‑e‑Shahadat not saying that if witnesses bearing qualifications prescribed by injunctions of Islam are not available then accused was to go soot‑free-In absence of provision regarding consequence of non‑compliance of first part of proviso, it, held, shall be presumed that proviso was directory and not mandatory and as such its non‑compliance would not vitiate trial.

­Presumption was that no witness bearing qualification prescribed by Injunctions of Islam was available; therefore, evidence was recorded of such witnesses who were available in case-Non‑compliance of proviso 3 of Art. 3 of Qanun‑e‑Shahadat Order, 1984, held, was an irregularity which was curable under S. 537, Cr.P.C. as neither any prejudice had been caused to accused nor any failure of justice had occasioned due to such non‑compliance-Trial not vitiated in circumstances. 1986 P Cr. L J 1503

9.                  Third proviso: -- Purpose of third proviso to Art. 3 of Qanun-e-Shahdat Order is simply to empower Court itself and not anyone else to determine competence of a witness in accordance with qualifications prescribed by injunction of Islam as laid down in Holy Quran and Sunnah-Such determination is not required by proviso to be necessarily gone into suo moth without question being raised by any party in respect of competence of a witness-Court may do it itself no doubt,. But it is not a must-It would be an exercise in futility unless some person who had requisite information in respect of unfitness or a witness raises such a question or Court itself has some doubts in respect of competence-Last phrase of third proviso to Art. 3, held, made it clear that if a witness, competent, according to injunctions of Islam, is not forthcoming then in that case any witness who is available can be examined -Emphasis, therefore, is upon deciding controversy after examining available witnesses, because rights of people cannot be allowed to be lost merely on account of non-availability of those persons who do come up to high standards set in Islam-There having been a general decadence in conduct and characters of people as a whole as compared to early Islamic period, provision for examining available witnesses in absence of competent witnesses according to Islamic injunctions, is an expedient provision. 1986 P Cr. L J 1503

10.              Who may testify: -- Article 3 of the Qanun‑e‑Shahadat, 1984 provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions 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. The explanation to the above Article lays down that a lunatic is competent to testify unless he is prevented by. his lunacy from understanding the questions put to him and giving rational answers to them. In other words, the above provision of the Act makes all persons competent to testify unless the Court considers it otherwise on account of above reasons which include tender age. P L D 1995 SC 1

4. Judges and Magistrates. --- No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any questions, as to his own conduct in Court as Judge or Magistrate, or as to anything which come to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.

Illustrations

(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.

5. Communications during marriage. --- No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative-in-interest consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

6. Evidence as to affairs of State. --- No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of state, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

Explanation. In this Article “official records relating to the affairs of State” includes documents concerning industrial or commercial activities carried on, directly or indirectly, by the Federal Government or a Provincial Government or any statutory body or corporation or company set up or controlled by such Government.

COMMENTARY

Preventive detention. Grounds for. Privilege claimed. Under provisions of Qanun-e-Shahadat, privilege can be claimed. Held: It is open to Court to inspect material and give finding whether such claim should be allowed or not.9

Document. Privilege in respect of. Claim of. If in a criminal trial, such important and sensitive document covering national security was required by an accused in his defence and was not allowed to be produced on ground of privilege, fate of accused would be deemed. Held: Whether such a claim for privilege would not obstruct or debar an accused from fully and fairly meeting prosecution case or asserting his defence and thus vitiate whole trial on ground of its suffering from an inherent vice or being against elementary principle of natural justice, would call for careful examination.1

7. Official communications. --- No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

Explanation. In this Article, “communications” includes communications concerning industrial or commercial activities carried on, directly or indirectly, by the Federal Government or a Principal Government or any statutory body or corporation or company set up or controlled by such Government.

8. Information as to commission of offences. No Magistrate or Police Officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue Officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.

Explanation. In this Article, “Revenue Officer” means any officer employed in or about the business of any branch of the public revenue.

9. Professional communications. No advocate 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 advocate, 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 Article shall protect from disclosure—

(1) any such communication made in furtherance of any illegal purpose; or

(2) any fact observed by any advocate, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether the attention of such advocate was or was not directed to such fact by or on behalf of his client.

Explanation. The obligation stated in this Article continues after the employment has ceased.

Illustrations

(a) A, a client says to B, an advocate “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.

(b) A, being charged with embezzlement, retains B, an advocate, 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.

10. Article 9 to apply to interpreters, etc. This provisions of Article 9 shall apply to interpreters, and the clerks or servants of advocates.

11. Privilege to waived by volunteering evidence. 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 discourse as is mentioned in Article 9, and, if any party to a suit or proceeding calls any such advocate as a witness, he shall be deemed to have consented to such disclosure only if he questions such advocate on matters which, but for such question, he would not be at liberty to disclose.

12. Confidential communications with legal advisors. No one shall be compelled to disclose to the Court, Tribunal or other authority exercising judicial or quasi-judicial powers or jurisdiction 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.

13. Production of title deed of witness, not a party. 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 pledge 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.

14. Production of documents which another person, having possession, could refuse to produce. 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.

15. Witness not excused from answering on ground that answer will criminate. 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 proceedings, 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 proved against him in any criminal proceedings, except a prosecution for giving false evidence by such answer.

COMMENTARY

Statement of witness in Court in judicial proceedings whether privileged. Qualified protection. Witness enjoys absolute privilege as the ultimate object of dispensing justice may rest on his testimony which in all probability must convey truth relating to the inquiry. Placing any fetters on witness may detain him from deposing truth or at least all that he knows about the point in issue and the same might misdirect the course of justice. Even alternate case of giving qualified privilege to witnesses’ statement had to be confined to his deposition, which being available in its entirety on the record was scrutinized at length by the Court in revision for neither of the Courts below had expressed opinion as to whether the statement in question, could not be afforded qualified protection. Remarks of witness, during judicial proceeding did not appear to have been wanton, reckless or beyond the plea of inquiry.2

Defamatory remarks made by a witness in his testimony in judicial proceeding against counsel in answer to a question in cross-examination. Privilege. Extent of. Plaint, in suit for damages against such witness showed that no motive or ulterior reason was attributed therein to witness in having made such typical remarks against the counsel. Element of malice was thus missing in the plaint; instead plea taken was that those remarks were made deliberately which expression was not synonymous with the motive besmearing thinking of witness against the counsel. Remarks attributed to witness related to a case wherein, the property in question, as “Tarka” of the propositus on whose demise partition thereof, was being sought. Witness in answer to a question, had explained lamenting how the counsel earlier persuaded him to make a typical statement before Court on the pretext that it was conducive to the interest of the minor orphans: witness thought in his own way that the statement obtained from him by the counsel was detrimental to the interest of minor orphans; and in that context he had dubbed counsel to be cruel. Witness had reiterated in the later part of his statement that his testimony before the Court presumably against the interest of orphans, was the result of deceitful and unconscionable promptings of counsel. Witness, while making such remarks against counsel was feeling qualms of conscience in recalling that he was obliged to make involuntarily a statement against the interest of orphans because of counsel’s careless and unconscionable attitude. Such remarks having been obtained in cross-examination were not voluntary and were, thus, privileged. Defamatory remarks made voluntarily were, however, not privileged. Remarks attributed to witness were not unconnected or irrelevant to the matter in issue; remarks in question were evoked when witness was apparently confronted with his previous statement and were deeply relatable to the subject-matter of suit; purport where of was, to express how a false suggestion was made to witness pertaining to the interest of orphans in the property. Remarks attributed to witness were germane to the matter in inquiry and were fully protected.3

Defamatory remarks made by a witness in his testimony in judicial proceeding whether privileged. Witness was bound to say all that he knew even though defamatory. Such latitude to witness was indispensable for searching truth to render justice. Where statement of a witness dealt with a matter which was not in any reasonable sense germane to the subject-matter in issue, the protection of privilege should not be extended to that statement. Test applicable to the statement of a witness was that he was not showing malice; was not trying to degenerate the privilege into a licence; was stating something quite connected with and relevant to the issue in question; and was not dealing with a matter not germane to the point in issue; where there were indications that witness was actuated by any of such considerations, his statement would not be protected.4
16. Accomplice. An accomplice shall be a competent witness against an accused person, except in the case of an offence punishable with hadd; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

COMMENTARY

Evidence of accomplice, admissibility of. Evidence of an accomplice against co-accused is inadmissible only in cases of ‘Hadd’ and ‘Qisas’, and though admissible in cases relating to offences liable to ‘Tazir’ only but conviction in such cases cannot be based solely on the uncorroborated testimony of such accomplice.5

Provision relating to conviction on sole testimony of accomplice as provided in Art. 16 declared, for reasons stated in judgment, to be repugnant to Injunctions of Islam w.e.f. 31st December, 1991 whereafter Art. 3 would become void and shall be of no effect.6

Uncorroborated evidence of an accomplice can be made basis of conviction in all criminal cases except those punishable with Hadd. Courts, however, as a rule of prudence seeking corroboration in material particulars of evidence of an accomplice before making it basis of conviction.7

17. Competence and number of witnesses. --- (1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Quran and Sunnah.

(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law,---

(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and

(b) in all other matters, the Court may accept or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant.

COMMENTARY

In criminal cases, where accused is being proceeded against for awarding Tazir punishment, Tazkiya-al-Shahood is not required. Court can legitimately act on evidence without Tazkiya which, to satisfaction of Court, establishes guilt of accused beyond reasonable doubt.8

Court can convict an accused person on the testimony of one dependable witness. Law attaches more importance to quality than to quantity of evidence.

Proof of a fact would depend upon the character of witnesses and their competency to speak to that fact.9

Clause (1) of Art. 17 of Qanun-e-Shahadat is not exhaustive because it enjoins a Judge or a Qazi to find out for himself from the Holy Qur’an and Sunnah the competence and number of witnesses in a given case.1

Tazkiyah-al-shuhood – Non observance of --- Effect: - Contention that the process of tazkiyah-al-shuhood was not resorted to, therefore, the appellants could not have been punished on the basis of the statements of the P.Ws, --- repelled. It was held, the record does not indicate that the requirements of tazkiyah-al-shuhood as envisaged by section 7 of the Hudood Ordinance, in the case were satisfied yet, the fact remains that statements of the witnesses which other-wise were, recorded on oath, could not have been straight away rejected No doubt, tazkiyah-alshuhood is a condition precedent to impose the sentence of hadd, yet, it cannot be said that ta’zir punishment, cannot be inflicted on an accused, if it has not been undertaken. Since, every Muslim is a competent witness and he is ordained to speak the truth therefore, his testimony, so far as ta’zir punishment is concerned, cannot be discarded, if it is otherwise, believable. In a number of cases, where the requirements of tazkiya-al-shahood, were not fulfilled testimonies of the witnesses were believed, by the court, to award ta’zir punishments.[P-39]D1a

CHAPTER III
OF THE RELEVANCY OF FACTS

18. Evidence may be given of facts in issue and relevant facts. 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 Article 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 Article 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 law for the time being in force relating to Civil Procedure.

19. Relevancy of facts forming part of same transaction. 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, 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 which 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.

COMMENTARY

A portion of the statement of a witness based on personal observation and knowledge of the witness cannot be regarded as hearsay. --- because statements made under immediate influence of a transaction being resiesdae are admissible under Article 19 of the Qanun-e-Shahadat Order 1984. --- Hearsay testimony would be admissible if it is proved that the object of the maker of the statement was to elucidate and explain the circumstances connected with the same transaction provided the possibility of concoction or distortion, to the advantage of the maker or to the disadvantage of the accused, is ruled out.1b

Statement made immediately after murder occurrence under influence of occurrence in order to characterize it and explain circumstances connected therewith would be admissible under Art. 19 as res gestate evidence.2

Statement made by an independent witness of murder occurrence would be relevant under Art. 19 for determining guilt of accused.3

20. Facts which are the occasion, cause or effect of facts in issue. Facts which are the occasion, 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 person, 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.

21. Motive, preparation and previous or subsequent conduct. (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

(2) The conduct of any party, or 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 clause does not include statements, unless those statements accompany and explain acts other than statements but this explain is not to affect the relevancy of statements under any other Article of this Order.

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 only 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 position similar to that which was administered to D, 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 advocates 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 favourable 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 Rs. 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 advice 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.

(j) 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 compliant 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 Article though it may be relevant as a dying declaration under Article 46m paragraph (1), or as corroborative evidence under Article 153.

(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 Article, though it may be relevant as a dying declaration under Article 46, paragraph (1), or as corroborative evidence under Article 153.

22. Facts necessary to explain or introduce relevant facts. 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 anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant facts happened, or which show the relation of parties by whom any such fact was transacted, are relevant insofar as they are necessary for that purpose.

Illustrations

(a) The question is, whether a given document is the will of A.

The state of A’s property and of his family at the date of the alleged will may be relevant facts.

(b) A sues B for a libel imputing disgraceful conduct to A; B affairs that the matter alleged to be libelous 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 Article 21, 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 insofar 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 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 mob are relevant as explanatory of the nature of the transaction.

COMMENTARY

Identification parade. When culprits were not known to the witnesses and witnesses had only a monetary glimpse of the culprits at the time of occurrence, prosecution was bound to prove that culprits, soon after their arrest, were put to identification test and got identified by eye-witnesses through an identification test/parade held in presence of a Magistrate.4

Identification test. Nature. Holding of identification test was not a requirement of law but was only one of the methods to test veracity of evidence of an eye-witness who had an occasion to see accused and claimed to identify the culprit.5

Identification test. Nature. Identification test was not a requirement of law, but it was only one of the methods to test the veracity of evidence of an eye-witness who had an occasion to see accused and claimed to identify him.6

Identification parade. Delay in holding identification parade was not always fatal to case of prosecution. Credibility of identification parade depended upon a host of circumstances including type of witnesses, manner in which same was carried out including proportion of innocent persons to be mixed with suspects and fact as to how and in what manner and circumstances prosecution witnesses came to pick out a particular accused and details of part which that accused had, in fact, taken in crime. Delay simpliciter in conducting identification parade, would not prejudice capability, if otherwise enough, of eye-witnesses to identify culprits.8

23. Things said or done by conspirator in reference to common design. --- 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 Pakistan.

The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Peshawar for a like object, D persuaded persons to join the conspiracy in Karachi. E published writings advocating the object in view at Multan, and F transmitted from Lahore to G at Kabul the money which C had collected at Peshawar and 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.

24. When facts not otherwise relevant become relevant. Facts not otherwise relevant are relevant ---

(a) 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.

Illustrations

(a) The question is, whether A committed a crime at Peshawar on a certain day.

The fact that, on that day, A was at Lahore is relevant.

The fact that near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.

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

The circumstances are such that the crime must have been committed either by A, B, C, or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant.

25. In suits for damages facts tending to enable Court to determine amount are relevant. 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.

26. Facts relevant when right or custom is in question. Where the question is as to the existence of any right or 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 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 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.

27. Facts showing existence of state of mind, or of body, or bodily feeling. Facts showing in 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 particulars 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 Article, the previous conviction of such person shall also be a relevant fact.

Illustrations

(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 (sic) its delivery, A was possessed of a number of other pieces of counterfeit (sic) 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 damages done by a dog of B which B knew 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 tht 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 A repeated the matter complained of as he heard it, are relevant, as showing that A did not intended to harm the reputation of B.

(f) A is sued by B for fraudulently representing to B that C was solvent whereby B, being inducted 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 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 in 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 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 whished 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 letter 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.

Statement 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 occasion 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 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 indicated general disposition to commit crimes of that class is irrelevant.

28. Facts bearing on question whether act was accidental or intentional. When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrence, 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 different insurance officers, 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 rupees.

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.

29. Existence of course of business when relevant. 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.

Illustrations

(a) The question is, whether a particular letter was dispatched.

The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place are relevant.

(b) The question is, whether a particular letter reach A.

The facts that it was posted in due course, and was not returned through the Dead Letter Office, are relevant.

ADMISSIONS

30. Admission defined. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.

COMMENTARY

Admission of fact by plaintiffs. Effect. Plaintiff in his statement before Court had admitted part of defendant claim viz. value of tube well. Such payment would be made by plaintiffs in addition to payment of decretal amount.7

Judgment on admission. Essentials. Party to suit can seek decree on admission made in pleadings or otherwise without waiting for determination of any other question between parties. Admission sought to be the basis of decree was in fact qualified admission of an official of the defendant and inter-departmental communications which would not amount to conceding plaintiff’s claim. Any admission as contemplated by O.XII, R. 6, C.P.C. has to be unequivocal admission which could amount to estoppel against the party making such admission. Defendant had yet to file written statement while application in terms of O.XII. R. 6, C.P.C. had been filed before defendants had submitted their written statement. Plaintiffs were thus, not entitled to decree on basis of qualified admission in terms of O.XII, R. 6, C.P.C.8

31. Admission by party to proceeding or his agent, etc. (1) Statement made by a party to the proceedings, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions.

(2) Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.

(3) Statements made by---

(a) persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or

(b) persons from whom the parties to the suit have derived their interest in the subject-matter of the suit,

are admissions if they are made during the continuance of the interest of the persons making the statements.

COMMENTARY

Admission of fact by illiterate lady. Effect. Where illiterate lady who did not understand the meaning of legal words, like “decree” had admitted in her statement factum of decree against here and in the same statement denied the existence of any such decree, decree in question, was not proved in absence of production of copy of decree/judgment in question.1

32. Admission by persons whose position must be proved as against party to suit. Statements made by persons, whose position or liability it is necessary to prove as against any party to the suit, are admissions, if such statement would be relevant as against such persons in 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.

33. Admission by persons expressly referred to by party to suit. Statements made by persons to whom a party to the suit has expressly referred for information in reference to matter in dispute are admissions.

Illustrations

The question is, whether a horse sold by A to B is sound.

The says to B: “Go and ask C: C knows all about it.” C’s statement is an admission.

34. Proof of admissions against persons making them, and by or on their behalf. Admission 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 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 Article 46.

(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 improbably.

(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 Article 46, paragraph (2).

(c) A is accused of a crime committed by him at Peshawar.

He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-marks of that day.

The statement in the date of the letter is admissible, because, if A were dead, it would be admissible under Article 46, paragraph (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 person did examine it and told him it was genuine.

A may prove these facts for the reasons stated in the last preceding illustration.

35. When oral admissions as to contents of documents are relevant. 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 documents under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

36. Admissions in civil cases when relevant. 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 Article shall be taken to exempt any advocate from giving evidence of any matter of which he may be compelled to give evidence under Article 9.

37. Confession caused by inducement, threat or promise, when irrelevant in criminal proceedings. 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 supporting that by making it he would gain any advantage or avoid and evil of a temporal nature in reference to the proceedings against him.

COMMENTARY

Confessional Statement. Omission by recording Magistrate to ask question whether confessional statement was made under promise by Police, would not affect evidentiary value of confessional statement when accused did not say in their statement u/s. 342 and u/s. 340(2), Cr.P.C. that their confessional statement was made under promise.2

Extra-judicial confession. Extra-judicial confession was weakest type of evidence which required that before it was relied upon, it must be supported by some independent circumstantial evidence coming from an unimpeachable source.3

38. Confession to police officer not to be proved. No confession made to a police officer shall be proved as against a person accused of any offence.

COMMENTARY

Confession by accused before Police would inadmissible in evidence under Art. 38.3a

39. Confession by accused while in custody of police not to be proved against him. Subject to Article 40, 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 Article, “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, 1898 (Act V of 1898).

COMMENTARY

Mere pointing out the place to police as being the place where children had been thrown by accused but such pointing out did not lead to discovery of any fact. Held: For purpose of Art. 40, this evidence cannot be relied upon as corroboratory evidence.4

Confession. Retracted confession. Constitution of Pakistan, 1973, Art. 185 (3). Leave to appeal was granted to consider the contentions of accused that if the Courts below would have considered the retracted confession as a whole, the accused would not have been awarded the death penalty and that the confession was retracted, and, therefore, in order to convict the accused there should have been corroboration and further that the confession should have been read as whole and reliance should not have been placed merely on the inculpating part and ignoring the other portion.5

40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received form 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.
COMMENTARY

Recovery made on pointation of accused is relevant under Art. 40.6

Place of occurrence. Discovery. Place of occurrence known to everyone and site plan having been prepared prior to the pointation of the same by the accused, such pointation could not be treated as a discovery to bring it within the four corners of Art. 40 of Qanun-e-Shahadat, 1984.7

41. Confession made after removal of impression caused by inducement, threat or promise, relevant. If such a confession as is referred to in Article 37 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant.

42. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc. 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 practiced 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:

43. Consideration of proved confession affecting person making it and others jointly under trial for same offence. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved, ---

(a) such confession shall be proof against the person; making it; and

(b) the Court may take into consideration such confession as circumstantial evidence against such other person.

Explanation.--- “Offence”, as used in this Article, 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 C was murdered by A and B, and that B said: “A and I murdered C”.

This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.

44. Accused persons to be liable to cross-examination. All accused persons, including an accomplice, shall be liable to cross-examination.

45. Admission not conclusive proof but may estop. Admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions hereinafter contained.

COMMENTARY

Admissions made in pleadings and evidentiary admissions. Connotation. Effect. Admission embodied in Art. 113, Qanun-e-Shahadat is a rule of procedure while Art. 45 thereof, is to be given effect through the rule of evidence. Admissions in pleadings were conclusive but not the others. Admissions in pleadings would have overriding role which does not permit that admissions through evidence or unrebutted statements be made basis of adjudication in exclusion to admissions in pleadings. Defendants having admitted ownership of plaintiff’s predecessor in their written statement and thereafter, claiming themselves to be the owners thereof, onus to prove such ownership should have been on defendants. Plaintiff’s job to prove ownership ends successfully when admission of their ownership had been made in written statement by defendants. Defendant’s oral statement that they had become owners of property in question, through decree of Court, without producing on record such decree or copy of judgment was of no effect and their ownership of property in question, was not established. Oral evidence could not be of any value in absence of production of available documentary evidence.9

STATEMENT BY PERSONS WHO CANNOT BE
CALLED AS WITNESSES

46. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. 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 it relates to cause of death. When the statement is made by a person as to cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the causes 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) Or is made in course of business. 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 him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement 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) Or against interest of make. When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose or would have exposed him to a criminal prosecution or to a suit for damages.

(4) Or gives opinion as to public right or customs, or matters of general interest. 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) Or relates to existence of relationship. When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to when relationship by blood marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before question in dispute was raised.

(6) Or is made in will or deed relating to family affairs. 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) Or in document relating to transaction mentioned in Article 26, paragraph (a). When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Article 26, paragraph (a).

(8) Or is made by several persons and expresses feelings relevant to matter in question. 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 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 Peshawar on a given day.

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 Peshawar, for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Karachi harbour on a given day.

A letter written by a deceased member of a merchants firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Karachi harbour is a relevant fact.

(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 order, 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 rime 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 a relevant fact.

(i) The question is, what was the cause of the wreck of a ship.

The statement made by the Captain, whose attendance cannot be procured, 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 on a given day, is a relevant fact.

(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 B for a libel expressed in a pointed caricature exposed in a shop window. The question is as to the similarity of the caricature and its libelous character. The remarks on a crowd of spectators on these points may be proved.

COMMENTARY

Dying declaration. Nothing was available on record that official had not recorded the dying declaration in verbatim, though in the translated form. Nothing could be brought out in the cross-examination of recording Magistrate which could cast doubt as to the veracity of the contents of the dying declaration which was made in Urdu and translated into Sindhi and English. Contention that dying declaration was liable to be discarded as it was not recorded in the language namely Urdu, in which it was made, particularly in the absence of any material that the Recording Magistrate was well conversant with Urdu, Sindhi and English languages, was repelled. Dying declaration, if did not suffer from any infirmity, was sufficient to warrant conviction for an offence.1


Dying declaration. Presence of relatives around the deceased. Effect. Dying declaration made in presence of relatives be always taken with a pinch of salt and the same renders the dying declaration doubtful. Prompting of relatives to the deceased at the time of recording of dying declaration. Effect. No sanctity can be attached to a dying declaration where the relatives are present around and where the names of the accused are prompted by such relatives.2

Admissibility of depositions and former testimony. Depositions taken by Magistrate who was incompetent to do so, cannot be transferred under provisions of Art. 47. Requirements of Art. 47 must be proved in letter and spirit before depositions of witnesses are transferred to file of Sessions Court. It was held that in circumstances of case, depositions of witnesses brought on record of Sessions Court could not be treated as evidence.3

Dying declaration. No mandatory pre-requisites of law exist that a dying declaration cannot be made before a police officer or that it should always be in writing. Dying declaration can be oral and communicated by means of gestures when the victim cannot speak due to his critical condition.4

Dying declaration. Admissibility. Admissibility of dying declaration not affected by S. 164, Cr.P.C. Provisions of S. 164, Cr.P.C. do not in any way affect the admissibility of a statement made by a person if it falls within the terms of Art. 46 of Qanun-e-Shahadat, 1984.5

Oral dying declaration. Admissibility. Dying declaration is admissible even if orally made.6

Dying declaration. Sufficiency to sustain conviction thereon. Conditions. Dying declaration, by itself, was sufficient to sustain conviction thereon provided there was no chance of mistaken identity; deceased was capable of making statement; the time elapsed after sustaining injury before deceased made statement; whether statement rang true; statement was free from promptness of others and deceased was not a man of questionable charcter.6a

Appreciation of evidence. Dying declaration. Great caution is to be taken before placing reliance on a dying declaration because it is a weak piece of evidence as its maker is not subjected to cross-examination.7

47. Relevancy of certain evidence for proving, in subsequent proceedings, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding, or before any person authorized 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 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;

the adverse party in the first proceeding had the right and opportunity to cross-examine;

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 Article.

STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES

48. Entries in books of account when relevant. 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 enquire, 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.

COMMENTARY

Banker and customer. Entries in account of account-holder by bank alleged that credit entries in the account of account-holder were made by Bank by oral instructions of the account-holders thus making deviation from the rule or practice of the Bank. Burden would shift to the Bank alleging aid deviation to prove that said credit entries were made on oral instructions of the account-holder. Where the Bank failed to discharge the burden to prove the oral instructions, presumption would be that account of account-holder was credited by the Bank only after receiving the proper advice and cash.8

49. Relevancy of entry in public record made in performance of duty. 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.

COMMENTARY

Entries in death register maintained in regular course of business would be conclusive. Presumption of correctness of such entries shall prevail over conflicting entries about date of death in inheritance mutation.9

Death entry made in 1918 when there was no dispute between parties. It remained in existence ever since which enhanced its evidentiary value. Held; There was no warrant for Courts below to have kept such death entry out of consideration.1

Long-standing entry made in Register of Deaths in 1918. Evidentiary value. Entry of death in Register of Deaths kept as a public record and having remained in existence ever since 1918, had enhanced its evidentiary value. Courts below in keeping such entry out of consideration had committed an illegality justifying High Court to interfere in its revisional jurisdiction.2

Original register maintaining death entries. Such register on the face of it appeared to have been duly maintained in regular course of business and contained death entry of person in question. Entries in such register were relevant under Art. 49, Qanun-e-Shahadat, 1984.3

50. Relevancy of statements, in maps, charts and plans. 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 Federal Government or any Provincial Government, as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts.

51. Relevancy of statements as to facts of public nature, contained in certain Acts or notifications. 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 in any Act of the Central Legislature or of any other legislative authority in Pakistan or in a Government notification appearing in the official Gazette is a relevant fact.

52. Relevancy of statements as to any law contained in law-books. 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.

COMMENTARY

Foreign law. Mode of proof. Foreign law can be proved by producing a book purporting to be printed or published under the authority of the Government of the country concerned containing a statement of the relevant law. Expert opinion on a foreign law is also a relevant fact and therefore, an expert can also be examined.4

HOW MUCH OF A STATEMENT IS TO BE PROVED

53. What evidence to be given when statement forms part of a conversation, document, book or series of letters of papers. 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.

JUDGMENTS OF COURTS OF JUSTICE WHEN RELEVANT

54. Previous judgments relevant to bar a second suit or trial. 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.

55. Relevancy of certain judgments in probate, etc., jurisdiction. 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.

56. Relevancy and effect of judgments, orders or decrees, other than those mentioned in Article 55. Judgments, order or decrees other than those mentioned in Article 55 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.

Illustrations

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.

57. Judgments, etc. other than those mentioned in Articles 54 to 56, when relevant. Judgments orders or decrees, other than those mentioned in Articles 54, 55 and 56, 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 Order.

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 libelous 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 made 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.

(f) 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 and under Article 21 as showing the motive for the fact in issue.

58. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved. Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Article 54, 55 or 56, 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.

OPINION OF THIRD PERSONS WHEN RELEVANT

59. Opinions of experts. When the Court has to form an opinion upon a point of foreign law, of science, or art, or as to identity of hand-writing or finger impressions, the opinion upon that point of persons specially skilled in such foreign law, science or art or in questions as to identity of hand-writing 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 he nature of the 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 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 ascertain 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.

COMMENTARY

Opinion of finger-point expert taken on file without objection. Objection to mode of proof at revisional stage. Competency. Opinion of finger-point expert was taken on file by trial Court without any objection having been raised about its made of proof. Neither in lower Appellate Court nor in grounds of revision objection about improper admission of opinion of finger-print expert in evidence was taken. Defendant in default of clear objection at appropriate time was precluded from objecting to mode of proof regarding admission of opinion of expert or his examination on commission in revision.5

Expert opinion. Objection to mode of proof. In default of clear objection taken at the appropriate time, defendant was precluded from objecting to the mode of proof regarding admission of the opinion of expert or his examination on commission. Such evidence was rightly read in evidence in Courts below.6

Criminal trial. Whether the opinion of a person who had investigated the case does or does not fall within the ambit of Arts. 59 to 65 of Qanun-e-Shahadat and whether such an opinion could or could not be brought on record as legal evidence. Statement of an Investigating Officer that according to his investigation a particular person was innocent or guilty, as the case may be, is an expression of opinion which expression or statement is irrelevant and inadmissible in evidence.7

Opinion of a witness. Evidentiary value. Exception.8

Belated and unilateral examination of disputed signatures with those obtaining on record by trial Court, without providing adequate opportunity of hearing to contestants, would not only be irregular but even illegal, being violative of principles of naturals justice.9

Disputed handwriting or signatures of a person. Proof. Best way of proving disputed handwriting or signature of a person. Natural variations in the signatures of a person. Factors.1

Handwriting Expert, opinion of. Evidentiary value. Opinion of Handwriting Expert supported by reasons deserves preference if the opinion is in accord with the direct evidence.2

Appeal to Supreme Court. Suit for specific performance of agreement to sell property. Allegation of forged signatures of executant on agreement to sell and other contended documents. Handwriting Expert’s opinion and concurrent findings of all the three Courts below was that signatures were not forged. Valuable property being involved in the case and there being wild allegations of fraud, Supreme Court made an exercise of comparison of the signatures of the executant with the help of magnifying glass and found the reasonings advanced by the expert quite plausible and convincing. Concurrent finding of fact of the three lower forums regarding the genuineness of the agreement to sell also did not suffer from any legal infirmity, misreading or non-reading of evidence. Supreme Court declined interference in appeal.3

60. Facts bearing upon opinions of experts. Facts, not otherwise relevant, are relevant if they support or are inconsistent 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, is relevant.

61. Opinion as to hand-writing when relevant. When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it 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 hand-writing of A, a merchant in London.

B is merchant in Peshawar, who has written letters addressed to A and received letter purporting to be written by him. C is B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising him thereon.

The opinions of B, C and D on the question whether the letter is in the hand-writing of A are relevant, though neither B, C or D every saw A write.


COMMENTARY

Traced forgery becomes virtually identical in outward form with the genuine signature and unless a person is fully conversant with the signature and handwriting of the other, it is not safe to base conviction upon such opinion alone.4

Handwriting Expert’s opinion. Opinion of Handwriting Expert is nothing more than a mere opinion of the person / Handwriting Expert who purports to have issued the same and such opinion is not evidence until the person who has given it is brought before the Court and is subjected to the test of cross-examination.5

62. Opinion as to existence of right or custom, when relevant. When the Court has to form an opinion as to the existence of any general custom or right, the opinion, 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 custom 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 Article.

63. Opinion as to usages, tenets, etc., when relevant. 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 person having special means of knowledge thereon, are relevant facts.

64. Opinion on relationship when relevant. 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 means 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, 1869 (IV of 1869), or in prosecutions under section 494 or 495 of the Pakistan Penal Code (Act XLV of 1860).

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.

COMMENTARY

Family affairs. Best evidence. Best evidence regarding family affairs, would be that of a close relative of both the parties. Witness produced by plaintiff claiming that he was related to both parties yet he could not tell parentage of father of parties and admitted in cross-examination that his nephew was married to plaintiff’s daughter. Evidence of such witness did not inspire confidence and thus, same could not be relied upon.6

Witnesses deposing as to relationship of parties did not belong to the concerned village and were not on visiting terms with the relevant families. Such persons would not be presumed to have special means of knowledge as to the relationship of parties concerned. Concurrent findings of Courts below on such aspect of the case was eminently just, which neither suffered from any misreading of evidence nor any non-reading of evidence nor was in defiance of any rule of appraisement of evidence. Concurrent findings of Courts below were affirmed in circumstances.7

Conduct evidence. Opinion of a person expressed by conduct. Evidentiary value. Person whose opinion was sought to be given in evidence, must be proved to have special means of knowledge and then alone his opinion would be evidence. Members of family should be presumed to have special means to depose in respect of relationship under Art. 64, Qanun-e-Shahadat, 1984.8

65. Grounds of opinion when relevant. Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.

Illustration

An expert may give an account of experiments performed by him for the purpose of forming his opinion.

CHARACTER WHEN RELEVANT

66. In civil cases character to prove conduct imputed irrelevant. 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 insofar as such character appears from facts otherwise relevant.

67. In criminal cases previous good character relevant. In criminal proceedings the fact that the person accused is of a good character is relevant.

68. Previous bad character not relevant, except in reply. 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 Articles 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.

69. Character as affecting damages. 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 Articles 66, 67, 68 and 69 the word “character” includes both reputation and disposition: but, except as provided in Article 68, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation of disposition were shown.

CHAPTER IV
OF ORAL EVIDENCE

70. Proof of facts by oral evidence. All facts except the contents of documents, may be proved by oral evidence.

COMMENTARY

Evidence, oral and documentary. Misreading by Courts below. Effect. Three Courts below misread evidence on the question whether plaintiffs were daughters of vendors and failed to give proper consideration to material facts which had direct bearing on such question. Admitted piece of evidence viz. Nikahnamas of plaintiffs showed vendor as the father of plaintiffs; such document was corroborated by the statement of Pesh Imam who had performed Nikah of plaintiffs and such statement was further reinforced by Nikah Registrar who had registered Nikah of plaintiffs. Nothing was brought out in cross-examination to shake evidence of those witnesses who were independent witnesses. Birth certificates being not clear were rightly discarded by Courts below. If Birth certificates were to be excluded, documentary and oral evidence was sufficient for concluding that plaintiffs were daughters of vendor. No reliable evidence was produced in rebuttal. Evidence produced by vendees on such question did not inspire confidence. Veracity of statement of plaintiff about the pedigree of her father was not challenged in cross-examination. Plaintiffs were proved to be the daughters of vendor. Three Courts below having misread evidence on the question of relationship of plaintiffs with vendor had failed to give proper consideration to material facts. Findings of three Courts below on such question was set aside and plaintiffs were proved to be the daughters of vendors on basis of material on record.9

Proof of facts by oral evidence. Oral statement would not be of any value where documentary evidence in support of such fact being available was not produced.1

71. Oral evidence must be direct. 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 an other sense or 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 opinions of 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 treaties 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 further 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:

Provided further that, if a witness is dead, or cannot be found or has become incapable of giving evidence, or his attendance cannot be procured without an amount of delay or expense which under the circumstances of the case the Court regards as unreasonable, a party shall have the right to produce shahadaala-alshahadah by which a witness can appoint two witnesses to depose on his behalf, except in the case of Hudood.

COMMENTARY

Application of Art. 71, Qanun-e-Shahadat, 1984. Oral evidence means the evidence recorded by the Court. Article 71 of Qanun-e-Shahadat, 1984 applies to oral evidence which means the evidence recorded by the Court and does not apply to first information report lodged with the police.2

CHAPTER V
OF DOCUMENTARY EVIDENCE

72. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.

COMMENTARY

Arts. 72, 75, 78, 79. Court can consider a document admissible if a document produced is on record but Presiding Officer has not put exhibit number on the document. 2a

Evidence, admissibility of. Petitioner contended that copies of forms regarding sanction of plan were not public documents and could not have been exhibited without formal proof. Held: No objection having been raised when such documents were tendered in evidence and exhibited, no objection could be allowed to be raised at later stage in revision.

Non-production of original document before Settlement Authorities. Effect. Joint allotted of shop in dispute. Defendant claimed that plaintiff had surrendered his claim to the extent of his ½ share in shop in question and had executed deed of surrender in his favour. Such deed, however, having not been placed before Settlement Authorities, could not be verified and accepted after notice without recording the statement of plaintiff. Deed of surrender, therefore, had no value and on basis thereof, P.T.D. for the whole shop should not have been issued in favour of defendant alone. Permanent Transfer Deed issued in favour of defendant to the extent of plaintiff’s share in shop in question, was thus not valid.4

1.                  Document not exhibited

2.                  Contents of documents  

3.                  Execution and contents of documents

4.                  Admissibility of copy of original document

5.                  Failure to exhibit the original document

6.                  Failure to produce copy of the document in Court

7.                  Uncertified photocopy

8.                  Primary evidence‑‑­Primary evidence must be given weight over secondary evidence

9.                  Proof of transaction of sale

10.              Production of, during course of arguments

11.              Onus to prove

12.              Execution of document

13.              Talab-i‑Ishhad

14.              Registered document

15.              Gift‑Deed

16.              Document, proof of

17.              Primary evidence

18.              Power of attorney

19.              Rebutting contents of document by oral evidence

20.              Contents of a document

21.              Secondary evidence

22.              Proof of execution of document

23.              Gift

24.              Contents of document 

25.              Agreement of tenancy

26.              Oral and documentary evidence

27.              Corroboration

28.              Proof of Truth

29.              Proof of -documents

30.              Proof of execution of document

31.              Document

32.              Admissibility of copy of original do

33.              Agreement of sale

34.              Documentary evidence

35.              Agreement of lease

36.              Hire‑purchase system

37.              Proof of transaction of sale

38.              Oral and documentary evidence

1.         Document not exhibited Although documents not formally admitted in evidence and available on court’s record or elsewhere may, for the purpose of elucidation of certain facts, be looked into, yet the same by no stretch of imagination can be termed or regarded as “evidence” unless proved and exhibited at the trial in accordance with law—Since documents do not prove themselves and truth of the contents of the documents cannot be proved by merely producing the same for inspection of the court within the purview of Art. 2(c)(ii) of the Qanun-e-Shahadat, 1984, the document upon which a party relies must at first be placed before the court and then be got proved by calling the witness or witnesses. 2004 P Cr. L J 371

Once document is admitted, the same shall be read in evidence. 2001 C L C 1455

PLD 1969 SC 136 ref.

2.         Contents of documents  Article 75 of Qanun-e-Shahadat Order provides that the documents must be proved by primary evidence, except in the cases covered by Articles thereafter. Article 76 contemplates that secondary evidence can be given of the existence, condition and contents of a document, in cases enumerated therein. Reference can be made to clauses (a), (f) and (i) of the Article which deals with the cases where the original is in possession of any person out of reach of Court and not subject to process of Court or where the original document is a public document within the meaning of Article 85 or forms part of judicial record. Article 85 (1) (iii) and Article 85(3) of Qanun-e-Shahadat Order declare documents of public officers, legislative, judicial and executive, of any part of Pakistan or of a foreign country or documents forming part of judicial proceedings to be public documents, while Article 88 of Qanun-e-Shahadat Order permits the proof of public documents by producing, certified copies thereof. Article 89(5) (ibid) provides that public document of any other class in a foreign country can be proved by original or by a copy certified by the legal keeper, thereof, with the certificate under the seal of Notary Public or a Pakistani Consul or diplomatic agent that the copies are duly certified by the officers having legal custody of the original. Explanation to Article 87 contemplates that any officer, who by the ordinary course of official duty, is authorised to deliver such copies, shall be deemed to have custody of such documents within the meaning of said Article.

For proving existence, condition or contents of a document certified copies can be tendered in evidence, if the original is a public document within the meanings of Article 85, Qanun-e-Shahadat Order, 1984 or where the original document forms part of judicial record or document of public officers, legislative, judicial and executive, or of any part of Pakistan or. a foreign country. Likewise, certified copy of a document forming part of judicial proceedings can be produced to prove the document. Similarly, the certified copy of a public document of any other class in a foreign country can also be produced to prove the document, if-the copy is certified by the keeper thereof with a certificate under the seal of Notary Public or of a Pakistani Consul or diplomatic agent that the copies are duly certified by the officers, having legal custody of the original and upon proof of character of document according to law of foreign country. Article 90 of Qanun-e-Shahadat Order, 1984 raises a presumption as to the genuineness of certified copies which, in law, are declared to be admissible in evidence of a particular fact. It provides that the Court shall presume that any officer by whom such document purports to be signed and certified held, when he signed it, the official character which he claims in such document. P L D 1999 Lah. 535

  Where Record did not suggest that original document was lost or was not available or that same could not be produced without inordinate delay or that same was available on record of case in any other Court‑‑‑Effect‑‑‑Mere production of copy of original document, would not be enough to entitle party to suit to produce secondary evidence, unless conditions laid down in Art.76 of Qanun‑e‑Shahadat, 1984 for production of secondary evidence stood satisfied‑‑‑Documents being not certified copies of alleged original document, no reliance could be placed thereon. 1999 C L C 200

 Proof of execution of document would mean proof of writing / signatures / impression of the author and was not synonymous with proof of contents of document--­Burden to prove contents of document in addition to proof of execution was on beneficiary of that document, who was to lead primary/secondary/circumstantial internal evidence to prove truth of that document---Such requirements of law having not been met by quantum of evidence produced by defendant, sale-deed in question could not be deemed to have been proved by defendant---Mere fact that defendant had produced copy of registered sale-deed would not entitle him to claim ownership of property in question, when sufficient evidence to the contrary was available on record to prove dubious nature of such document and mysterious circumstances under which the same came into existence--­Documents in question were, thus, void and ineffective on inheritance rights of plaintiff. 1998 M L D 837

3.         Execution and contents of documents‑‑­Execution of document in question, having been denied plaintiff relying on such document was required to prove execution and contents of same but he failed to prove the same‑‑‑Document in question, was not confronted to defendant in cross‑examination, nor he was asked even a single word about his signatures‑‑‑Author of document was not produced‑‑‑No evidence was produced to the effect as to when and how document in question, was drafted, prepared and finally typed‑‑‑Attesting witnesses were not shown document in question, during their statement before Court nor they said anything With regard to its execution‑‑‑Document in question, being a private document should not have been received in evidence without proof of signature or and writing of persons alleged to have signed the same or the author thereof‑‑‑Such document could not be tendered in evidence through bare statement of counsel for the party and got exhibited‑‑‑Trial Court's sweeping remark that there was Ito rebuttal of evidence produced by plaintiff was not warranted for rebuttal was required only in those matters where evidence regarding particular fact in issue, if not rebutted would be presumed to have been proved‑‑‑Plaintiff, however, had failed to prove execution of agreement, there was, thus, no question of rebuttal‑‑‑Plaintiff was to succeed on the strength of his own evidence and not on the weakness of defendant's case‑‑‑Assertion as to execution of document being positive assertion, same was to have been proved by some evidence worthy of credence‑‑‑Execution of document in question, was not proved in circumstances. 1996 M L D 1819  PLD 1973 SC 160; PLD 1982 Lah. 20; 1982 CLC 1128; PLD 1990 Lah. 229 and PLD 1993 Lah. 303 rel.

  Contents of document must be proved by either primary or secondary evidence as per terms of Arts.72 to 76, Qanun‑e‑Shahadat, 1984‑‑‑Proof of "contents" of document was not proof of its authenticity or genuineness document must be proved under Art‑78, Qanun‑e­Shahadat by proof of signature and handwriting‑‑‑Genuineness or authenticity of document must be proved by any of the methods recognised by Qanun‑e‑Shahadat or by reference to its contents or other evidence on record which Court in its discretion considered to be sufficient proof of its authenticity or genuineness‑‑‑Defendants having admitted documents in question, proof thereof, was not necessary and in any event same would be deemed to have been sufficiently proved by admission of same in written statement. 1996 C L C 79 PLD 1991 SC 524 ref.

 Court cannot act on copies of documents where original had not been produced without any reason especially when person concerned was not confronted with those documents during cross‑examination. 1992 C L C 1304

     Where a document is admitted in evidence and duly exhibited, that' incident, in itself, does not constitute the proof of truth or veracity of the contents, though contents themselves simpliciter would thereby be proved and that may be all which is needed in a given case, for instance, where the document contains recitals or stipulations or conditions applicable to parties to a dispute, such as, an agreement, a deed inter parties or' other bilateral arrangement. When a document is produced through its author or in any other permissible mode and -exhibited in due course, the author or the witness producing it is open to cross-examination and the correctness of the contents may be questioned or denier] through cross-examination or other evidence, failing which even that could be deemed established. Likewise, the mere fact that a document has been duly proved and exhibited will not establish its relevancy, for relevancy is a concept of law arising in given facts. Similarly, relevancy and proof of a document while such in themselves are different in character, they, at the, same time, usually, do not involve any implication that either of them constitutes proof of correctness or veracity of a document, which must be separately established through oral evidence in an appropriate manner. Even where a document is admitted in evidence by consent, in any permissible mode, that circumstance constitutes only a waiver as to the admissibility thereof though admission in evidence, without reservations may also imply acceptance of correctness of contents. Relevancy, however, is always subject to the facts of a case and conditionalities of law. 1992 M L D 383

4.         Admissibility of copy of original document‑‑Photostat copy of original document not proved either by producing original document or by tendering certified copy thereof before Court, held, could not be received in evidence‑‑Where opposing party himself admitted contents of such photostat copy as correct while appearing in Court, objection regarding modes of proof of document by such party was no longer tenable. 1987 C L C 1159

To prove contents of documents, claimant is bound to produce primary or secondary evidence as per Arts. 72, 75, 78 & 79 of the Qanun‑e‑Shahadat, 1984, unless execution of the same is admitted by the opponent‑‑‑Neither the execution of notice of Talab‑i‑Ishhad had been proved nor the other party had admitted same in the written statement or during trial of the case or even before the Supreme Court‑‑‑If a ‑document had been produced on record in accordance with the relevant provisions of Qanun‑e­ Shahadat, but on account of an omission on the part of the Presiding Officer an exhibit number had not been marked on the same or the document had not been signed, .same ‑would not become inadmissible for much reason‑‑‑No other conclusion, can be drawn except that Talab‑i‑Ishhad had not been made in circumstances.  2001 SCMR 1651

Execution consists in signing a document written out, read over and understood by the person signing the same‑‑‑Execution can be proved by calling the person who has signed or has written the document or in whose presence the document has been signed or written or by calling Handwriting Expert who has examined the disputed signature‑‑‑ Execution can be proved by calling a person acquainted with the handwriting of a person who has signed or written the document‑‑‑Court can also compare the disputed signature or writing with some admitted signature or writing‑‑‑Even circumstantial evidence can be adduced in proof of execution of the document. 2002CLC1244 

 

5.         Failure to exhibit the original document‑‑‑Disputed document was produced three times before the Trial Court, the same was examined each time and returned to the person producing the same‑‑­Effect‑‑‑Where the Trial Court did not exhibit the original document and the same was returned each time, party producing the document was not at fault in circumstances. 2002 C L C 1244  1993 SCMR 462 ref.

6.          Failure to produce copy of the document in Court‑‑‑Plaintiff denied execution of gift deed in favour of defendant‑‑‑Neither the gift deed was produced before the Trial Court nor any oral evidence in support of the execution of the deed was produced‑‑‑Trial Court decreed the suit but the Lower Appellate Court dismissed the suit on the ground that the disputed gift deed was a registered document‑‑‑Validity‑‑‑Mere fact that the document was registered did not absolve a person seeking its benefit from proving the same as a fact when its execution was disputed‑‑‑Lower Appellate Court had acted without lawful authority while dismissing the suit‑‑‑Judgment passed by Lower Appellate Court was perverse and was not supported by any evidence on record‑‑‑High Court set aside the judgment passed by Lower Appellate Court and that of the Trial Court was restored. 2001 M L D 1511   1993 SCMR 462 and 1999 SCMR 1245 ref.

7.          Uncertified photocopy---Such document is not admissible in evidence under the provisions of Qanun-e­-Shahadat, 1984. 2001 Y L R 1103

8.         Primary evidence‑‑­Primary evidence must be given weight over secondary evidence. 2000 Y L R 646

9.         Proof of transaction of sale‑Certified copy of registered sale‑deed produced in evidence‑Defendant not disputing sale tran­saction nor genuineness of certified copy of sale‑deed‑Production of certified copy of sale‑deed, held, could not be objected to, in absence of plea of no sale and of forgery of certified copy of sale‑deed. P L D 1986 Peshawar 1

10.       Production of, during course of arguments  Document produced on day of arguments un‑supported by affidavit, held, could not be looked into as affected person would have no opportunity to rebut contents of same. PL D 1986 Quetta 148

11.       Onus to prove Principal onus of proving execution of the agreement was upon the plaintiff and the evidence in that respect had to be strong, consistent and cogent. Where specific performance of the agreement was sought by the plaintiff, non-appearance of the defendant in the witness-box was of not much consequence, as the initial burden of proof was upon the plaintiff. 2002 C L C 22 PLD 1979 SC 890; 1991 CLC 1783 1991 SCMR 496 and 1992 SCMR 1744 ref.

Document admitted in evidence without objection by the other party is sufficient proof of signature and its contents. 2001 C L C 1455 PLD 1972 Pesh. 175 ref.

12.       Execution of document Opinion of Handwriting Expert whether binding on Court‑‑‑Even if the opinion of Handwriting Expert is available on record, the same is a weak type of evidence and scarcely deserves serious consideration because the Courts of law are not under legal obligation to base their findings merely on Expert's opinion; there must be positive evidence available on record to prove a particular document.

Execution consists in signing a document written out, read over and understood by the person signing the same‑‑‑Execution can be proved by calling the person who has signed or has written the document or in whose presence the document has been signed or written or by calling Handwriting Expert who has examined the disputed signature‑‑‑ Execution can be proved by calling a person acquainted with the handwriting of a person who has signed or written the document‑‑‑Court can also compare the disputed signature or writing with some admitted signature or writing‑‑‑Even circumstantial evidence can be adduced in proof of execution of the document. 2002CLC1244 

13.       Talab-i‑Ishhad, To prove contents of documents, claimant is bound to produce primary or secondary evidence as per Arts. 72, 75, 78 & 79 of the Qanun‑e‑Shahadat, 1984, unless execution of the same is admitted by the opponent‑‑‑Neither the execution of notice of Talab‑i‑Ishhad had been proved nor the other party had admitted same in the written statement or during trial of the case or even before the Supreme Court‑‑‑If a ‑document had been produced on record in accordance with the relevant provisions of Qanun‑e­Shahadat, but on account of an omission on the part of the Presiding Officer an exhibit number had not been marked on the same or the document had not been signed, .same ‑would not become inadmissible for much reason‑‑‑No other conclusion, can be drawn except that Talab‑i‑Ishhad had not been made in circumstances.  2001 SCMR 1651

14.       Registered document‑‑‑Where the execution of a registered document was not disputed by any one, its certified copy was admissible in evidence. 2001 C L C 1658

15.       Gift‑Deed Execution of gift deed was disputed‑‑‑Failure to produce copy of the document in Court‑‑‑Plaintiff denied execution of gift deed in favour of defendant‑‑‑Neither the gift deed was produced before the Trial Court nor any oral evidence in support of the execution of the deed was produced‑‑‑Trial Court decreed the suit but the Lower Appellate Court dismissed the suit on the ground that the disputed gift deed was a registered document‑‑‑Validity‑‑‑Mere fact that the document was registered did not absolve a person seeking its benefit from proving the same as a fact when its execution was disputed‑‑‑Lower Appellate Court had acted without lawful authority while dismissing the suit‑‑‑Judgment passed by Lower Appellate Court was perverse and was not supported by any evidence on record‑‑‑High Court set aside the judgment passed by Lower Appellate ' ;;Court and that of the Trial Court was restored. 2001 M L D 1511

 1993 SCMR 462 and 1999 SCMR 1245 ref.

16.        Document, proof of‑‑Failure to produce author of the document in Trial Court‑‑‑Such failure not objected to at the relevant time‑‑‑Effect‑‑‑Where the document was received in evidence without any objection, no exception could be taken to the said document merely for the reason that the author of the document was not examined. 2001 Y L R 51

PLD 1969 SC 136; 1982 SCMR 358 and 1987 CLC 1103 ref.

 When any transaction had been drawn and executed in form of document, no oral evidence could be allowed to be produced to prove same unless it was shown that original document had been lost or could not be produced or procured and that, too, after obtaining permission from the Court for production of secondary evidence. 2000 M L D 1653

17.       Primary evidence Primary evidence must be given weight over secondary evidence. 2000 Y L R 646

18.       Power of attorney Original power of attorney was in the custody of the attorney and‑after' his death the same went into the custody of his legal heirs‑‑‑Defendants/legal heirs denied possession of the original power of attorney and failed to produce the same in that Trial Court‑‑‑Effect‑‑‑Where original power ­of attorney was not produced, such document could be proved by secondary evidence under the provisions of Arts. 72 & 76 of Qanun-e-­Shahadat, 1984. 2000 Y L R 2256

19.       Rebutting contents of document by oral evidence Where there was allegation of fraud, contents of document be rebutted by oral evidence. 2000 Y L R 2256 otherwise Mere oral assertion was not sufficient to rebut documentary evidence.  1988 SCMR 758

20.       Contents of a document contents of documents may be proved either by primary or secondary evidence. Article 75 of Qanun-e-Shahadat Order provides that the documents must be proved by primary evidence, except in the cases covered by Articles thereafter. Article 76 contemplates that secondary evidence can be given of the existence, condition and contents of a document, in cases enumerated therein. Reference can be made to clauses (a), (f) and (i) of the Article which deals with the cases where the original is in possession of any person out of reach of Court and not subject to process of Court or where the original document is a public document within the meaning of Article 85 or forms part of judicial record. Article 85 (1) (iii) and Article 85(3) of Qanun-e-Shahadat Order declare documents of public officers, legislative, judicial and executive, of any part of Pakistan or of a foreign country or documents forming part of judicial proceedings to be public documents, while Article 88 of Qanun-e-Shahadat Order permits the proof of public documents by producing, certified copies thereof. Article 89(5) (ibid) provides that public document of any other class in a foreign country can be proved by original or by a copy certified by the legal keeper, thereof, with the certificate under the seal of Notary Public or a Pakistani Consul or diplomatic agent that the copies are duly certified by the officers having legal custody of the original. Explanation to Article 87 contemplates that any officer, who by the ordinary course of official duty, is authorised to deliver such copies, shall be deemed to have custody of such documents within the meaning of said Article.

For proving existence, condition or contents of a document certified copies can be tendered in evidence, if the original is a public document within the meanings of Article 85, Qanun-e-Shahadat Order, 1984 or where the original document forms part of judicial record or document of public officers, legislative, judicial and executive, or of any part of Pakistan or. a foreign country. Likewise, certified copy of a document forming part of judicial proceedings can be produced to prove the document. Similarly, the certified copy of a public document of any other class in a foreign country can also be produced to prove the document, if-the copy is certified by the keeper thereof with a certificate under the seal of Notary Public or of a Pakistani Consul or diplomatic agent that the copies are duly certified by the officers, having legal custody of the original and upon proof of character of document according to law of foreign country. Article 90 of Qanun-e-Shahadat Order, 1984 raises a presumption as to the genuineness of certified copies which, in law, are declared to be admissible in evidence of a particular fact. It provides that the Court shall presume that any officer by whom such document purports to be signed and certified held, when he signed it, the official character which he claims in such document. P L D 1999 Lahore 535

21.       Secondary evidence Where Record did not suggest that original document was lost or was not available or that same could not be produced without inordinate delay or that same was available on record of case in any other Court‑‑‑Effect‑‑‑Mere production of copy of original document, would not be enough to entitle party to suit to produce secondary evidence, unless conditions laid down in Art.76 of Qanun‑e‑Shahadat, 1984 for production of secondary evidence stood satisfied‑‑‑Documents being not certified copies of alleged original document, no reliance could be placed thereon. 1999 C L C 200

22.       Proof of execution of document Proof of execution of document would mean proof of writing/signatures/impression of the author and was not synonymous with proof of contents of document--­Burden to prove contents of document in addition to proof of execution was on beneficiary of that document, who was to lead primary/secondary/circumstantial internal evidence to prove truth of that document---Such requirements of law having not been met by quantum of evidence produced by defendant, sale-deed in question could not be deemed to have been proved by defendant---Mere fact that defendant had produced copy of registered sale-deed would not entitle him to claim ownership of property in question, when sufficient evidence to the contrary was available on record to prove dubious nature of such document and mysterious circumstances under which the same came into existence--­Documents in question were, thus, void and ineffective on inheritance rights of plaintiff. 1998 M L D 837

 PLD 1997 Lah. 633; PLD 1954 Lah. 480; PLD 1993 Kar. 26; 1992 CLC 1459; PLD 1961 Dacca 140; PLD 1963 (W.P.) Kar. 825; PLD 1963 SC 163; PLD 1980 Lah. 145 and 1996 MLD 1064 ref.

23.       Gift Endorsement made by Registrar on questioned document would not prove that such document was executed by donor in favour of donee‑‑‑Contents of gift‑deed and constituents of gift must be proved in consonance with provisions of Qanun‑e‑Shahadat and rules of gifts under Muhammadan Law. P L D 1997 Lahore 633

PLD 1950 Pesh. 45; 1994 MLD 283; 1994 MLD 467; PLD 1954 Dacca 134; 1991 CLC Note 75 at p.59; PLD 1977 Lah. 729; PLD 1977 Kar. 688; 1991 CLC Note 74 at p.59 ref.

24.       Contents of document  Contents of document must be proved by either primary or secondary evidence as per terms of Arts.72 to 76, Qanun‑e‑Shahadat, 1984‑‑‑Proof of "contents" of document was not proof of its authenticity or genuineness document must be proved under Art‑78, Qanun‑e­Shahadat by proof of signature and handwriting‑‑‑Genuineness or authenticity of document must be proved by any of the methods recognised by Qanun‑e‑Shahadat or by reference to its contents or other evidence on record which Court in its discretion considered to be sufficient proof of its authenticity or genuineness‑‑‑Defendants having admitted documents in question, proof thereof, was not necessary and in any event same would be deemed to have been sufficiently proved by admission of same in written statement. 1996 C L C 79

PLD 1991 SC 524 ref.

25.       Agreement of tenancy Signatures of petitioner on alleged agreement of tenancy were falsified not only by the evidence of Handwriting Expert produced by the respondent himself but also by the evidence of witnesses which in fact supported contention of petitioner that neither executant nor one of the witnesses was present at the time when document in question, was allegedly executed‑‑‑Agreement of tenancy was, thus, not proved in circumstances. 1995 M L D 298

26.       Oral and documentary evidence ‑‑‑ Oral evidence could not stand against documentary evidence adduced in a case‑‑‑Plaintiffs could not establish their claim about being in adverse possession of property in question, through oral evidence against documentary evidence to the contrary produced by the defendants. PLD 1993 Karachi 369

Pedigree‑table produced in proof of line of succession by plaintiff Defendant‑producing oral evidence in rebuttal of same‑‑‑Effect‑‑‑Oral evidence could only dislodge the belief created by document in the event of its being of a reliable nature having the force enough to shake the solemnity of the document‑‑‑Where oral evidence in rebuttal of pedigree‑table viz. documentary evidence, was worthless, contents of pedigree‑table would be deemed to have been proved. 1992 C L C 1263 

27.       Corroboration Documentary evidence corroborated by statement of an independent witness was sufficient proof for ownership of plaintiffs plot. 1993 M L D 643

Court cannot act on copies of documents where original had not been produced without any reason especially when person concerned was not confronted with those documents during cross‑examination. 1992 C L C 1304

 

28.       Proof of Truth Where a document is admitted in evidence and duly exhibited, that' incident, in itself, does not constitute the proof of truth or veracity of the contents, though contents themselves simpliciter would thereby be proved and that may be all which is needed in a given case, for instance, where the document contains recitals or stipulations or conditions applicable to parties to a dispute, such as, an agreement, a deed inter parties or' other bilateral arrangement. When a document is produced through its author or in any other permissible mode and -exhibited in due course, the author or the witness producing it is open to cross-examination and the correctness of the contents may be questioned or denier] through cross-examination or other evidence, failing which even that could be deemed established. Likewise, the mere fact that a document has been duly proved and exhibited will not establish its relevancy, for relevancy is a concept of law arising in given facts. Similarly, relevancy and proof of a document while such in themselves are different in character, they, at the, same time, usually, do not involve any implication that either of them constitutes proof of correctness or veracity of a document, which must be separately established through oral evidence in an appropriate manner. Even where a document is admitted in evidence by consent, in any permissible mode, that circumstance constitutes only a waiver as to the admissibility thereof though admission in evidence, without reservations may also imply acceptance of correctness of contents. Relevancy, however, is always subject to the facts of a case and conditionalities of law. 1992 M L D 383

A I R 1967 Cal. 191; P L D 1969 SC 477; 1981 C L C 605; Abdul Razzak v. Fatima Bai.1981 C L C 1083 and P L D 1982 Lah. 20 ref.

29.       Proof of -documents---No reliance could be placed on document not proved in accordance with law. 1991 M L D 1182 But No rule of law requires that a particular fact must be proved through production of documents only. 1990 C L C 729

30.       Proof of execution of document Appellate Court thoroughly dealt with the entire evidence and then came to the conclusion that existence of document was not proved‑‑Appellate Court was fully vested with the jurisdiction to draw inferences of facts from the evidence on record and the inferences so drawn were perfectly justified on record‑‑Appellate Court had not committed any material irregularity and illegality in passing the judgment and decree which called for no interference by High Court under S.115, C.P.C.‑‑Petition for leave to appeal against order of High Court was refused. 1989 S C M R 1281

31.       Document Where a document which had been tendered to serve as a foundation was found to be doubtful, the entire edifice built thereon would fall to the ground. 1989 C L C 698

Document prior in date, held, would have precedence over documents subsequent in date relating to transaction.

 1986 C L C 770

Oral evidence, held, would have no value in face of documentary evidence. 1986 C L C 770

32.       Admissibility of copy of original document‑‑Photostat copy of original document not proved either by producing original document or by tendering certified copy thereof before Court, held, could not be received in evidence‑‑Where opposing party himself admitted contents of such photostat copy as correct while appearing in Court, objection regarding modes of proof of document by such party was no longer tenable. 1987 C L C 1159

33.       Agreement of sale Original agreement of sale was stated to have been lost but alleged loss not proved‑‑Secondary evidence to prove such agreement, held, would not be admissible, especially when no attempt was made to produce stamp vendor to prove that stamp paper was really purchased for execution of sale agreement. 1987 C L C 1159

34.       Documentary evidence‑‑Author of receipt, not summoned to prove contents and genuineness of document‑‑Effect‑‑Although document was not proved in strict legal sense same, held, should be taken to be proved for failure of objection to its admissibility by adversary or his counsel‑‑Document objected to, at time of production, however, renders same unproved it that was not proved in accordance with requirements of law.

 1986 C L C 288

P L D 1969 S C 136; P L D 1973 S C 160 and P L D 1969 S C 477 ref.

35.       Agreement of lease‑‑In absence of confrontation of lessee with such agreement, same, held, would have no effect on rights of such lessee. 1986 C L C 770

36.       Hire‑purchase system‑‑Notices to defaulting purchasers‑‑Production of‑‑Where company had issued notices to defaulters, production thereof, in Court, held, would not be responsibility of agent, who was seeking relief against such company. 1986 M L D 1404

37.       Proof of transaction of sale‑Certified copy of registered sale‑deed produced in evidence‑Defendant not disputing sale tran­saction nor genuineness of certified copy of sale‑deed‑Production of certified copy of sale‑deed, held, could not be objected to, in absence of plea of no sale and of forgery of certified copy of sale‑deed. P L D 1986 Peshawar 1

38.       Oral and documentary evidence Where oral evidence of parties was evenly placed but such evidence when read in conjunction with documentary evidence, supported possession of a party claim of possession of such party, held, would stand established. 1986 C L C 2958

Documentary evidence, if not disputed, must be given preference/credence over oral testimonies, which are otherwise vague and also shattered in cross-examination. PLD 2004 Lah. 115

73. Primary evidence. “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 or 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.

COMMENTARY

To prove contents of documents, claimant is bound to produce primary or secondary evidence unless execution of the same is admitted by the opponent.5

Primary evidence Although R.L.II was not properly exhibited in accordance with the provisions of Qanun-e-Shahadat, 1984, yet both the Courts below were justified to consider original copy of R.L.II---Where no jurisdictional defect was pointed out and there was no legal infirmity, High Court declined to interfere with the judgments and decrees passed by the Courts below---High Court took serious note of the fact that cases of Government were decided against Government as the public functionaries failed to pursue the, matters diligently and efficiently, consequently public exchequer was looted by cunning people with the connivance of the subordinates---High Court directed the Provincial Government to constitute a Committee to probe into the matter---Revision was dismissed accordingly. 2001 Y L R 1874 

PLD 1960 SC 113; 1988 CLC 142; PLD 1971 SC 762; 1993 CLC 2482; PLD 1994 - SC 336; 1994 CLC 873; 1982 CLC 1120 and 1993 SCMR 1137 ref.

Primary evidence must be given weight over secondary evidence.  2000 Y L R 646

Primary and secondary evidence‑‑­Primary and best evidence should be produced‑‑‑Production of Photostat copy and that, too, alongwith written‑statement, had no evidentiary value at all and would deserve to be kept out of consideration. 2000 M L D 901

Original notice of Talb‑i‑Ishhad‑‑ Where such notice was tendered by vendee himself, its genuineness and contents mentioned therein were admitted to be true and correct for all intents and purposes ‑‑‑Vendee could not raise objection to such document as the same was primary document. 2002 S C M R 219

 Failure to produce copy of the document in Court‑‑‑Plaintiff denied execution of gift deed in favour of defendant‑‑‑Neither the gift deed was produced before the Trial Court nor any oral evidence in support of the execution of the deed was produced‑‑‑Trial Court decreed the suit but the Lower Appellate Court dismissed the suit on the ground that the disputed gift deed was a registered document‑‑‑Validity‑‑‑Mere fact that the document was registered did not absolve a person seeking its benefit from proving the same as a fact when its execution was disputed‑‑‑Lower Appellate Court had acted without lawful authority while dismissing the suit. 2001 M L D 1511 1993 SCMR 462 and 1999 SCMR 1245 ref.

 Notice of Talb‑i‑Ishhad Producing of such notice by vendee ‑Where such notice was tendered by vendee himself, its genuineness and contents mentioned therein were admitted to be true and correct for all intents and purposes ‑‑‑Vendee could not raise objection to such document as the same was primary document. 2002 S C M R 219

Failure to produce copy of the document  Mere fact that the document was registered did not absolve a person seeking its benefit from proving the same as a fact when its execution was disputed 2001 M L D 1511

Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others 1993 SCMR 462 and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 ref.

Primary evidence Contention of the defendant was that both the Courts below had relied on a document which was not properly exhibited--Although R.L.II was not properly exhibited in accordance with the provisions of Qanun-e-Shahadat, 1984, yet both the Courts below were justified to consider original copy of R.L.II---Where no jurisdictional defect was pointed out and there was no legal infirmity2001 Y L R 1874 

Zafar-ul-Ahsan -v. The Republic of Pakistan PLD 1960 SC 113; Gul Ahmad Khan and others v. Muhammad Nawaz and others 1988 CLC 142; Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762; Muhammad Shafi v. L.D.A. 1993 CLC 2482; Waris Khan and others v. Col. Humayun Shah and 41 others PLD 1994 - SC 336; Messrs Nawab Brothers Ltd. v. Messrs Hand Tools Limited 1994 CLC 873; Ms. Gul Bano and 4 others v. Muhammad Ramzan and another 1982 CLC 1120 and Mian Tajammal Hussain v. Life Insurance Corporation of Pakistan 1993 SCMR 1137 ref.

Non‑exhibiting the document which otherwise was admissible in evidence was merely an irregularity and would not render such a document as inadmissible in evidence. 2001CLC1115

Mian Tajammal Hussain v.. State Life Insurance Corporation of Pakistan 1993 SCMR 1137; Pribhadinomal Methumal v. Mt. Chuti AIR 1933 Sindh 379 and Mahmood Akhtar Kiani v. Azad Jammu and Kashmir Government 1998 SCR 310 ref.

Primary and secondary evidence Primary and best evidence should be produced‑‑‑Production of photostat copy and that, too, alongwith written‑statement, had no evidentiary value at all and would deserve to be kept out of consideration. 2000 M L D 901

Primary evidence must be given weight over secondary evidence. 2000 Y L R 646

74. Secondary evidence. --- “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.

COMMENTARY

Report of Magistrate would be enough to justify attraction of Art. 76(c) for purpose of production of secondary evidence in terms of Art. 74.4a

Qanun-e-Shahadat Order is applicable to Provincially Administered Tribal Areas including Malakand Division. Murder cases cannot be decided on basis of Qasamat as it is not recognized as a mode of evidence under Qanun-e-Shahadat Order. Courts in PATA should follow provisions of Qanun-e-Shahadat Order, particularly Art. 17, in their true perspective.

Scope---Where existence of original document was not in issue and same was not available, the only course available for Trial Court was to allow secondary evidence. P L D 1999 Lahore 465

 Essentials-- Building Control Authority restraining owners from constructing such building in violation of approved plan---Owners submitting two letters from concerned Ministers to officials of Authority asking them not to restrain owner in raising construction and that approval would be accorded thereafter---Construction of building was, thus, completed in violation of approved plan---Owners alongwith two Ministers were challaned and their case sent to Ehtesab Bench---Original letters purported to be sent by Ministers were not traceable---Prosecution took no pains to fulfil requirements of Arts. 74 & 76, Qanun-e-Shahadat, 1984 for producing secondary evidence---None of prosecution witnesses claimed to have seen original letters---Photo copies of such letters would neither qualify as secondary evidence nor such letters fell within relevant categories specified in Art.74, Qanun-e-Shahadat, 1984--Article 76, Qanun-e-Shahadat, 1984 has to be construed for purposes of admissibility of secondary evidence while Art.74, Qanun-e-Shahadat, 1984 would determine whether particular piece of evidence would qualify as secondary evidence---Person purported to have received such letters denied existence thereof---No evidence in rebuttal was produced by prosecution to prove that letters in fact were received by the concerned person---Unless loss of original was categorically proved, secondary evidence could not be led---Entire evidence relating to such letters was based on hearsay which could not be relied upon---Accused Ministers to whom such letters were attributed, thus, could not be convicted when neither original letters were placed on record nor secondary evidence relating thereto was led/produced, therefore, they were acquitted.-- P L D 1998 Kar. 86

Primary evidence being not available, petitioner filed application for leading secondary evidence which application was dismissed by Courts below‑‑‑Petitioner having been deprived of opportunity to lead secondary evidence on erroneous considerations of law as well as of facts, High Court in exercise of Constitutional jurisdiction set aside order of Courts below and petitioner was held entitled to lead secondary evidence and also to get examined those witnesses who were already mentioned in the list of witnesses.‑‑  1997 C L C 1327

Secondary evidence, Record of Court was burnt and file was reconstructed in pursuance of order passed by High Court‑‑‑No objection was raised at the time of reconstruction of file regarding genuineness of agreement to sell‑‑­Defendant did not object to the admissibility of photocopy of document in question, before Appellate Court‑‑‑Such point was neither embodied in the memo. of appeal nor actually raised before Appellate Court and for that reason was not dealt with in the impugned judgment of that Court‑‑­Such point could not be allowed to be raised for the first time at revisional stage. 1993 C L C 257

Law having permitted production of secondary evidence, Trial Court's order in permitting plaintiff to lead secondary evidence, did not suffer from any legal infirmity‑‑‑Legality of order of Trial Court permitting production of secondary evidence having not been challenged in appeal before Appellate Court below, same could not be challenged in revision before High Court. 1993 C L C 2348

 Appellant allegedly stood surety for lessees who got lease from Forest Department‑‑On failure of lessees to pay lease money, notice was issued to appellant by respondents for payment of lease money on behalf of--lessees‑‑Respondents only producing secondary evidence in respect of security bond allegedly signed by appellant and making an oral explanation for loss of original document which they failed to prove‑‑Respondents also unable to establish that appellant had been responsible for misplacing original document‑‑No evidence available about contents of said documents either‑‑Held, security bond not been proved to have been lost or produced in Court,  secondary evidence could not be tendered about existence or contents thereof‑‑In absence of security bond no liability could be imposed upon appellant and notice issued to appellant for recovery, therefore, had no basis in fact or law as recovery of amount on basis of security bond which was not proved, was baseless and illegal‑‑Judgment and decree of Courts below against appellant set aside. 1986 M L D 1500

P L D 1961 B J 96 ref.

 Party in proof of age of minors had filed photostat copies of certificate relating to prevention doses/injections administered to the minors and birth certificate‑‑‑Copy of certificate relating to prevention doses/ injections was not certified by the concerned person but was certified by subject specialist/teacher‑‑‑Birth certificate was issued by a person who had not disclosed his name or his designation‑‑‑ Photostat copies of such documents could not be read in evidence. 2002 M L D 1213

             Effect of non‑production of document would be that party could be allowed to prove the same by producing secondary evidence. 2002 M L D 1406

            Where the execution of a registered document was not disputed by any one, its certified copy was admissible in evidence. 2001 C L C 1658

Copy,  Plaintiff denied execution of gift deed in favour of defendant‑‑‑Neither the gift deed was produced before the Trial Court nor any oral evidence in support of the execution of the deed was produced‑‑‑Trial Court decreed the suit but the Lower Appellate Court dismissed the suit on the ground that the disputed gift deed was a registered document‑‑‑Validity‑‑‑Mere fact that the document was registered did not absolve a person seeking its benefit from proving the same as a fact when its execution was disputed‑‑‑Lower Appellate Court had acted without lawful authority while dismissing the suit‑‑‑Judgment passed by Lower Appellate Court was perverse and was not supported by any evidence on record‑‑‑High Court set aside the judgment passed by Lower Appellate Court and that of the Trial Court was restored. 2001 M L D 1511

Attested copy of the mutation in respect of the suit land, relied upon by the plaintiff having been admitted and read into evidence both by the Trial Court and Appellate Court without any objection by the defendants, same could not be excluded from evidence merely because it was not exhibited‑‑‑Non‑exhibiting the document which otherwise was admissible in evidence was merely an irregularity and would not render such a document as inadmissible in evidence. 2001CLC1115 1993 SCMR 1137 AIR 1933 Sindh 379 and 1998 SCR 310 ref.

Certified copy of public document though was admissible per se and could be received in evidence, but where certified copy of a private document forming part of public record was deemed to be produced in evidence and the execution as well as existence of document was denied, then secondary evidence by way of certified copy could not be received unless existence of original was proved, loss and destruction of original allowed and established or the original being in possession of the other side had not been produced by the other side‑‑‑Original document could resolve controversy as to admissibility of document at the time when document was tendered. 2000 M L D 1653

Production of photostat copy and that, too, alongwith written‑statement, had no evidentiary value at all and would deserve to be kept out of consideration. 2000 M L D 901

Registered document‑‑‑Where the execution of a registered document was not disputed by any one, its certified copy was admissible in evidence. 2001 C L C 1658

Gift  Plaintiff denied execution of gift deed in favour of defendant‑‑‑Neither the gift deed was produced before the Trial Court nor any oral evidence in support of the execution of the deed was produced‑‑‑Trial Court decreed the suit but the Lower Appellate Court dismissed the suit on the ground that the disputed gift deed was a registered document‑‑‑Validity‑‑‑Mere fact that the document was registered did not absolve a person seeking its benefit from proving the same as a fact when its execution was disputed‑‑‑Lower Appellate Court had acted without lawful authority while dismissing the suit‑‑‑Judgment passed by Lower Appellate Court was perverse and was not supported by any evidence on record‑‑‑High Court set aside the judgment passed by Lower Appellate ' ;;Court and that of the Trial Court was restored. 2001 M L D 1511

Production of oral and documentary evidence Production of documentary evidence in form of primary evidence was essential for just decision‑‑‑Oral evidence of witnesses could not be of any value without producing available documentary evidence‑‑‑When any transaction had been drawn and executed in form of document, no oral evidence could be allowed to be produced to prove same unless it was shown that original document had been lost or could not be produced or procured and that, too, after obtaining permission from the Court for production of secondary evidence. 2000 M L D 1653

Certified copy of public document Certified copy of public document though was admissible per se and could be received in evidence, but where certified copy of a private document forming part of public record was deemed to be produced in evidence and the execution as well as existence of document was denied, then secondary evidence by way of certified copy could not be received unless existence of original was proved, loss and destruction of original allowed and established or the original being in possession of the other side had not been produced by the other side‑‑‑Original document could resolve controversy as to admissibility of document at the time when document was tendered. 2000 M L D 1653

Where existence of original document was not in issue and same was not available, the only course available for Trial Court was to allow secondary evidence. P L D 1999 Lahore 465

Talb‑i‑Ishhad" Sending of photo copy of the original notice ‑ Validity‑‑‑Vendee under the provision of S.13(3), North‑West Frontier Province Pre‑emption Act, 1987 has, to be served with original notice of "Talb‑i‑Ishhad"‑‑‑Photo copy could. not be treated as original ‑‑Where the pre‑emptor retained the original notice with himself and sent photo copy of the same to the vendee, Lower Appellate Court dismissed the suit of the pre‑emptor ‑‑‑Suit was rightly dismissed for want of non‑compliance of S.13(3), North‑West Frontier Province  Pre-emption Act, 1987. 2000 C L C 336

E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; PLD 1978 SC (AJ&K) 37 and E.A. Evans v. Muhammad Ashraf NLR 1979 (Civil) 178 ref.

Secondary evidence Primary evidence being not available, petitioner filed application for leading secondary evidence which application was dismissed by Courts below‑‑‑Petitioner having been deprived of opportunity to lead secondary evidence on erroneous considerations of law as well as of facts, High Court in exercise of Constitutional jurisdiction set aside order of Courts below and petitioner was held entitled to lead secondary evidence and also to get examined those witnesses who were already mentioned in the list of witnesses.‑ 1997 C L C 1327

Contents of document Proof of "contents" of document was not proof of its authenticity or genuineness document must be proved under Art‑78, Qanun‑e­Shahadat by proof of signature and handwriting‑‑‑Genuineness or authenticity of document must be proved by any of the methods recognised by Qanun‑e‑Shahadat or by reference to its contents or other evidence on record which Court in its discretion considered to be sufficient proof of its authenticity or genuineness‑‑‑Defendants having admitted documents in question, proof thereof, was not necessary and in any event same would be deemed to have been sufficiently proved by admission of same in written statement. 1996 C L C 79 PLD 1991 SC 524 ref.

Plaintiff had placed original document on record of Trial Court‑‑‑Record of Court was burnt and file was reconstructed in pursuance of order passed by High Court‑‑‑No objection was raised at the time of reconstruction of file regarding genuineness of agreement to sell‑‑­Defendant did not object to the admissibility of photocopy of document in question, before Appellate Court‑‑‑Such point was neither embodied in the memo. of appeal nor actually raised before Appellate Court and for that reason was not dealt with in the impugned judgment of that Court‑‑­Such point could not be allowed to be raised for the first time at revisional stage. 1993 C L C 257

Secondary evidence‑‑Production of Law having permitted production of secondary evidence, Trial Court's order in permitting plaintiff to lead secondary evidence, did not suffer from any legal infirmity‑‑‑Legality of order of Trial Court permitting production of secondary evidence having not been challenged in appeal before Appellate Court below, same could not be challenged in revision before High Court. 1993 C L C 2348

 Admissibility of document‑‑Objection to‑‑Admissibility of a document on ground that it was not duly stamped, cannot be allowed to be questioned after document was admitted without any such objection. 1989 M L D 4906

Ejectment of tenant‑‑Tenant setting up plea of agreement to sell, in his evidence‑‑Evidence relating to such agreement contradictory in nature‑‑Tenant in his statement before Court stating agreement to sell, and receipt of earnest money, to be in writing‑‑Neither original documents produced in Court nor secondary evidence relating thereto produced‑‑Effect‑‑Tenant, held, failed in establishing plea as to agreement to sell and payment made there-under‑‑Tenant's suit for specific performance of agreement to sell also failed‑‑Landlord was not restrained from pursuing the ejectment application during pendency of suit‑‑Ejectment application having been rightly decided by Rent Controller, High Court declined to interfere in its appellate jurisdiction . 1988 C L C 131

Photocopy of award  It must be shown in evidence that the photograph of a document is a copy of original document. Unless that is proved such document cannot be admitted in evidence. The provisions of secondary evidence are incorporated in section 63 of the Evidence Act and Article 74 of the Qanun‑e‑Shahadat. As the award or its certified copy was not filed, therefore, the petitioners even if they were served cannot be penalised as the application for setting aside the award on the grounds stated in section 30 of Arbitration Act cannot be made unless it is filed under section 14(2), Arbitration Act, 1940 and the Court shall thereupon give notice to the parties of the filing of award.

 If an award or its copy is in fact filed in Court by a party, it is not a valid filing under section 14(2) unless the party has the authority of the arbitrators or umpire. Therefore, the award was not validly filed in Court as required under law and the proceedings could not be conducted by the subordinate Court as has been done by it in the present case, because the period of limitation runs from the date of service of notice of filing of the award. In the absence of any award the proceedings under the Arbitration Act could not be done and as such the illegality committed by the trial Court is apparent on record which can be interfered with under section 115, C . P. C . 1988 C L C 1583

Secondary evidence, admissibility of Where non‑availability of original document had not been established, copy of such document as secondary evidence, held, would not be admissible in evidence particularly when such copy itself appeared to be of doubtful character. 1987 C L C 521

 Agreement of sale  Original agreement of sale was stated to have been lost but alleged loss not proved‑‑Secondary evidence to prove such agreement, held, would not be admissible, especially when no attempt was made to produce stamp vendor to prove that stamp paper was really purchased for execution of sale agreement. 1987 M L D 1102

Evaluation of documents Production of manipulated and false documents in certain cases, held, would not furnish sufficient basis to draw presumption, that each and every document produced in Court from official custody, should be looked at with suspicion and should be ruled out of consideration‑‑Each and every document produced in each case has to be evaluated on its own merits. 1986 M L D 2759

 Certified copies of Public Documents Where certified copies of Public Documents, authenticity of which was not under challenge, were produced in Trial Court with permission of Appellate Court on remand, production thereof, held, would entitle opposing party to challenge authenticity of such documents or correctness of copies thereof in Trial Court‑‑Failure of opposing‑party to avail such opportunity before Trial Court, would disentitle such party to challenge authenticity of such documents subsequently before Appellate Court‑‑Appellate Court in circumstances erred in law in keeping such documents out of consideration. 1986 M L D 2759

75. Proof of documents by primary evidence. --- Documents must be proved by primary evidence except in the cases hereinafter mentioned.

COMMENTARY

Execution of sale-deed by a person claiming to be holding power-of-attorney from the owner. Owner denying having executed any power-of-attorney in favour of said person. Original power-of-attorney was not produced in Court, Photostat copy produced could not, in the absence of original, be taken into consideration. Person holding purported power-of-attorney did not appear in Court to contest suit by the owner (plaintiff). Defendant (vendee) acknowledge in his statement before Court that he was not supplied original power-of-attorney at the time of execution of sale-supplied original power-of-attorney at the time of execution of sale-deed. Power-of-attorney was thus, a forged document and person executing sale-deed on basis thereof, had no authority to execute any sale-deed on behalf of the owner (plaintiff). Sale-deed executed in favour of vendee-defendant was, thus, not valid.6

Documentary evidence, proof Although documents not formally admitted in evidence and available on court’s record or elsewhere may, for the purpose of elucidation of certain facts, be looked into, yet the same by no stretch of imagination can be termed or regarded as “evidence” unless proved and exhibited at the trial in accordance with law—Since documents do not prove themselves and truth of the contents of the documents cannot be proved by merely producing the same for inspection of the court within the purview of Art. 2(c)(ii) of the Qanun-e-Shahadat, 1984, the document upon which a party relies must at first be placed before the court and then be got proved by calling the witness or witnesses. 2004 P Cr. L J 371

To prove contents of documents, claimant is bound to produce primary or secondary evidence as per Arts. 72, 75, 78 & 79 of the Qanun‑e‑Shahadat, 1984, unless execution of the same is admitted by the opponent‑‑‑Neither the execution of notice of Talab‑i‑Ishhad had been proved nor the other party had admitted same in the written statement or during trial of the case or even before the Supreme Court‑‑‑If a ‑document had been produced on record in accordance with the relevant provisions of Qanun‑e­Shahadat, but on account of an omission on the part of the Presiding Officer an exhibit number had not been marked on the same or the document had not been signed, .same ‑would not become inadmissible for much reason‑‑‑No other conclusion, can be drawn except that Talab‑i‑Ishhad had not been made in circumstances. 2001 SCMR 1651

Where the executant of power of attorney was alive at the time of recording of evidence and did not appear in evidence nor the original document was produced on record, copy of such power of attorney was not proved in accordance with provisions of Arts.75 & 76 of Qanun‑e‑Shahadat, 1984‑‑‑Inadmissible document could not be read in evidence and the same was excluded from consideration‑‑‑Power of attorney was not proved on the basis of which the objections were filed by a person not authorised and competent to sign, verify and file the objections‑‑‑Objections filed by such person were considered non‑existent in circumstances. 2001CLC289

Condition precedent for leading secondary evidence‑‑‑Disputed sale‑deed was not produced before Trial Court and secondary evidence to prove the' same was allowed by the Trial Court‑‑‑Validity‑‑‑Proof of loss of document was the condition precedent to permission to lead secondary evidence‑‑­Where the loss of the document was not proved, secondary evidence would become valueless‑‑‑Entire proceedings stood vitiated because of the failure of the Trial Court to act in accordance with provisions ‑of relevant law‑‑­Judgments and decrees passed by both the Courts were set aside‑‑‑Case was remanded to the Trial Court for decision afresh. 2001 C L C 1796 

Sufficiency of the number of witnesses to be produced in a case may depend upon the facts and circumstances of each particular case. 2000 C L C 825

Landlord in proof of his claim had produced photocopy of certificate in respect of E. S. Test, but had not examined author of said certificate‑‑‑Certificate had no evidentiary value and was of no consequence to prove ailment of heart of landlord‑‑‑Mere fact that no objection was taken to said certificate at the time of proceedings before Rent Controller would not make the document admissible in evidence which otherwise could not be admitted under law, because no case as required under Arts.75 & 76 of Qanun‑e‑Shahadat was made out which could entitle landlord to produce photocopy as secondary piece of evidence because neither original was in possession of landlord nor it had been alleged to have been lost or that it could not be produced without unreasonable delay or any other ground permissible by law. 2000 M L D 160

Evidence led by plaintiff in proof of execution of document in question, was either contradictory to the claim in suit or inadmissible ‑‑‑ Such evidence, thus, had no legal sanctity‑‑­ Document in question, relied upon by plaintiff had not been proved through primary evidence ‑‑‑ Non‑production of the only attesting witness of document had cast serious doubt concerning validity of document in question‑‑­ Document concerned was not proved in circumstances. P L D 1993.Quetta 37

 Failure to exhibit the notice itself‑‑‑Postman, clerk of Post Office and the witnesses of the notice were produced in Trial Court during evidence but the notice itself was not exhibited‑‑‑Such document neither pleaded nor exhibited in evidence could not be taken into consideration. 2001 CLC 981 1999 MLD 3298 ref.

  Photograph, Where photographer and the developer of the film with reference to negatives was not produced in the Court, such photograph could not have been admitted in evidence. 2001 Y L R 448

Tendering of photo copy of document - Failure to lead primary or secondary, evidence to prove the document - Document was taken on the record subject to its admissibility because the witness tendered its photocopy - Later on no steps were taken by the party to prove the contents of that document by leading primary or secondary evidence in terms of Arts. 75 & 76 of the Qanun-e-Shahadat, 1984 - Validity -  Such document could not be taken into consideration -  Merely by tendering a document in evidence, the same had no evidentiary value unless its contents were proved according to law. PLD 2002 S.C 84

76. Cases in which secondary evidence relating to document may be given. --- 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 be proved, or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produce it; and when, after the notice mentioned in Article 77 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, due to the volume or bulk of the original, copies thereof have been made by means of microfilming or other modern devices;

(e) when the original is of such a nature as not to be easily movable;

(f) when the original is a public document within the meaning of Article 85;

(g) when the original is a document of which a certified copy is permitted by this Order, or by any other law in force in Pakistan, to be given in evidence;

(h) when the originals consists 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;

(i) when an original document forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible as a secondary evidence.

In cases (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.

In case (f) or (g), certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (h), 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 document.

COMMENTARY

Secondary evidence of report of identification parade cannot be allowed or permitted to be adduced when no effort had been made to locate the original report of identification parage.6a

1.                  Scope-

2.                  Condition precedent 

3.                  Production of secondary evidence

4.                  Execution of sale through attorne

5.                  Photo copy

6.                  Execution denied by plaintiff

7.                  Public document

8.                  Production of secondary evidence

9.                  Issuance of notice for production of the document 

10.              Principles

11.              Admitted document‑‑Photo copy 

12.              Essentials

13.              Agreement to sell 

14.              Failure to produce original d

15.              Secondary evidence

16.              Notice to produce secondary evidence

17.              Admiralty jurisdiction

18.              Gift

19.              Bankers' Books Evidence Act

20.              Public document

1.         Scope---Where a party seeks to rely upon a document which is in the possession/control of the party entering the witness-box, the recourse may be had to the provisions of Arts.76, 77 & 159 of the Qanun-e-Shahadat, 1984, calling upon the party through notice to produce the same---If notice is not complied with, the requisite essentials for adducing secondary evidence by producing copy of such document becomes available unless it is privileged or classified document. 2002 C L C 655

2.         Condition precedent  Disputed sale‑deed was not produced before Trial Court and secondary evidence to prove the' same was allowed by the Trial Court‑‑‑Validity‑‑‑Proof of loss of document was the condition precedent to permission to lead secondary evidence‑‑­Where the loss of the document was not proved, secondary evidence would become valueless‑‑‑Entire proceedings stood vitiated because of the failure of the Trial Court to act in accordance with provisions ‑of relevant law‑‑­Judgments and decrees passed by both the Courts were set aside‑‑‑Case was remanded to the Trial Court for decision afresh. 2001 C L C 1796 1995 SCMR 1237 ref.

 Order of Trial Court allowing production of photo copies of said documents was premature as party producing photo copies should prove existence of said documents‑‑‑Once existence of documents had been established, respondents who intended to produce photo copies of said documents, could be allowed to produce documents by way of secondary evidence subject to compliance with provisions of  Arts.76 & 77 of Qanun‑e­Shahadat, 1984. 2000 C L C 1243 PLD 1994 Lah. 452 ref.

3.         Production of secondary evidence‑‑‑Permission of Trial Court for recording of secondary evidence was not available on record‑‑‑Original stamp vendor was dead and to prove the stamp paper on which the deed was written, the plaintiff produced son‑in­-law of the stamp vendor as secondary evidence‑‑‑Validity‑‑‑No secondary evidence could be produced unless allowed by the Court‑‑‑Where entry on the stamp paper was non‑existent in the register of the stamp vendor produced in the Trial Court and it was not proved that the Court had allowed to produce the secondary evidence, Trial Court had rightly dismissed the suit. P L D 2002 Peshawar 1

  Record did not suggest that original document was lost or was not available or that same could not be produced without inordinate delay or that same was available on record of case in any other Court‑‑‑Effect‑‑‑Mere production of copy of original document, would not be enough to entitle party to suit to produce secondary evidence, unless conditions laid down in Art.76 of Qanun‑e‑Shahadat, 1984 for production of secondary evidence stood satisfied‑‑‑Documents being not certified copies of alleged original document, no reliance could be placed thereon. 1999 C L C 200

 Plaintiff was allowed to lead secondary evidence in proof of his agreement to sell and the receipt relating to payment of earnest money, on his application to the effect that originals having been lost, he be allowed to lead secondary evidence alongwith the proof of loss of original documents‑‑­Plaintiff's suit was decreed on basis of secondary evidence‑‑‑Appellate Court, however, set aside such decree on the ground that plaintiff having not proved loss of original documents was not entitled to decree‑‑‑High Court set aside order of Appellate Court on the ground that in earlier round of litigation, question of loss of original documents as decided by revisional Court, having attained finality, could not have been re‑opened‑‑‑Validity‑‑‑High Court fell in error in refusing to examine the question whether plaintiff had succeeded in establishing loss of original documents on assumption that point of allowing secondary evidence due to alleged loss of original documents had attained finality‑‑‑Earlier order of Revisional Court, however, revealed that evidence relating to loss of original documents and secondary evidence could be produced simultaneously but the former had to precede the latter; it had further observed that if loss of documents was not proved, secondary evidence would become valueless‑‑‑Finding of Appellate Court was thus, correct while that of High Court was not correct‑‑‑Judgment of Appellate Court was restored while that of High Court was set aside in circumstances. 1995SCMR1237

  Such matter was to be properly adjudicated upon by Trial Court being within its jurisdiction‑‑‑Exercise of such discretion unless found to be manifestly perverse and illegal, should not be interfered with by Appellate Court muchless to be set aside through judicial review.‑‑ 1994 S C M R 65

Petitioner claiming to be owner in possession of land in dispute by virtue of two unregistered sale-deeds, had sought permission to produce photo copies of original sale-deed as secondary evidence, in proof of his claim contending that original had been misplaced-=-Court adverting to photo copies sought to be produced as secondary evidence, found that none of them was relatable to original one--­Court also noticed glaring discrepancies in those documents regarding particulars of land in dispute and amount of consideration, and for such reasons dismissed application of petitioner for producing secondary evidence--­Plaintiff-petitioner, no doubt, had a right-to prove his case by necessary evidence, but defendant also could not be allowed to be taken aback or confronted with unforeseen situation---Where a fact had been alleged and certain material in its support had been relied upon, evidence had to be confined to it---In case of any deviation from that rule, contesting party could justifiably take exception to it and insist upon restricting evidence to its declared limits---Discrepancies in documents sought to be produced as secondary evidence, relating to date of execution of documents, particulars of subject-matter and extent of consideration, were relevant matters for deciding application of petitioner---Besides, documents in question being unregistered and consideration being only Rs.729, their admissibility would also have to be determined before permission for secondary evidence of their contents was granted, because under no circumstances could secondary evidence be admitted as substitute for inadmissible evidence---Application for production of secondary evidence, thus, was rightly dismissed by Court. 1994 M L D 711

Secondary evidence was an exception to general rules with a purpose to meet genuine hardship--­Secondary evidence was to be adduced in the absence of that better evidence, which law required to be given first---Such an evidence, would not be allowed in routine or without complying with requirements of law in that behalf. 1994 M L D 711

 ­Secondary evidence of contents of document could not be admitted in evidence without accounting for the non-production of original document in such a manner as to bring the case within the four corners of Art.76, Qanun-e­-Shahadat, 1984---Where party had alleged that original document was in the possession or power of person against whom document was sought to be proved, notice to such person to produce the same was necessary to render secondary evidence admissible unless such notice was dispensed with under the provision of Art.77, Qanun-e-Shahadat, 1984---Where, however, secondary evidence was sought to be given without serving notice to produce original objection to the reception of secondary evidence should be taken at the time when same was tendered in evidence-- -Secondary evidence having been admitted without objection in Trial Court, no such objection would be entertained at subsequent stages viz. before appellate or revisional Court. 1994 M L D 2458 PLD 1964 Dacca 300 and PLD 1966 Quetta 44 rel.

4.         Execution of sale through attorney  Owner denying having executed any power of attorney in favour of said person ‑‑‑ Original power of attorney was not produced in Court ‑‑‑ Photostat copy produced could not, in the absence of original, be taken into consideration ‑‑‑ Person holding purported power of attorney did not appear in Court to contest suit by the owner (plaintif)‑‑‑Defendant (vendee) acknowledged in his statement before Court that he was not supplied original power of attorney at the time of execution of sale‑deed ‑‑‑ Power of attorney was thus, a forged document and person executing sale‑deed on basis thereof, had no authority to execute any sale­ deed on behalf of the owner (plaintif)‑‑Sale‑deed executed in favour of vendee‑defendant was, thus, not valid. P L D 1993 Karachi 520

Owner denying having executed any power of attorney in favour of said person ‑‑‑ Original power of attorney was not produced in Court ‑‑‑ Photostat copy produced could not, in the absence of original, be taken into consideration ‑‑‑ Person holding purported power of attorney did not appear in Court to contest suit by the owner (plaintif)‑‑‑Defendant (vendee) acknowledged in his statement before Court that he was not supplied original power of attorney at the time of execution of sale‑deed ‑‑‑ Power of attorney was thus, a forged document and person executing sale‑deed on basis thereof, had no authority to execute any sale­ deed on behalf of the owner (plaintif)‑‑Sale‑deed executed in favour of vendee‑defendant was, thus, not valid. P L D 1993 Karachi 520

5.         Photo copy Presumption of truth was attached to National Identity Card‑‑‑Photo copy of same was brought on record without objection from tenant‑‑‑Landlord's assertion that original document was shown to Presiding Officer and after verification, photo copies were placed on record; was borne out from record as photo copies of documents from both sides were available on record‑‑‑Entry in National Identity Card was considered to be a valid proof of age.1991 C L C 1774 1983 C L C 3237; 1.982 C L C 318 ref.

Photostat copy of document being admissible as secondary evidence under Arts.76(d), & 102 of Qanun‑e‑Shahadat Order, 1984, held would not debar production of photostat of agreement, reduced into writing 'and same could not be regarded as oral evidence of contents of document. 1987 M L D 868   Photostat of a document, held, could not be accepted as a legal document because it was neither the original nor a certified copy thereof, capable of being brought on the record as secondary evidence ‑ Such document not bearing any exhibit mark would not fulfil even requirement of production of document under O. XIII, R. 1, C. P. C.‑ P L D 1987 Lahore 208

6.         Execution denied by plaintiff‑­Defendants neither producing original document nor confronting plaintiff with thumb‑impressions on original document‑‑Effect‑‑Where document was in possession of defendants, production of same at proper stage was incumbent upon them and on failure to do so, adverse presumption would arise against them. 1989 M L D 135

7.         Public document‑‑When original document happened to be public document same, held, could be proved only through a certified copy thereof and by no other kind of secondary evidence under Art.90 of Qanun‑e‑Shahadat Order, 1984. 1987 M L D 408  P L D 1969 S C 136; P L D 1973 S C 160 and P L D 1986 Kar. 574 ref.

Certified copy of a public document having been produced in evidence before Trial Court and no objection either as to its admissibility or mode of proof having been raised by opposite‑party at time of production of such document, Trial Court, held, was patently erroneous in observing that document should have rather been proved by calling original document orb examining official, concerned with its preparation‑‑View of Appellate Court below that disputed document was not related to property in dispute was also not correct as disputed document admittedly was obtained at the behest of respondents themselves and no such objection was taken by respondents at the time when document was being tendered i,. evidence by petitioner. 1987 M L D 408

8.         Production of secondary evidence - Permission of Trial Court for recording of secondary evidence was not available on record - Original stamp vendor was dead and to prove the stamp paper on which the deed was written, the plaintiff produced son-in-law of the stamp vendor as secondary evidence - Validity - No secondary evidence could be produced unless allowed by, the Court - Where, entry on the stamp paper was non-existent in the register of the stamp vendor produced in the Trial Court and it was not proved that the Court had allowed to produce the secondary evidence. Trial Court had rightly dismissed the suit. PLD 2002 Pesh. 1

Delivery of alleged divorce deed to plaintiff not proved by defendants during lifetime of plaintiff's husband‑‑‑Effect‑‑‑Best evidence available ought to be produced by a party to lis‑‑‑Where original document was available it should have been produced as evidence for same was the best and primary evidence‑‑‑Secondary evidence was admissible only in absence of primary evidence‑‑‑Unless loss of original deed was proved or it was proved that original was in possession of, or under control of opposite‑party, secondary evidence of the same was inadmissible‑‑‑Before secondary evidence was given of contents of written document which was in possession of other side notice to produce original must be given‑‑‑Where no notice was given to opposite‑party to produce any document in her possession, party relying on it could not give secondary evidence to prove the same‑‑‑Where there was no averment in written statement that original document (divorce deed) was in possession of plaintiff nor effort was made to move Court for giving notice to plaintiff to produce original divorce deed, in such state of affairs photostat copy of alleged divorce deed produced by defendant was inadmissible in evidence and no reliance could have been placed on such photostat copy‑‑‑Even if defendant's version was accepted that deceased had divorced plaintiff, even then it had not been established by defendant that same was delivered to plaintiff during lifetime of her husband or she had any knowledge about the same‑‑‑No evidence was available on record that divorce deed was received or conveyed to plaintiff‑‑‑First Appellate Court had rightly ignored photostat copy of divorce deed and disbelieved scribe of divorce deed and its marginal witnesses‑‑‑High Court had correctly maintained finding of ‑First Appellate Court‑‑‑Interference in judgment of High Court was not warranted in circumstances. 1996 C L C 1959

Proof of loss of document was the condition precedent to permission to lead secondary evidence‑‑­Where the loss of the document was not proved, secondary evidence would become valueless‑‑‑Entire proceedings stood vitiated because of the failure of the Trial Court to act in accordance with provisions ‑of relevant law‑‑­Judgments and decrees passed by both the Courts were set aside‑‑‑Case was remanded to the Trial Court for decision afresh. 2001 C L C 1796 Mst. Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCMR 1237 ref.

Respondent's plea was that parties had agreed to execute lease agreement, but appellant in connivance with petition‑writer and marginal witnesses got it executed as agreement to sell ‑‑‑Respondent also filed suit for cancellation of agreement to sell being based on fraud and ineffective on his rights‑‑‑Both the suits were consolidated‑‑‑Trial Court decreed appellant's suit and dismissed respondent's suit holding that appellant had proved by examining one marginal witness and scribe of agreement that it was executed as agreement to sell‑‑‑Respondent's appeal was dismissed by Appellate Court, but his revision petition was accepted by High Court‑‑‑Validity‑‑‑Respondent had neither denied execution of agreement nor appellant's possession over suit‑land nor had claimed relief for getting its possession from appellant in suit for cancellation of agreement‑‑­Neither any jurisdictional defect nor non‑reading and misreading of evidence could be pointed out in judgments/decrees passed by Trial Court and Appellate Court‑‑‑High Court had interfered with such concurrent findings without indicating misreading or non‑reading of evidence or the same being in any way in violation of law‑‑‑High Court had granted relief to respondent on the ground not raised either in written statement or during trial‑‑‑Supreme Court accepted appeals with costs and set aside judgment of High Court. as a result of which judgments/decrees of Appellate Court were restored. P L D 2002 Supreme Court 293

Record did not suggest that original document was lost or was not available or that same could not be produced without inordinate delay or that same was available on record of case in any other Court‑‑‑Effect‑‑‑Mere production of copy of original document, would not be enough to entitle party to suit to produce secondary evidence, unless conditions laid down in Art.76 of Qanun‑e‑Shahadat, 1984 for production of secondary evidence stood satisfied‑‑‑Documents being not certified copies of alleged original document, no reliance could be placed thereon. 1999 C L C 200

9.         Issuance of notice for production of the document  Where a party seeks to rely upon a document which is in the possession/control of the party entering the witness-box, the recourse may be had to the provisions of Arts.76, 77 & 159 of the Qanun-e-Shahadat, 1984, calling upon the party through notice to produce the same---If notice is not complied with, the requisite essentials for adducing secondary evidence by producing copy of such document becomes available unless it is privileged or classified document. 2002 C L C 655

10.       Principles. Everything which finds mention in the registered deed or Revenue Record must not invariably be accepted without proof of their execution, genuineness and authenticity. It is axiomatic principle of law that a registered deed, by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not, by its own force, be sufficient to prove the genuineness of the transaction to which it purports, unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they, by their own force, would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source. Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of document. 1999 S C M R 1245

Original memo of identification parade was not produced in Court but despite objection of accused only a photo copy thereof was produced and said photo copy was also not compared with original‑‑‑Prosecution, despite order of Trial Court, neither had made serious attempt to produce on record original memo of identification parade nor tried to prove same through secondary evidence‑‑‑No further efforts were made even by Trial Court to bring on record original document or to verify its authenticity through any other source or mode which was essential for just decision of the case‑‑‑Order of Trial Court convicting and sentencing accused was set aside and case was remanded to Trial Court for fresh decision after allowing the prosecution opportunity to bring on record original identification parade memo or to prove the same on record in accordance with law. 1999 P Cr. L J 1955

Where any transaction has been drawn in the form of a document, no oral evidence can be allowed to prove such transaction unless it is shown that original document has been lost or cannot be produced or procured and that too after obtaining permission of the Court for production of such secondary evidence.  1997 M L D 2376

11.       Admitted document‑‑Photo copy  Trial Court had rightly looked into the photo copy of an admitted document which was placed on record. 1999 Y L R 1163

Photostat of a document, held, could not be accepted as a legal document because it was neither the original nor a certified copy thereof, capable of being brought on the record as secondary evidence ‑ Such document not bearing any exhibit mark would not fulfil even requirement of production of document under O. XIII, R. 1, C. P. C.‑. P L D 1987 Lahore 208

12.       Essentials Construction of building in violation of approved plan---Building Control Authority restraining owners from constructing such building in violation of approved plan---Owners submitting two letters from concerned Ministers to officials of Authority asking them not to restrain owner in raising construction and that approval would be accorded thereafter---Construction of building was, thus, completed in violation of approved plan---Owners alongwith two Ministers were challaned and their case sent to Ehtesab Bench---Original letters purported to be sent by Ministers were not traceable---Prosecution took no pains to fulfil requirements of Arts. 74 & 76, Qanun-e-Shahadat, 1984 for producing secondary evidence---None of prosecution witnesses claimed to have seen original letters---Photo copies of such letters would neither qualify as secondary evidence nor such letters fell within relevant categories specified in Art.74, Qanun-e-Shahadat, 1984--Article 76, Qanun-e-Shahadat, 1984 has to be construed for purposes of admissibility of secondary evidence while Art.74, Qanun-e-Shahadat, 1984 would determine whether particular piece of evidence would qualify as secondary evidence---Person purported to have received such letters denied existence thereof---No evidence in rebuttal was produced by prosecution to prove that letters in fact were received by the concerned person---Unless loss of original was categorically proved, secondary evidence could not be led---Entire evidence relating to such letters was based on hearsay which could not be relied upon---Accused Ministers to whom such letters were attributed, thus, could not be convicted when neither original letters were placed on record nor secondary evidence relating thereto was led/produced, therefore, they were acquitted.- P L D 1998 Karachi 86

 Talb - I - Ishhad‑‑‑ Notice of Talb‑i‑Ishhad must be sent within two weeks of making of Talab‑i‑Muwathibat and same should be attested by two truthful witnesses‑‑­Such notice unless itself was proved, condition attached therewith, could not be shown to have been fulfilled‑‑‑Oral evidence could not be allowed to be produced to prove notice of Talb‑i‑Ishhad unless original document was shown to have been lost or could not be produced or procured and that too after obtaining permission of secondary evidence‑‑‑No such permission having been obtained, mere production of two witnesses could not prove notice itself‑‑­Plaintiff having failed to prove performance of Talbs in accordance with law, he was not entitled to decree for pre‑emption. 1997 M L D 2376

13.       Agreement to sell  Plaintiff was allowed to lead secondary evidence in proof of his agreement to sell and the receipt relating to payment of earnest money, on his application to the effect that originals having been lost, he be allowed to lead secondary evidence alongwith the proof of loss of original documents‑‑­Plaintiff's suit was decreed on basis of secondary evidence‑‑‑Appellate Court, however, set aside such decree on the ground that plaintiff having not proved loss of original documents was not entitled to decree‑‑‑High Court set aside order of Appellate Court on the ground that in earlier round of litigation, question of loss of original documents as decided by revisional Court, having attained finality, could not have been re‑opened‑‑‑Validity‑‑‑High Court fell in error in refusing to examine the question whether plaintiff had succeeded in establishing loss of original documents on assumption that point of allowing secondary evidence due to alleged loss of original documents had attained finality‑‑‑Earlier order of Revisional Court, however, revealed that evidence relating to loss of original documents and secondary evidence could be produced simultaneously but the former had to precede the latter; it had further observed that if loss of documents was not proved, secondary evidence would become valueless‑‑‑Finding of Appellate Court was thus, correct while that of High Court was not correct‑‑‑Judgment of Appellate Court was restored while that of High Court was set aside in circumstances. 1995SCMR1237

14.       Failure to produce original document ‑‑‑Application to lead secondary evidence‑‑‑Trial Court after taking all the facts into account concluded that the original document was intentionally and mala fide being withheld and that the petitioner had failed to prove the loss of said document, therefore, his request to lead secondary evidence was turned down‑‑‑Findings of Trial Court were supported by record‑‑‑Trial Court, having exercised its discretion legally and properly, High Court declined interference in revision . P L D 1994 Lahore 298 Muhammad Khan v. Ghulam Rasool P L D 1952 Lah. 40 ref.

15.       Secondary evidence Secondary evidence relating to document---Production of---Mode---Admission of secondary evidence without objection ---Effect--­Secondary evidence of contents of document could not be admitted in evidence without accounting for the non-production of original document in such a manner as to bring the case within the four corners of Art.76, Qanun-e­-Shahadat, 1984---Where party had alleged that original document was in the possession or power of person against whom document was sought to be proved, notice to such person to produce the same was necessary to render secondary evidence admissible unless such notice was dispensed with under the provision of Art.77, Qanun-e-Shahadat, 1984---Where, however, secondary evidence was sought to be given without serving notice to produce original objection to the reception of secondary evidence should be taken at the time when same was tendered in evidence-- -Secondary evidence having been admitted without objection in Trial Court, no such objection would be entertained at subsequent stages viz. before appellate or revisional Court. 1994 M L D 2458 Badsha Meah v. Muhammad Sirajul Islam PLD 1964 Dacca 300 and Arbab Qadir Bakhsh v. Roshan PLD 1966 Quetta 44 rel.

16.       Notice to produce secondary evidence ‑‑‑Exception‑‑­Court's discretion to dispense with notice and permit production of secondary evidence‑‑‑Where plaintiffs' plea was that documents were in possession of Authorities in a foreign country not subject to the process of the Court and no evidence was produced on behalf of defendants in rebuttal of such plea, Court had discretion to dispense with requirement of notice and permit production of secondary evidence by a party. 1992 C L C 1586

17.       Admiralty jurisdiction Plaintiffs entitlement to claim specified amount for incurring expenses for providing necessities to defendant vessel---Burden to prove that plaintiff had incurred expenses as detailed in plaint and supplied the material shown therein was on the plaintiff, defendant having denied the same---Plaintiff failed to produce original bills and vouchers, instead photo copies of those bills and vouchers were produced---Plaintiff had neither alleged that those documents were lost nor had examined any witness for the loss of same---No satisfactory evidence of the loss of originals thus existed---Defendants having challenged photostat copies; same could not be relied upon---No case had therefore been made out for secondary evidence, and photostat copies were not admissible in evidence---Persons who had signed those bills and vouchers were not examined in evidence---Plaintiff also did not produce his account books to verify correctness of their claim in the suit---Plaintiff had failed to establish payments made by him to defendants. 1991 M L D 148

18.       Gift Defendants neither producing original document nor confronting plaintiff with thumb‑impressions on original document‑‑Effect‑‑Where document was in possession of defendants, production of same at proper stage was incumbent upon them and on failure to do so, adverse presumption would arise against them. 1989 M L D 135

19.       Bankers' Books Evidence Act Certified copy of statement of accounts found corroboration from evidence on record and assertion of witnesses‑‑Contention of borrower that mere production of certified copy of statement of account was not by itself sufficient to charge borrower with liability, held would not prevail in circumstances. 1987 C L C 1103  Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. P L D 1966 S C 684 ref.

20.       Public document When original document happened to be public document same, held, could be proved only through a certified copy thereof and by no other kind of secondary evidence under Art.90 of Qanun‑e‑Shahadat Order, 1984. 1987 M L D 408  Malik Din and another v: Muhammad Aslam P L D 1969 S C 136; Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others P L D 1973 S C 160 and Ali Mohataram Naqvi v. Messrs Cogefar‑Astaldi Sidmail P L D 1986 Kar. 574 ref.

Certified copy of a public document having been produced in evidence before Trial Court and no objection either as to its admissibility or mode of proof having been raised by opposite‑party at time of production of such document, Trial Court, held, was patently erroneous in observing that document should have rather been proved by calling original document orb examining official, concerned with its preparation‑‑View of Appellate Court below that disputed document was not related to property in dispute was also not correct as disputed document admittedly was obtained at the behest of respondents themselves and no such objection was taken by respondents at the time when document was being tendered i,. evidence by petitioner. 1987 M L D 408

77. Rules as to notice to produce. --- Secondary evidence of the contents of the documents referred to in Article 76, paragraph (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 advocate, 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.

Issuance of notice for production of the document---Where a party seeks to rely upon a document which is in the possession/control of the party entering the witness-box, the recourse may be had to the provisions of Arts.76, 77 & 159 of the Qanun-e-Shahadat, 1984, calling upon the party through notice to produce the same---If notice is not complied with, the requisite essentials for adducing secondary evidence by producing copy of such document becomes available unless it is privileged or classified document. 2002 C L C 655

            No notice as required under Arts.76, 77 & 159 of the Qanun-e-Shahadat, 1984, can be given in such a case---Only the Court in exercise of powers under Art.161 of Qanun-e-Shahadat, 1984, may direct production of the documents. 2002 C L C 655

 Admission of secondary evidence without objection --- ­Secondary evidence of contents of document could not be admitted in evidence without accounting for the non-production of original document in such a manner as to bring the case within the four corners of Art.76, Qanun-e­-Shahadat, 1984---Where party had alleged that original document was in the possession or power of person against whom document was sought to be proved, notice to such person to produce the same was necessary to render secondary evidence admissible unless such notice was dispensed with under the provision of Art.77, Qanun-e-Shahadat, 1984---Where, however, secondary evidence was sought to be given without serving notice to produce original objection to the reception of secondary evidence should be taken at the time when same was tendered in evidence-- -Secondary evidence having been admitted without objection in Trial Court, no such objection would be entertained at subsequent stages viz. before appellate or revisional Court.  1994 M L D 2458

Secondary evidence of contents of document could not be admitted in evidence without accounting for the non-production of original document in such a manner as to bring the case within the four corners of Art.76, Qanun-e­-Shahadat, 1984---Where party had alleged that original document was in the possession or power of person against whom document was sought to be proved, notice to such person to produce the same was necessary to render secondary evidence admissible unless such notice was dispensed with under the provision of Art.77, Qanun-e-Shahadat, 1984---Where, however, secondary evidence was sought to be given without serving notice to produce original objection to the reception of secondary evidence should be taken at the time when same was tendered in evidence-- -Secondary evidence having been admitted without objection in Trial Court, no such objection would be entertained at subsequent stages viz. before appellate or revisional Court. 1994 M L D 2458

Permission of Trial Court for recording of secondary evidence was not available on record - Original stamp vendor was dead and to prove the stamp paper on which the deed was written, the plaintiff produced son-in-law of the stamp vendor as secondary evidence - Validity - No secondary evidence could be produced unless allowed by, the Court - Where, entry on the stamp paper was non-existent in the register of the stamp vendor produced in the Trial Court and it was not proved that the Court had allowed to produce the secondary evidence. Trial Court had rightly dismissed the suit. PLD 2002 Pesh. 1

Scope---Where a party seeks to rely upon a document which is in the possession/control of the party entering the witness-box, the recourse may be had to the provisions of Arts.76, 77 & 159 of the Qanun-e-Shahadat, 1984, calling upon the party through notice to produce the same---If notice is not complied with, the requisite essentials for adducing secondary evidence by producing copy of such document becomes available unless it is privileged or classified document. 2002 C L C 655

Production of document---Person required to produce the document when in witness-box---Procedure---No notice as required under Arts.76, 77 & 159 of the Qanun-e-Shahadat, 1984, can be given in such a case---Only the Court in exercise of powers under Art.161 of Qanun-e-Shahadat, 1984, may direct production of the documents. 2002 C L C 655

Essentials‑‑‑Delivery of alleged divorce deed to plaintiff not proved by defendants during lifetime of plaintiff's husband‑‑‑Effect‑‑‑Best evidence available ought to be produced by a party to lis‑‑‑Where original document was available it should have been produced as evidence for same was the best and primary evidence‑‑‑Secondary evidence was admissible only in absence of primary evidence‑‑‑Unless loss of original deed was proved or it was proved that original was in possession of, or under control of opposite‑party, secondary evidence of the same was inadmissible‑‑‑Before secondary evidence was given of contents of written document which was in possession of other side notice to produce original must be given‑‑‑Where no notice was given to opposite‑party to produce any document in her possession, party relying on it could not give secondary evidence to prove the same‑‑‑Where there was no averment in written statement that original document (divorce deed) was in possession of plaintiff nor effort was made to move Court for giving notice to plaintiff to produce original divorce deed, in such state of affairs photostat copy of alleged divorce deed produced by defendant was inadmissible in evidence and no reliance could have been placed on such photostat copy‑‑‑Even if defendant's version was accepted that deceased had divorced plaintiff, even then it had not been established by defendant that same was delivered to plaintiff during lifetime of her husband or she had any knowledge about the same‑‑‑No evidence was available on record that divorce deed was received or conveyed to plaintiff‑‑‑First Appellate Court had rightly ignored photostat copy of divorce deed and disbelieved scribe of divorce deed and its marginal witnesses‑‑‑High Court had correctly maintained finding of ‑First Appellate Court‑‑‑Interference in judgment of High Court was not warranted in circumstances. 1996 C L C 1959

Exception  Court's discretion to dispense with notice and permit production of secondary evidence‑‑‑Where plaintiffs' plea was that documents were in possession of Authorities in a foreign country not subject to the process of the Court and no evidence was produced on behalf of defendants in rebuttal of such plea, Court had discretion to dispense with requirement of notice and permit production of secondary evidence by a party.  1992 C L C 1586

78. Proof of signature and handwriting of person alleged to have signed or written document produced. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature of 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.

COMMENTARY

Suit for specific performance of agreement to sell property. Disputed signatures. Plaintiff is required to prove the signatures of the executant of the agreement.7

1.                  Comparison

2.                  Disputed signatures

3.                  Muhammadan Law 

4.                  Power of attorney--Mode of proof

5.                  Recovery Officer deed

6.                  Proof  

7.                  Attesting marginal witness

8.                  Objection to admissibility 

9.                  Bankers' Books Evidence Act

1.         Comparison  Comparison of disputed signatures of deceased on alleged agreement of sale with her admitted signatures showed that the same were signed by different person.---Non-production of any of the attesting witnesses would cause inference to be drawn against defendant. 1999 M L D 1

Where signatures were being disputed by a party it was that party who should have asked for the comparison of his signatures by the Handwriting Expert. 1999 Y L R 1518 1993 MLD 666 rel.

Where parties to suit had not applied for referring disputed signatures to Handwriting Expert for comparison with admitted or proved signatures, Trial Court was not obliged to refer the same to him---Trial Court had rightly compared disputed signatures of vendor on agreement of sale with admitted or proved signatures of vendor on plaint and schedule of property attached therewith and had rightly found that they were similar and of the same person. 1998 M L D 1908

During course of hearing of suit, on application of defendant, disputed signatures on promissory note were got examined by Court from Handwriting Expert, who after comparison with admitted signatures of defendant, had opined that alleged signatures on promissory note were not that of defendant‑‑‑Trial Court after receipt of report of Handwriting Expert was required to fix the case for recording statement of Handwriting Expert, instead proceeded to call for objections of parties on that report‑‑‑Procedure adopted by Trial Court was novel and unknown to law which had resulted in wastage of public time and unnecessary expenses and further litigation for the parties‑‑‑Proceedings taken by Trial Court subsequent to submission of report by Handwriting Expert, were declared illegal by High Court. 1991 C L C 1682

2.         Disputed signatures Plaintiff is required to prove the signatures of the executant of the agreement. P L D 1995 Supreme Court 381

3.         Muhammadan Law  Donor's son being in possession, seeking cancellation of  gift deed, by denying factum of gift and claiming gift deed to be a fabricated transaction‑‑‑Plaintiffs suit was dismissed by trial Court but decreed by Appellate .Court‑‑‑Validity‑‑‑Donor was old and aged person and illiterate‑‑‑Burden to prove execution of gift deed by him and its valid registration at his instance lay upon donee who did not appear in witness box to depose about voluntary execution of gift deed by her father and its registration at his instance‑‑‑Neither stamp vendor nor scribe of gift deed were produced in evidence‑‑‑None from the village where land in question, was situated and donor resided was associated with execution and registration of gift deed ‑‑‑Lambardar of the village where land was situated was also excluded from the transaction in question‑‑‑Attesting witnesses of gift deed were from a far‑off village‑‑­Appellate Court had disbelived their testimony on proper scan of evidence‑‑­No other relation of donor had accompanied him at the time of execution and registration of alleged gift‑‑‑No good reason was shown for donor to prefer one daughter to his sole son and three other daughters‑‑‑Transaction in question, was against ordinary human conduct ‑‑‑Plaintiff was .in possession of land in question, during lifetime of his father and even after his death‑‑‑In case of denial of execution defendant (daughter) who had to prove voluntary nature of transaction had failed to prove that same was voluntary and its execution and registration was at the instance of donor‑‑‑Gift in question was, thus, not binding on plaintiff in circumstances. 1995 C L C 7

4.         Power of attorney--Mode of proof--Waiver of--Effect--Power of attorney would be required to be proved to have been signed by the executant, without which such document would be inadmissible in evidence--Mode of proof of a document, however, being a question of procedure was capable of being waived--Where objection as to manner of proof of a document was not taken at the time same was sought to be proved in Trial Court and that document was freely referred to by parties before that Court, such objection could not be raised subsequently in appeal.--[Power of attorney]. 1989 S C M R 1 Principles and Digest of the Law of Evidence by M. Munir, Pakistan Edn., p. 740; Gopal Das and another v. Sri Thakurji and others A I R 1943 PC 83; Abdullah and others v. Abdul Karim and others P L D 1968 S C 140; Malik Din and another v. Muhammad Aslam P L D 1969 S C 136 and Ghulam Muhammad and others v. Mehtab Beg and others 1983 S C M R 849 rel.

5.         Recovery Officer deed Investigating Officer was dead and Mashirnama regarding recovery of weapon used in offence was produced through another Police Officer to prove handwriting and signature of deceased Investigating Officer‑‑Mashirnama not being substantive piece of evidence, recovery, held, could not be proved through Police Officer other than Investigating Officer. 1989 P Cr. L J 471

6.         Proof   Proof of execution of document would mean proof of writing/signatures/impression of the author and was not synonymous with proof of contents of document--­Burden to prove contents of document in addition to proof of execution was on beneficiary of that document, who was to lead primary/secondary/circumstantial internal evidence to prove truth of that document---Such requirements of law having not been met by quantum of evidence produced by defendant, sale-deed in question could not be deemed to have been proved by defendant---Mere fact that defendant had produced copy of registered sale-deed would not entitle him to claim ownership of property in question, when sufficient evidence to the contrary was available on record to prove dubious nature of such document and mysterious circumstances under which the same came into existence--­Documents in question were, thus, void and ineffective on inheritance rights of plaintiff. 1998 M L D 837 PLD 1997 Lah. 633; PLD 1954 Lah. 480; PLD 1993 Kar. 26; 1992 CLC 1459; PLD 1961 Dacca 140; PLD 1963 (W.P.) Kar. 825; PLD 1963 SC 163; PLD 1980 Lah. 145 and 1996 MLD 1064 ref.

Provision of Art. 78, Qanun‑e‑Shahadat is mandatory in nature and unless the accused had complied with the said provision, the receipts and the register relied upon by accused were mere waste paper‑‑‑No explanation had been offered by the accused in his defence as to why he could not tender his Officer on Special Duty and executants of the receipts particularly those to whom huge amounts were paid‑‑‑No presumption thus could legally be drawn in support of the execution of the receipts and payments allegedly made to different persons by the accused and in the absence of any proof on behalf of the. accused regarding proper appropriation of Public Funds, the prosecution could not be blamed for non‑production of any evidence in support of misappropriation‑‑‑Inevitable conclusion therefore would be that if the Officer on Special Duty and the executants of the receipts had been produced, their evidence would have been unfavourable to the accused and from the consideration of the material available on record the only inference that could be drawn was that the accused dishonestly and fraudulently misappropriated the public funds. P L D 1991 Peshawar 143

Fact that a particular person has written a particular writing, could be proved by direct evidence of those persons who had seen that person writing on a particular document irrespective of whether or not they could read what was written. 1989 M L D 2002

 Amount of consideration received by plaintiff having been deposited by him in his Bank account, Bank official deposed that demand draft was deposited and credited in plaintiff's Bank account---Plaintiff had bounden duty in presence of such evidence to discredit evidence of Bank official who had produced originals of Bank draft and deposit-slip from the record of Bank--­Signatures of plaintiff having been proved to be on sale agreement and amount of consideration having been proved to be received by him, Trial Court had rightly non-suited him---No interference was, therefore, warranted with findings of Trial Court. 1998 M L D 1908

Executing a document is signing a document as consenting party thereto‑­‑Execution consists in signing a document written out, read over and understood by the person signing the same‑‑‑Execution can be proved by calling the person who has signed or has written the document or in whose presence the document has been signed or written or by calling Handwriting Expert who has examined the disputed signature‑‑‑ Execution can be proved by calling a person acquainted with the handwriting of a person who has signed or written the document‑‑‑Court can also compare the disputed signature or writing with some admitted signature or writing‑‑‑Even circumstantial evidence can be adduced in proof of execution of the document. 2002 C L C 1244

Plaintiffs produced marginal witness as well as copy of Roznamcha Waqiati (Daily Diary) in support of their plea that the mutation was rightly attested---Suit was decreed by Trial Court but the Lower Appellate Court allowed the appeal and dismissed the suit---Revision was filed before High Court which was dismissed--­Contention of the defendants was that their possession was that of tenant but when they refused to give share of produce to the plaintiffs, the proceedings were initiated against them and as a counterblast fresh suit was filed--­Validity---Defendants were under obligation to establish their proprietary rights---Plaintiffs having established their claim were entitled for the decree---Judgment and decree of Trial Court was restored and those of Lower Appellate Court as well as High Court were set aside by the Supreme Court. 2001 S C M R 593

To prove contents of documents, claimant is bound to produce primary or secondary evidence as per Arts. 72, 75, 78 & 79 of the Qanun‑e‑Shahadat, 1984, unless execution of the same is admitted by the opponent‑‑‑Neither the execution of notice of Talab‑i‑Ishhad had been proved nor the other party had admitted same in the written statement or during trial of the case or even before the Supreme Court‑‑‑If a ‑document had been produced on record in accordance with the relevant provisions of Qanun‑e­Shahadat, but on account of an omission on the part of the Presiding Officer an exhibit number had not been marked on the same or the document had not been signed, .same ‑would not become inadmissible for much reason‑‑‑No other conclusion, can be drawn except that Talab‑i‑Ishhad had not been made in circumstances. 2001 SCMR 1651

Where the execution of document of sale‑deed was denied by the executant/vendor, the onus to prove ' the registered sale‑deed shifted to the vendees/beneficiaries of the sale­deed‑‑‑Such vendees/beneficiaries were under obligation to prove the bargain and payment of money of the property by producing sufficient evidence.  2000 C L C 419

Sufficiency of the number of witnesses to be produced in a case may depend upon the facts and circumstances of each particular case. 2000 C L C 825

Execution of sale‑deed by plaintiff in favour of defendant could not be proved‑ nor it was established that plaintiff had appeared before the Registrar at the time of registration and payment of sale consideration to the plaintiff also could .not be substantiated‑‑‑Sale‑deed, therefore, was a void document .and the plaintiff was not bound to ask for its cancellation for such a situation could not constitute a hindrance or impediment in his way to seek possession under Art. 142, Limitation Act, 1908 from the date he was dispossessed. 1999 S C M R 1245 Muhammad Akbar Shah v. Muhammad Yusuf Shah and others PLD 1964 SC 329 ref.

Documents exhibited and relied upon by the Trial Court were neither original nor were proved as required under Arts. 78 & 89(5) of the Qanun-e-Shahadat, 1984 and did not bear certificate of genuineness and also were not certified by the representative of Pakistan in Saudi Arabia as required by the aforesaid provisions of law---Said documents were, therefore, not admissible in evidence to prove guilt of the accused---Trial Court having erroneously admitted and relied upon certified copies collected by F.I.R., conviction based as such on inadmissible evidence was patently illegal---Accused was acquitted on benefit of doubt accordingly. 1995 P Cr. L J 275

No particular mode of proof of document having been prescribed by Art.78, Qanun‑e‑Shahadat, same can be proved by any means recognized by Oanun‑e‑Shahadat, which Court in its discretion considered necessary‑‑‑Authenticity of document can also be proved by reference to contents thereof‑‑‑Internal evidence afforded by contents would be accepted as authentication e.g., when document contained facts and circumstances which were found to be accurate and which could have been known only to the person to whom authorship was attributed. 1996 C L C 79 Sarkar on Evidence, 13th Edn., Vo.2, p.674; Mobarik Ali Ahmed v. State of Bombay AIR 1957 SC 857; S.W.F. Product (Pvt.) Ltd. v. Sohanlal Bagla AIR 1964 Cal. 209 and Agro, Marketing Corporation Ltd. v. Pakistan PLD 1982 Lah. 20 rel.

Documents allegedly signed and executed by vendor (defendant)‑‑‑Such documents were produced by a defendant not a party to alleged transaction‑‑‑Vendor (defendant) was not confronted with those documents‑‑‑Such documents not produced by the vendee herself and alleged vendor having not been confronted with them, would have no evidentiary value‑‑‑Documents in question, however, showed various interpolations and additions made therein‑‑‑Such documents were not proved in circumstances. P L D 1994 Karachi 92

Averment in plaint was that two documents viz. agreement to sell and registered power of attorney were executed by the defendant on same date‑‑‑Neither registered power of attorney in original nor any certified copy of same was produced on record‑‑‑Name of scribe as entered in agreement to sell was not legible‑‑‑Plaintiff himself failed to give names of attesting witnesses as well as of scribe‑‑‑Execution of agreement to sell and payment of consideration was thus not proved satisfactorily. 1991CLC104

Fact that a particular person has written a particular writing, could be proved by direct evidence of those persons who had seen that person writing on a particular document irrespective of whether or not they could read what was written. 1989 M L D 2002

7.         Attesting marginal witness Non--production of attesting marginal witness of a document for proving its execution when the document was shrouded with doubts was fatal and would have far­ reaching effects on the party's stand failing to produce such evidence. 1989 C L C 2287 Ghulam Hussain and others v. Muhammad Hussain 1986 CLC 770; Ghulam Muhammad v. Muhammad Shari 1985 MLD 101; Muhammad Bakhsh v. Nisar Ahmad 1985 CLC 1974 and Abdullah Khan v. Govt. of Sindh 1986 MLD 1500 rel.

Witnesses, asserting that borrower had signed relevant documents of loan in their presence, although such witnesses were Officers of Bank, yet their testimony could not altogether be discarded on account of that ground only, especially where debtor neither raised any objection to admissibility of such document nor he could shatter testimony of witnesses in his cross‑examination. 1987 C L C 1103

8.         Objection to admissibility  Where objection to admissibility of documents was not taken by opposite party when such document was admitted into evidence and was duly exhibited, parties, held, would not be permitted to raise such objection at later stage. 1987 C L C 1103 Muhammad Yousaf Khattak v . S. M. Ayub and 2 others P L D 1972 Pesh. 175; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140 and Malik Din and another v. Muhammad Aslam PLD 1969 S C 136 ref.

Genuineness and authenticity of document and contents thereof, including its authorship and relationship with case, held, could be proved by putting the man in witness‑box who‑was alleged to have written and signed same ‑ Such document could be relied upon, simply because same with a carbon copy has gone on record without objection‑In absence of proper proof, as to its signature, it cannot be taken as conclusive proof of fact. in issue. P L D 1986 Karachi 574

9.         Bankers' Books Evidence Act Certified copy of statement of accounts found corroboration from evidence on record and assertion of witnesses‑‑Contention of borrower that mere production of certified copy of statement of account was not by itself sufficient to charge borrower with liability, held would not prevail in circumstances. 1987 C L C 1103 Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. P L D 1966 S C 684 ref.

 

 1[“78-A. Proof of electronic signature and electronic document : -- If an electronic document is alleged to be signed or to have been generated wholly or in part by any person through the use of an information system, and where such allegation is denied, the application of a security procedure to the signature or the electronic document must be proved.]

Legal Amendments

1.         Article 78-A added by the Electronic Transactions Ordinance, 2002.

79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses 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 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

COMMENTARY

Revisional jurisdiction, exercise of. Courts below had recorded very cogent reasons for decreeing plaintiff’s suit by placing reliance upon circumstantial evidence as also on evidence on record for coming to conclusion that neither document in question, was proved to have been executed nor the same was verified in accordance with law. Original document was also not placed on record. Findings recorded by Courts below on the question of execution of alleged document being lawful could not be interfered with. Judgments and decrees of Courts below were maintained in circumstances.8

Proof of execution of private document. Execution of such document had to be proved by examining the scribe and an attesting witness. Such persons having not been examined, document in question, would be deemed to have not been proved and could be excluded from consideration.9

Agreement to sell. Proof and admissibility. Scribe of document when a competent witness. Evidence of one marginal witness and scribe. Evidentiary value of. Agreement to sell was proved through the statement of one marginal witness and scribe of the document in question. Ordinarily a scribe who had merely scribed a document and handed it over to parties for their signatures and the signatures of attesting witnesses would not become competent attesting witness, if such document was executed elsewhere in his absence. Where, however, document in question, was actually executed in presence of scribe and parties and attesting witnesses had signed the same in his presence, he (scribe) could be treated as attesting witness although he had not signed the document in that capacity.1

Agreement to sell. Execution of. Proof of. Parties had executed document in presence of scribe and signed it. Even attesting witnesses had signed document in presence of scribe. Scribe can be treated to be an attesting witness although he has not signed it in that capacity. Requirements of provisions of Article 79 read with Article 17 of Qanun-e-Shahadat have been substantially complied with. Admittedly original document as placed on record, but record having been burnt, was reconstructed under orders of High Court. No objection was raised at time of reconstruction of file regarding genuineness of agreement to sell. Held: No jurisdiction defect in impugned judgments and decrees of Courts below or any misreading or non-reading of evidence has been pointed out to justify interference in concurrent findings of fact recorded by Courts below. Petition dismissed.2

Marginal witnesses of disputed deed. Evidentiary value of. No lacuna in the evidence of marginal witnesses was apparent or pointed out, therefore, their veracity could not be described. Evidence of such witnesses, alone was sufficient to prove the document in question, even if other evidence was altogether ignored.3

Proof of execution of document required by law to be attested. Exception. Documents required by law to be attested would not be used as evidence until two attesting witnesses, who if alive were amenable to jurisdiction of Court and capable of giving evidence were produced. Not necessary to call attesting witnesses to prove execution of a documents, which was (not a will) registered in accordance with Registration Act, 1908, unless execution thereof, was specifically denied by the person who allegedly executed the document. Document in question, being registered one, and its existence having not been denied, its execution could be proved by certified copy thereof.4

1.                  Application

2.                  Document required by law to be attested

3.                  Scribe and authors

4.                  Agreement to sell

5.                  Execution of sale‑deed

6.                  Mutation

7.                  Will ; Attesting witnesses

8.                  Sale transaction

9.                  Proof of signatures of any person on the document

10.              Power of attorney

11.              Mode of proof of document

12.              Copy of registered document

13.              Proviso to Article 79

14.              Number of witnesses to be produced

15.              Document required by law to be attested 

16.              One marginal witness with scribe 

17.              Presumption as to document

18.              Arbitration agreement

19.              Certified copy of document forming part of judicial record

20.              Two marginal witnesses

21.              Agreement to refer the dispute to arbitration

22.              Acknowledging signature by executant

23.              Agreement of sale not required to be attested by two witnesses

24.              Handwriting Expert

25.              Mode of Proof of documents

1.         Application :-- Article 79, Qanun‑e‑Shahadat, 1984 has no universal application and does not apply to each and every kind of document ‑‑‑ Article 79 is restrictive in nature and applies only to those documents which require by any law to be attested by two marginal witnesses. P L D 1994 Lah. 452

Agreement to sell being instrument pertaining to financial or future obligations, and having been rendered into writing, same was required to be attested by two men or one man  and two women‑‑‑Such document would not be used in evidence unless at least two attesting witnesses were examined for such purpose, provided they were alive; subject to process of Court; and they were capable of evidence ‑‑‑ Where such document was attested by two witnesses, requirement of Art.17, Qanun‑e­ Shahadat, 1984 was complied with but only one witness having been examined, document was not deemed to have been proved in accordance with law and same would be excluded from consideration. P L D 1996 Lah. 367

­Document was attested by two witnesses‑‑‑One of the two witnesses supported the execution of the document while the other witness denied the execution in his presence‑‑‑Such evidence fell far short of the required standard to discharge the onus‑‑­Document was not proved in circumstances. 2002 C L C 88

Agreement if executed prior to promulgation of Qanun‑e‑Shahadat, 1984 was not required by any law to be attested by witnesses‑‑‑Form of proof must be in line with the format of document executed by parties to the contract‑‑‑If agreement to sell had been reduced into writing and attested by witnesses, then its execution must be proved in accordance with provisions of S.68 of. Evidence Act, 1872, notwithstanding the fact that the same applied only to document required by law to be attested‑‑‑Where‑agreement to sell had been reduced to writing but 'not attested by witnesses, its execution and the contract embodied therein could be proved by other strong evidence and attending circumstances, which might vary from case to case‑‑‑Such evidence could also be produced in first category of cases as supporting evidence. 2002 S C M R 1089

2.         Document required by law to be attested‑‑‑ Such document cannot be used in evidence until two attesting witnesses have been called for such purpose‑‑‑Such witnesses are subject to conditions viz. the attesting witnesses are alive; are subject to the process of Court and they are capable of giving evidence. 2000 Y L R 915

Plaintiffs had failed to prove that document in question, was legal document and with legal consideration‑‑‑Plaintiffs had themselves refused to examine marginal witnesses of agreement on flimsy ground that they would file revision petition‑‑‑Plaintiffs' plea that they wanted to send signatures of document in question for comparison to Finger Print Expert with the admitted signatures of defendant was of no avail, for defendant had not denied his signatures on that document‑‑‑Trial Court had rightly turned down application of plaintiffs for comparison of disputed signatures with admitted signatures in circumstances. 1996 C L C 385

3.         Scribe and authors Production of scribe and authors being one of the requirements of law, such documents could be proved even otherwise than production of said witnesses Oanun‑e‑Shahadat, 1984, being a comprehensive Code, it contemplates numerous modes for proof of documents. 1995 C L C 1441

4.         Agreement to sell‑‑‑Agreement to sell involving future obligations, if reduced to writing and executed after coming into force of Qanun‑e‑Shahadat, 1984, is required by Art.17(2)(a) of Qanun‑e‑Shahadat, 1984 to be attested by two male or one male and two female witnesses, as the case may be‑‑‑Such agreement has to be proved in accordance with the provisions of Art.79 of Qanun‑e‑Shahadat, 1984.

Plaintiff examined only one attesting witness‑‑‑Trial Court dismissed the suit on the ground that agreement to sell had not been proved in accordance with Art.79 of Qanun‑e-­Shahadat, 1984‑‑‑Validity‑‑‑Agreement to sell having been attested by two witnesses and executed after promulgation of Qanun‑e‑Shahadat, 1984 ought to have been proved in accordance with Art.79 thereof‑‑‑Evidence on record consisted of only one attesting witnesses‑‑‑Payment of earnest money had not been proved‑ Evidence produced by plaintiff did not meet the requirement of Art.79 of Qanun‑e‑Shahadat, 1984. 2002 S C M R 1089

Agreement to sell being instrument pertaining to financial or future obligations, and having been rendered into writing, same was required to be attested by two men or one man  and two women‑‑‑Such document would not be used in evidence unless at least two attesting witnesses were examined for such purpose, provided they were alive; subject to process of Court; and they were capable of evidence ‑‑‑ Where such document was attested by two witnesses, requirement of Art.17, Qanun‑e­ Shahadat, 1984 was complied with but only one witness having been examined, document was not deemed to have been proved in accordance with law and same would be excluded from consideration. P L D 1996 Lahore 367

Agreement to sell was proved through the statement of one marginal witness and scribe of the document in question‑‑­Ordinarily a scribe who had merely scribed a document and handed it over to parties for their signatures and the signatures of attesting witnesses would not become competent attesting witness, if such document was executed elsewhere in his absence‑‑‑Where, however, document in question, was actually executed in presence of scribe and parties and attesting witnesses had signed the same in his presence, he (scribe) could be treated as attesting witness although he had not signed the document in that capacity. 1993 C L C 257

Claim of plaintiff/was that Iqrarnama regarding sale of plot in question was forged and fictitious---Trial Court dismissed suit, but on appeal Appellate Court set aside judgment of Trial Court and decreed the suit---Plaintiff who appeared as his own witness had failed to discharge onus of issue relating to falsehood of Iqrarnama which otherwise was duly proved through evidence of its marginal witness--­Evidence on record had fully proved that plaintiff had made general power of attorney in favour of brother of defendant/vendee on the same date when agreement (Iqrarnama) to sell plot in question was executed by her in favour of defendant/vendee and plaintiff had admitted that she had thumb-marked blank papers on advice of brother of vendee in whose favour general power of attorney was got registered by plaintiff--­Evidence of defendant/vendee and attesting witness was consistent, coherent, reasonable and confidence-inspiring---Said witnesses fully proved execution of valid agreement of sale, receipt of amount of consideration by plaintiff/vendor and handing over possession of plot to defendant---Appellate Court set aside judgment of Trial Court simply on ground that production of only one attesting witness was insufficient to prove Iqrarnama and that at least two attesting witnesses should have been produced---Agreement to sell was not required to be attested by witnesses under Art.79 of Qanun-e-Shahadat, 1984---Production of two marginal witnesses or scribe in circumstances, was not necessary--­Judgment and decree passed by Appellate Court being - not based on evidence on record and having been passed by misinterpreting law; were set aside in revision by High Court upholding judgment and decree of Trial Court. 2002 M L D 1002   Abdul Wali Khan. through Legal Heirs and others v. Muhammad Saleh 1998 SCMR 760 and Manzoor Hussain Khan Mst. Asia Begum and 21 others 1990 CLC 1014 ref.

5.         Execution of sale‑deed‑‑‑Petitioners denied execution of the sale‑deed in favour of respondent‑‑‑All the Courts below had concurrently decided the matter in favour of the respondent‑‑‑Contention of the petitioner was that the document had not been proved in accordance with provisions of Art.79 of the Qanun‑e­ Shahdat, 1984, and the judgments of the Courts below were an outcome of misreading of evidence‑‑‑Validity‑‑‑Sale‑deed in question was executed prior to the promulgation of the Qanun‑e‑Shahadat, 1984, therefore, its execution was to be proved in the light of the provisions of S.68 of the erstwhile Evidence Act, 1872, and not under Art.79 of the Qanun‑e‑Shahadat, 1984‑‑­Execution of the sale‑deed was proved in the light of the statement of one of the marginal witnesses and the testimony of the witness was not vulnerable to any .criticism and its effect could not be offset by the ipse dixit of the petitioner‑‑‑. 2002 S C M R 1301

6.          Mutation, Where owner of land and attesting witness of sale‑deed denied the sale, such mutation would not have any probative value as the presumption stood rebutted in circumstances. 2002 C L C 88

 ­Plaintiffs produced marginal witness as well as copy of Roznamcha Waqiati (Daily Diary) in support of their plea that the mutation was rightly attested---Suit was decreed by Trial Court but the Lower Appellate Court allowed the appeal and dismissed the suit---Revision was filed before High Court which was dismissed--­Contention of the defendants was that their possession was that of tenant but when they refused to give share of produce to the plaintiffs, the proceedings were initiated against them and as a counterblast fresh suit was filed--­Validity---Defendants were under obligation to establish their proprietary rights---Plaintiffs having established their claim were entitled for the decree---Judgment and decree of Trial Court was restored and those of Lower Appellate Court as well as High Court were set aside by the Supreme Court. 2001 S C M R 593

7.         Will ; Attesting witnesses --- Mere fact that attesting witnesses of 'will' were not examined would not detract from its proof---Trial Court and High Court, on basis of evidence on record had rightly found that Will in question stood amply proved---Judgment and decree of Trial Court was, however, modified to the extent that share of deceased lady in property in question was excluded for non-impleading of her legal heirs in appeal pending before High Court. 1999 M L D 1193

"Will" in favour of respondent by her father‑‑‑Proof‑‑‑To prove such document, neither the original document was placed on record nor any explanation as to where the original document had gone, was given‑‑‑Witnesses of the document admitted that' the father did not execute the Will in their presence‑‑‑Respondent, held, failed to prove the execution of Will in her favour in circumstances. 1999 Y L R 380

8.         Sale transaction---Defendant's plea was that the sale transaction in favour of plaintiff was in fact a Benami transaction---Only witness examined on defendant's side was the defendant himself who categorically admitted that he was not present at the time of execution of disputed sale transaction and the subsequent re-conveyance of property---Defendant thus, could not vouch for the genuineness of sale-deed---No attesting witness of reconveyance was examined and plaintiff had categorically denied having executed such a deed---Execution of sale-deed reconveying property was thus, not proved by any legal evidence. 1990 S C M R 1259

9.         Proof of signatures of any person on the document—ordinary rule for the purpose would be to call that person in evidence—Where the person who was alleged to have executed document had denied his signatures, his signatures could be proved by calling the person in whose presence such document was executed—Signatures of executant could be proved by calling two attesting witnesses in whose presence, person concerned had signed the document—Where both the attesting witnesses of document in question were alive and were available but were not produced, in such case, Court could not hold on the basis of evidence on record that the execution of document in question was proved. PLD 2003 SC 676

Execution, in the context of Arts. 82 & 79 Qanun-e-Shahadat, 1984 not only meant signing by the executant but it meant and included attestation as well, which was the last of the series of acts necessary to give completeness and formal validity to a deed—Necessity of calling the attesting witness was not merely to prove the signature of the executant but to prove attestation as well—If the said witness turned hostile or refused to prove execution or attestation, other witness may be called for the same purpose. PLD 2003 SC 676

10.       Power of attorney—Proof of execution of document—Onus – Onus to prove that the document was a valid one was upon the Agent as he had asserted that on the basis of the power of attorney property owned by the principal had been legally transferred by him in the name of his brother—Failure of attorney to discharge his burden as per Art. 117 of the Qanun-e-Shahadat, 1984—High Court rightly interfered in the judgment of Lower Court. PLD 2003 SC 31

11.       Mode of proof of document-Scribe and authors of document not examined-Effect-Production of scribe and authors being one of the requirements of law, such documents could be proved even otherwise than production of said witnesses Oanun-eShahadat, 1984, being a comprehensive Code, it contemplates numerous modes for proof of documents. 1995 C L C 1441

12.       Copy of registered document‑‑‑Value‑‑‑Where the execution of a document was specifically denied, production of a certified copy of such document was not per se a proof of valid execution of the same from whom it purported to be executed‑-‑Presumption attached to a copy of registered document went merely to extent of document having been registered and not that same was executed by a particular person when execution thereof was denied by such person. 2002 M L D 322

13.       Proviso to Article 79 Proviso to Article 79 Qanun­e‑Shahadat, 1984 did not restrict the denial of execution by the executant of the document‑‑‑Proviso to. Art.79, Qanun‑e‑Shahadat, 1984 would not be applicable where execution of the document was denied in a suit or proceedings involving a registered document‑‑‑Party relying upon a registered document was only relieved of the duty of calling the attesting witness but was not absolved ‑ of its duty to prove the document. 2001 C L C 1078  Mst. Chandra Kali v. Bhabhuti Prasad and another AIR 1943 Oudh 416; Zaharul Hussain v. Mahadeo Ramji Deshmukh and others AIR 1949 Nag. 149 and Kartar Singh v. Didar Singh and others AIR 1934 Lah. 282 ref.

14.        Number of witnesses to be produced Sufficiency of the number of witnesses to be produced in a case may depend upon the facts and circumstances of each particular case. 2000 C L C 825

15.       Document required by law to be attested  Document cannot be used in evidence until two attesting witnesses have been called for such purpose‑‑‑Such witnesses are subject to conditions viz. the attesting witnesses are alive; are subject to the process of Court and they are capable of giving evidence. 2000 Y L R 915

16.       One marginal witness with scribe  Where in addition to one of the marginal witnesses, the scribe of the document appeared in the Trial Court and deposed that the agreement was scribed by him and thumb­ impressions were put by the defendant such statement of the scribe could be considered to be a statement of a marginal witness in circumstances. 2000 Y L R 2789

 Agreement to sell was proved through the statement of one marginal witness and scribe of the document in question‑‑­Ordinarily a scribe who had merely scribed a document and handed it over to parties for their signatures and the signatures of attesting witnesses would not become competent attesting witness, if such document was executed elsewhere in his absence‑‑‑Where, however, document in question, was actually executed in presence of scribe and parties and attesting witnesses had signed the same in his presence, he (scribe) could be treated as attesting witness although he had not signed the document in that capacity. 1993 C L C 257

17.       Presumption as to document‑‑‑Presumption to thirty years' old document under Art.100 of Qanun‑e‑Shahadat, 1984‑‑‑Presumption of correctness was attached to signature and contents of a thirty years old document produced from proper custody‑‑‑When a document would fulfil requirements of Art.100 of Qanun‑e‑Shahadat, 1984, person relying upon such document was not required to prove its execution, unless presumption was rebutted‑‑‑Provisions of Art.79 of Qanun‑e‑Shahadat, 1984 would not come into play if benefit of Art.100 of Qanun‑e‑Shahadat, 1984 was available to person having thirty years' old document. 1999 C L C 106 Abdul Aziz v. Muhammad Ashiq 1991 CLC 820; Muhammad Sher v. Mst. Taj Meena PLD 1996 Pesh. 6; Muhammad Ali v Hassan Muhammad PLD 1994 SC 245; Malik Amir Khan v. Muhammad Ishaque 1991 SCMR 1483; Umar Din v. M. Hussain 1983 SCMR 1299; Muhammad Shafi v. Mushtaque Ahmad 1996 SCMR 856 and Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

18.       Arbitration agreement Both the arbitrators had testified to the genuineness of agreement and the award ‑ Execution of agreement to refer dispute to arbitrators was not denied‑‑‑Such an agreement and award stood proved. 1999 C L C 1685

19.       Certified copy of document forming part of judicial record Mere production thereof, would prove that same was true copy of original document and such fact could not be objected, however, it would not mean that proof as required by provisions of Qanun‑e‑Shahadat need not be complied with‑‑‑When parties were at issue, then they had to prove facts as required by provisions of Qanun‑e‑Shahadat, 1984‑‑‑First Appellate Court, therefore, was right in observing that document in question (agreement to sell) should have been proved by placing on record original of the same‑‑‑Primary evidence being available, its proof' as required by Arts. 78 & 79, Qanun‑e‑Shahadat should have been furnished‑‑‑In absence of such proof document in question did not stand proved‑‑‑Certified copies placed on record would be treated as secondary evidence as per terms of Art. 76(g), Qanun‑e‑Shahadat, 1984‑‑‑Certified copies, thus, could not be treated as primary evidence‑‑­Production of original documents would, however, fulfil requirements of Art.73, Qanun‑e‑Shahadat but proof envisaged under Arts. 78 & 79 had to be furnished‑‑‑Plaintiff having not proved original documents had failed to discharge onus placed on him, therefore, findings recorded by Courts below regarding agreement to sell, would not call for interference‑‑‑Finding recorded by Courts below that suit filed by plaintiff was barred by limitation was also maintained on basis of same principles of proof of document‑‑‑Judgments and decrees of Courts below dismissing suit of plaintiff were. maintained in circumstances. 1997 C L C 1957 Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160 and Bengal Friends & Co. v. Gour Benode Saha & Co. PLD 1969 SC 477 ref.

20.       Two marginal witnesses‑‑‑Where in addition to one of the marginal witnesses, the scribe of the document appeared in the Trial Court and deposed that the agreement was scribed by him and thumb­ impressions were put by the defendant such statement of the scribe could be considered to be a statement of a marginal witness in circumstances. 2000 Y L R 2789

No lacuna in the evidence of marginal witnesses was apparent or pointed out, therefore, their veracity could not be discredited‑‑‑Evidence of such witnesses, alone was sufficient to prove the document in question, even if other evidence was altogether ignored. 1995 C L C 43 1992 MLD 860 rel.

 Document was attested by two witnesses‑‑‑One of the two witnesses supported the execution of the document while the other witness denied the execution in his presence‑‑‑Effect‑‑‑Such evidence fell far short of the required standard to discharge the onus‑‑­Document was not proved in circumstances. 2002 C L C 88

Where a document was required by law to be attested, the same would not be used in evidence, until at least two attesting witnesses had been called for purposes of proving its execution. 2002 M L D 1368

Perusal of evidence clearly indicated that Trial Court has rightly found that agreement to sell had not been established or proved‑‑‑Peculiar feature of agreement to sell was that it was recited therein that such agreement was being executed and consideration was being paid in presence of marginal witnesses; such document, however, had not been attested by any one‑‑‑Plaintiff had offered no explanation as to why document in question had not been witnessed by any one‑‑‑Non‑attestation of such important document by witnesses ‑ was highly unusual particularly when same contained recital relating to payment of huge amount‑‑‑Such omission was nit only significant but was also destructive of case of plaintiff particularly with regard to payment of specified amount as consideration which according to agreement was made in presence of marginal witnesses, though agreement itself showed that there were no marginal witnesses at all‑‑‑Agreement to sell was not proved in circumstances. 1997 C L C 1580

Signatures of executant could be proved by calling two attesting witnesses in whose presence, person concerned had signed those documents ‑‑‑ Where both attesting witnesses of document in question, were alive and were available but were not produced, in such case, Courts below could not hold on basis of evidence on record that execution of documents in question was proved. P L D 1996 Supreme Court 256

Plaintiffs had failed to prove that document in question, was legal document and with legal consideration‑‑‑Plaintiffs had themselves refused to examine marginal witnesses of agreement on flimsy ground that they would file revision petition‑‑‑Plaintiffs' plea that they wanted to send signatures of document in question for comparison to Finger Print Expert with the admitted signatures of defendant was of no avail, for defendant had not denied his signatures on that document‑‑‑Trial Court had rightly turned down application of plaintiffs for comparison of disputed signatures with admitted signatures in circumstances. 1996 C L C 385

Document required by law to be attested could not be used as evidence until at least two attesting witnesses had been called for purpose of proving execution thereof, if they were alive and capable of giving evidence‑‑‑ No evidence had been produced by defendants (donees) that scribe or attesting witnesses were not alive, therefore, presumption would be that they were alive‑‑‑Original gift deed was shown to have been executed on 29‑11‑1988 and date of registration as shown by said document was 28‑i1‑1988‑‑‑Such fact could not be ignored and that anomaly could have been resolved by scribe of document who could produce relevant register to settle the same‑‑‑Defendants' failure to produce scribe of document would render adverse presumption to be drawn against them‑‑‑Gift deed having not been proved in accordance with law, plaintiff who was daughter of deceased could not be deprived of her inheritance from her father's property:  1995 M L D 1841

21.       Agreement to refer the dispute to arbitration‑‑‑Provision of Art.79, Qanun‑e-Shahadat, 1984 would not be applicable to such an agreement. P L D 1994 Lahore 452

22.       Acknowledging signature by executant Objection that signatures on document were not that of the executant‑‑‑Executant in Court accepting and acknowledging signature to be his own‑‑‑Objection would be disallowed save where a third party is affected in which case such third party would be allowed to prove to the contrary. 1992 M L D‑‑833

Where execution of a registered document was denied by alleged executant, document would lose sanctity of being presumed to be correct and its veracity would depend upon quantum and quality of evidence to be produced to prove its execution ‑‑‑ Unless it was proved by producing impeccable evidence, finding could not rest merely on presumptions. 1991 C L C 820

23.       Agreement of sale not required to be attested by two witnesses Petitioner contended that two witnesses at least were required to be produced to prove execution of sale agreement whereas apart from scribe only one of the marginal witnesses was examined‑‑‑Agreement to sell was not required to be attested by two witnesses, execution of agreement of sale, therefore, would stand proved when one out of two attending witnesses had been examined. 1994 C L C 102

Agreement to sell does not require to be attested by witnesses and in this view, provision of Art.79, does not apply. 1990 C L C 1014

24.       Handwriting Expert Execution of document could be proved by scribe of the document as also by marginal witness--Production of Handwriting Expert was not a legal requirement. 1991 M L D 1037

25.       Mode of Proof of documents‑‑‑‑For proof of documents viz. signatures or handwritings, no specific manner of proof has been laid down by provisions of Art.78, Qanun‑e‑Shahadat‑‑ Although several modes of proof have come to be judicially recognised, yet the best one is the examination of the person who had signed or written the document‑‑Such modes of proof also include presumptive or circumstantial evidence‑‑Where a document was not duly proved by the person signing the same, but circumstances proved its execution, reliance could be placed on such a document. 1990 M L D 276 Abdul Samad v. Govendra Krishna Roy A I R 1925 Cal. 452; Abdool Ali v. Abdoor Rahman 21 Suthar‑Lands Weekly Reporter 429; Karali Prosad Dutta v. E.I. Railway Company AIR 1928 Cal. 498; Govardhandas v. Ahmedi Begum AIR 1953 Hyd. 181 and Gammon Pakistan Ltd. v. Pir Khan PLD 1979 Note 113 P. 84 ref.

Appellant examining attesting witnesses to prove execution of agreement but Courts below requiring production of expert evidence‑‑Nothing available on record to show that evidence of attesting witnesses on point was insufficient‑‑Finding of Courts below requiring production of expert evidence for proof of execution of agreement, held, was not justified‑‑No requirement of law existed to prove execution of a document by production of expert evidence‑‑Findings of Courts below set aside and case remanded for disposal in accordance with law. 1987 M L D 2065

Document, by any law, was required to be attested, production of attesting witness, if alive, held, was mandatory requirement-In absence of such requirement under any law for attestation of document by a witness, there would be no legal requirement to produce attesting witness to prove such document. P L D 1996 Quetta 232

80. Proof where no attesting witness found. If no such attesting witness can be found, it must be proved that the witness have either died, or cannot be found and that the document was executed by the person who purports to have done so.

Court Decisions

Opinion of Handwriting Expert Even if the opinion of Handwriting Expert is available on record, the same is a weak type of evidence and scarcely deserves serious consideration because the Courts of law are not under legal obligation to base their findings merely on Expert's opinion; there must be positive evidence available on record to prove a particular document. 2002 C L C 1244 Ch. Abdul Hamid v. Deputy Commissioner and others 1985 SCMR 359; Law of Evidence, Vol. I by M. Monir Khan, J. and Syed Shabir Hussain v. The State 1968 SCMR 1126 ref.

Comparison  Comparison of disputed signatures of deceased on alleged agreement of sale with her admitted signatures showed that the same were signed by different person.---Non-production of any of the attesting witnesses would cause inference to be drawn against defendant. 1999 M L D 1

81. Admission of execution by party to attested document. 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.

Court Decisions

Admission of liability by a party in his letter Decision of Court was based on document/letter of specified date written by appellant to the Chairman of Corporation, wherein he had admitted liability to pay Corporation's claim‑‑‑Appellants had not challenged genuineness of such document/letter, but admitted the same to be genuine and correct‑‑‑Fact that such document was not exhibited would not exclude such document from being taken into consideration and basing judgment thereon‑‑­Admitting the document in question, in evidence, and relying upon the same would not be an illegality so as to vitiate the judgment and decree passed by the Court and confirmed in appeal‑‑‑Decree and judgment based upon such document was thus, valid especially when no other evidence, oral or documentary, was produced by the parties. 1993 S C M  R 1137

82. Proof when attesting witness denies the execution. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

Court Decisions

Provisions of Art.82 of Qanun‑e-Shahadat, 1984 would come into play to obtain proof of the document through other evidence only when the attesting witnesses either denied or did not recollect the execution' of the document. 2002 C L C 722

Ordinary rule for the purpose would be to call that person in evidence—Where the person who was alleged to have executed document had denied his signatures, his signatures could be proved by calling the person in whose presence such document was executed—Signatures of executant could be proved by calling two attesting witnesses in whose presence, person concerned had signed the document—Where both the attesting witnesses of document in question were alive and were available but were not produced, in such case, Court could not hold on the basis of evidence on record that the execution of document in question was proved.

Execution, in the context of Arts. 82 & 79 Qanun-e-Shahadat, 1984 not only meant signing by the executant but it meant and included attestation as well, which was the last of the series of acts necessary to give completeness and formal validity to a deed—Necessity of calling the attesting witness was not merely to prove the signature of the executant but to prove attestation as well—If the said witness turned hostile or refused to prove execution or attestation, other witness may be called for the same purpose. PLD 2003 SC 676

Execution can be proved by calling the person who has signed or has written the document or in whose presence the document has been signed or written or by calling Handwriting Expert who has examined the disputed signature‑‑‑ Execution can be proved by calling a person acquainted with the handwriting of a person who has signed or written the document‑‑‑Court can also compare the disputed signature or writing with some admitted signature or writing‑‑‑Even circumstantial evidence can be adduced in proof of execution of the document. 2002 C L C 1244

Execution of "Will" in favour of respondent by her father‑‑‑Proof‑‑‑To prove such document, neither the original document was placed on record nor any explanation as to where the original document had gone, was given‑‑‑Witnesses of the document admitted that' the father did not execute the Will in their presence‑‑‑Respondent, held, failed to prove the execution of Will in her favour in circumstances. 1999 Y L R 380

83. Proof of document not required by law to be attested. An attested document not required by law to be attested may be proved as if it was un-attested.

Court Decisions

Execution of document Executing a document is signing a document as consenting party thereto‑­‑Execution consists in signing a document written out, read over and understood by the person signing the same‑‑‑Execution can be proved by calling the person who has signed or has written the document or in whose presence the document has been signed or written or by calling Handwriting Expert who has examined the disputed signature‑‑‑ Execution can be proved by calling a person acquainted with the handwriting of a person who has signed or written the document‑‑‑Court can also compare the disputed signature or writing with some admitted signature or writing‑‑‑Even circumstantial evidence can be adduced in proof of execution of the document. 2002 C L C 1244

84. Comparison of signature, writing or seal with others admitted or proved. (1) 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.

(2) 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.

(3) This Article applies also, with any necessary modifications, to finger-impressions.

COMMENTARY

Comparison of signatures. Genuineness. Trial Court’s competency to compare signatures. Where parties had not brought forward any expert witness to given opinion about genuineness of signatures in question, trial Court would be competent to form its own opinion by comparing disputed signatures with admitted signature.5

Comparison of signatures. High Court compared signatures of vendee on disputed document with his signatures on admitted document to find out if the signatures were in fact of the same person i.e., vendee.6

Comparison of signatures on questioned document with signatures on admitted documents by Court. Deceased, whose signatures were in dispute being illiterate could not affix proper signatures, therefore, his signatures would fall in the category of “shaky signatures”. Close scrutiny of signatures on questioned documents when compared with admitted signatures, revealed, prima faice that those signatures were of one and the same person. Trial Court had thus, correctly discharged its duty while making comparison of disputed signatures with admitted signatures.7

Power of attorney---Authenticity of—Tenant who was residing abroad had defended ejectment case against him through his attorney/alleged subtenant—Attorney, who claimed to be lawfully constituted attorney of the tenant, had produced photocopy of the power of attorney, which was not even attested—Rent Controller after comparing the admitted signatures with disputed signature on power of attorney, had concluded that the power of attorney was not executed by the tenant in favour of alleged attorney—Rent Controller was empowered to compare the disputed signature, with the admitted signatures and to form his view being permissible under Art. 84 of Qanun-e-Shahadat, 1984—High Court, however, compared the signatures with the disputed ones and found them of different persons—Findings of Rent Controller could not be interfered with. Ghulam Rasool v. Sardarul Hasan 1997 SCMR 976 ref. 2001 Lawvision 45 = 2001 MLD 1893

Procedure—Signature on document can be proved by admission of executant or by referring the admitted and disputed signatures of executant to handwriting expert; comparison of them by Court or by other circumstantial evidence‑‑‑One of the scientific modes of proving disputed signature is to refer it to handwriting expert with admitted signature for his opinion after comparing the disputed with the admitted one‑‑‑Court although competent to compare disputed and admitted signatures to ascertain genuineness of disputed signature such procedure is risky and has to, be adopted with caution and sparingly‑‑‑Where the mode provided under law for proving disputed signature has not been adopted it will not be a safe course for Court to compare signatures and give finding on it. 1993 C L C 747

Courts are empowered under Art. 84 of Qanun-e-shahadat, 1984,  to make comparison of words or figures so written over a disputed document to that of admitted writing/signature and the court can exercise its judgments on resemblance of admitted writing on record but it is undesirable that a Presiding officer of Court should take upon himself the task of comparing signature in order to fine out whether the signature/writing resembles to the disputed signature/writing with the admitted or proved writing. 2004 S C M R 361

Trial court had appreciated evidence and other documents with regard to alleged agreement of sale—Trial court had also compared signatures of deceased executant of said agreement with other documents—Trial Court was empowered to undertake said exercise within meaning of Art. 84 of Qanun-e-Shahadat, 1984. 2004 M L D 251

Comparison of signatures and thumb-impression--- Variations in, signatures ---Natural variation in the signatures of a person may appear due to variety of reasons, such as passage of time, age, infirmity and illness etc.---Person may also attempt to disguise his signatures to defeat a transaction but in presence of thumb­ impression, there is no possibility of any variation.

Application of the petitioner for comparison of signatures was dismissed by the Trial Court on the ground that the case was a direction case and such exercise would prolong proceedings of the suit ---Validity--Report of Handwriting Expert, subject to the objections, if any, would have facilitated the Trial Court to formulate its opinion on the question and the same would have been a judicious exercise of discretion if the application was allowed---Delay was ,not a factor which could have come in the way of the exercise of discretion, for, such a course would have advanced the cause of justice-Finding of the Trial Court was most arbitrary and exercise of discretion was not based on sound legal principle---Trial Court had exercised the jurisdiction illegally and with material irregularity---Order passed by the Trial Court was set aside and application of the petitioner was allowed in circumstances. 2001 Y L R 1279 1976 SCMR 350 and 1992 SCMR 1778 ref.

Powers of Court --- Court, in certain eventualities was enjoined with powers to itself compare signatures alongwith other relevant material to effectively resolve main controversy. 1999 S C M R 85

Comparison of disputed signatures with admitted signatures of a party by Court would be permissible to enable Court to reach conclusion whether two signatures were of the same person‑‑Superior Courts, however, disapproved such practice by Court specially when person undertaking such comparison was not conversant with the subject and same was done without guidance derived from arguments of counsel and evidence of expert‑‑Comparison of disputed signature with admitted signatures by Trial Court without opinion of expert and guidance from arguments of counsel could not be accepted as conclusive proof of fact that disputed document was signed by a party or not. 1987 C L C 282

 Court was entitled to compare disputed signatures with admitted signatures of concerned person in terms of Art. 84, Qanun-e-Shahadat, 1984. 1996 C L C 7 1985 SCMR 214 : PLD 1962 SC 102 and 1993 CLC 1779 rel.

Deceased, whose signatures were in, dispute being illiterate could not affix proper signatures, therefore, his signatures would fall in the category of "shaky signatures"‑‑‑‑Close scrutiny of signatures on questioned documents when‑ compared with admitted signatures, revealed, prima facie that those signatures were of one and the same person‑‑‑Trial Court had thus, correctly discharged its duty while making comparison of disputed signatures with admitted signatures. 1995 C L C 43  1985 SCMR 214 and 1985 SCMR 359 rel.

First Appellate Court was although empowered to compare signatures of a person with his admitted signatures, yet while expressing different opinion it should have pointed out as to where Trial Court was wrong or committed mistake in its opinion while comparing disputed signatures with admitted signatures. P L D 1994 Supreme Court 162

Court although competent to compare disputed and admitted signatures of a person such procedure. is risky and has to be adopted with caution and sparingly. 1993 C L C 747  1985 SCMR 214 and 1985 SCMR 359 rel

Opinion of Handwriting Expert whether binding on Court‑‑‑Even if the opinion of Handwriting Expert is available on record, the same is a weak type of evidence and scarcely deserves serious consideration because the Courts of law are not under legal obligation to base their findings merely on Expert's opinion; there must be positive evidence available on record to prove a particular document. 2002 C L C 1244 1985 SCMR 359 1968 SCMR 1126 ref.

Comparison of disputed signatures with admitted signatures- Comparison of disputed signatures of deceased on alleged agreement of sale with her admitted signatures showed that the same were signed by different person.---Non-production of any of the attesting witnesses would cause inference to be drawn against defendant. 1999 M L D 1

Petitioner's plea that documents on the files of another suit which was decided as far back as in year 1978, containing respondent's signatures be summoned and documents containing his signatures therein be sent to Handwriting Expert alongwith specimen signatures of respondent obtained in Court, was not acceded to by Trial Court‑‑‑Petitioner's revision against order of Trial Court was also dismissed by High Court‑‑‑Validity‑‑‑Finding of High Court to the effect that documents on the file of another suit which was decided as far back as in the year 1978, had never been confronted to respondent and signatures on documents, appended to that file had neither been proved nor admitted to be correct by respondent‑‑‑Signatures on said documents, therefore, could not legally be made basis for comparison of signatures on disputed documents was unexceptionable and in aid of justice‑‑‑Leave to appeal was refused in circumstances. 1998 S C M R 471

Trial Court recording its finding on question of signature by comparing signature in dispute with admitted signature‑‑‑Petitioners objecting to such procedure (adopted by Court) by maintaining that signature in question with admitted signature should have been referred to Handwriting Expert‑‑­Validity‑‑‑Petitioner's contention was untenable, for it was within power of Court to compare signature in question with admitted signature and to form its view though matter should ordinarily be referred to Handwriting Expert‑‑‑Fact that such matter was not referred to Handwriting Expert would not render relevant order/judgment legally infirm so as to warrant interference. 1997 S C M R 976 

Report and statement of Handwriting Expert was discarded by Trial Court for valid reasons, one of which was that on comparison of disputed signatures with admitted signatures of plaintiff it was quite obvious that signatures were not similar‑‑‑High Court itself had also examined signatures appearing on disputed agreement and compared the same with signatures on written statement and specimen signatures and found that Trial Court was correct in observing that there was dissimilarity between those signatures‑‑‑Report of Handwriting Expert, however, was not binding on Court nor was it to rely upon said report simpliciter without there being corroborative evidence. 1997 C L C 1580

Handwriting Expert need not be examined in every case‑‑­Court itself was entitled to make independent comparison of Handwriting apart from opinion of expert as contemplated by Art. 84, Qanun‑e‑Shahadat, 1984. 1996SCMR464  1974 SCMR 490 rel.

Comparison of thumb-impression---Application for referring the matter to Finger Prints Expert---Objection was raised to the application that the same could not be filed after framing of issues or conclusion of evidence ---Validity--­Such objection was devoid of force as no law prohibited the filing of such application at any stage of the proceedings. 2002 C L C 760

Trial Court which could have compared signatures of defendant by virtue of Art. 84 of Qanun‑e‑Shahadat, 1984 had failed to do that‑‑‑Judgment passed by trial Court was not based on sound reasoning, particularly when there was an admission on part of defendant‑‑ ‑Defendant had neither denied contents of paragraph of the plaint of plaintiff with regard to execution of agreement nor could rebut contentions raised by the plaintiff‑‑‑Trial Court having failed to consider all circumstances of case and having failed to write judgment in accordance with law and in view of evidence available on record, judgment of Trial Court/Small Causes Court was set aside. 2002 M L D 1087

Variation---Signatures 'of some individuals vary in details with passage of time. 1995 M L D 352

85. Public documents. 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 a foreign country;

(2) public records kept in Pakistan of private documents;

(3) documents forming part of the records of judicial proceedings;

(4) documents required to be maintained by a public servant under any law; and

(5) registered documents the execution whereof is not disputed.

COURT DECISIONS

1.                  Public document

2.                  Admissibility of certified copies in evidence

3.                  Roznamcha waqiati

4.                  Registered sale-deed

5.                  Certified copies of certified copies 

6.                  Registered Nikahnama

7.                  Register of Births and Deaths

8.                  Production of certified copies of Public Documents 

1.         Public document‑.All documents of a judicial proceedings, were not necessarily "Public documents" and certified copies of such documents which were not `public documents' were inadmissible in evidence‑‑‑Documents which were not copies of judicial record, should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them‑‑‑Statements previously made in Court could not be allowed to form part of proceedings unless identity of persons making such statements established‑‑‑Objection of formal proof of documents must be taken at earliest point of time‑‑‑When documents once were admitted in evidence, objection against such admission could not be allowed at appellate stage‑‑‑Admission of a document in evidence without objection from opposite side, would dispense with requirement of its formal proof. 1992 M L D 884 PLD 1967 Lah. 1051; PLD 1973 SC 160; Khawaja Muhammad Razzaque v. Omar Farouk 1982 CLC 318; 1983 SCMR 1137; PLD 1968 SC 140; PLD 1975 SC 678 ref.

Public document could not be ignored merely because the same was not confronted and was not produced in Court within seven days‑‑‑Intrinsic value of a public document was to be examined on its contents‑‑‑Where it was not proved that copy of a public document was a false document nor it had been shown that Government functionaries had any special interest to manipulate the same as to deprive any person from his property, and the party concerned, in cross‑examination, had admitted its contents, there was no need for getting such document confronted. P L D 2002 Supreme Court 4

86. Private documents. All other documents are private.

87. Certified copies of public documents. 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 therefore, 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 Article.

88. Proof of documents by production of certified copies. 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.

89. Proof of other public documents. The following public documents may be proved as follows: --

(1) Acts, orders or notifications of the Federal Government in any of its departments, 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;

(2) the proceedings of the Legislatures,-- by the journal of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed by order of the Government concerned;

(3) 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 Federal Act;

(4) 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 of such body;

(5) 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 foreign country.

COMMENTARY

Foreign document. Mode of proof. Foreign document can be proved by the original or by certified copy thereof, which must be certified by legal keeper of document, certificate of Notary Public and Pakistan’s Diplomatic Agent in that country. Presumption of genuineness and accuracy would attach to certified copies of foreign judicial record, if they were certified in said manner.8

PRESUMPTION AS TO DOCUMENTS

90. Presumption as to genuineness of certified copies. (1) 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 Federal Government or a Provincial 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.

(2) 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 document.


91. Presumption as to documents produced as record of evidence. 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 is 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 the 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.

92. Presumption as to genuineness of documents kept under any law. The Court shall presume the genuineness 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.

93. Presumption as to maps or plans made by authority of Government. The Court shall presume that maps or plans purporting to be made by the authority of the Federal 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.

94. Presumption as to collections of laws and reports of decision. 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 to contain reports of decision of the Courts of such country.

95. Presumption as to powers-of-attorney. 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, Magistrate, Pakistan Consul or Vice-Consul, or representative of the Federal Government, was so executed and authenticated.

96. Presumption as to certified copies of foreign judicial records. (1) 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 Federal Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records.

(2) An officer who, with respect to any territory or place not forming part of Pakistan, is a Political Agent therefore, as defined in section 3, clause (40), of the General Clauses Act, 1897 (X of 1897), shall for the purposes of clause (1), be deemed to be a representative of the Federal Government in or for the country comprising that territory or place.

97. Presumption as to books, maps and charts. 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 or 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.

98. Presumption as to telegraphic messages. The Court may presume that message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message 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.

99. presumption as to due execution, etc., of documents not produced. The Court shall presume that every document, called for and produced after notice to produce, was attested, stamped and executed in the manner required by law.

100. Presumption as to documents thirty years old. 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 persons; 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. For the purposes of this Article and Article 92, 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 it the circumstances of the particular case are such as to render such an origin probable.

Illustrations

(a) A has been in possession of landed property for long time. Her 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 mortgagee. 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.

COMMENTARY

Presumption about genuineness of documents thirty years old. Raising of presumption or refusing to raise presumption is discretionary with Court as Art 100 lays down that the Court “may presume” and not that Court “shall presume”. However, like all other discretions, discretion under Art. 100 should be exercised indicially. Court may refuse to raise presumption where it has reasons to believe the document to be a fabrication or when grave suspicion attaches to it.10

101. Certified copy of documents thirty years old. --- The provisions of Article 100 shall apply to such copy of a document referred to in that Article as is certified in the manner provided in Article 87 and is not less than thirty years old; and such certified copy may be produced ill proof of the contents of the document or part of the document of which it purports to be a copy.

CHAPTER VI
OF THE EXCLUSION OF ORAL BY DOCUMENTARY
EVIDENCE

102. Evidence of terms of contracts, grants and other disposition of property reduced to form of documents. --- 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 evidence 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 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 Pakistan may be proved by probate.

Explanation 1. This Article applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.

Explanation 2. Where there are more originals than one, are original only need be proved.
Explanation 3. The statement, in any document whatever, of a fact other than the facts referred to in this Articles, 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 is contained in a bill of exchange, the bill of ex change 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 was 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.

COMMENTARY

Oral evidence relating to contents of documents was inadmissible.1

Exclusion of oral evidence by documentary evidence. Where payment of consideration was evidence by document only that document would be considered as proof of such consideration and no oral evidence would be admissible.2

103. Exclusion of evidence of oral agreement. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last Article, 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 an matter on which a document is silent, and which is not inconsistent with its terms may be proved. In considering whether or not to this proviso applies, the Court shall have regard 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 case in which such contract, grant or disposition or property is by law required to be in writing, or has been registered according to the law inforce for the time being as to the registration of documents.

Proviso (5). Any usage of custom by which incidents not expressly mentioned in any contract are usually annexed to contract 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 Karachi to London”. The goods are shipped in a particular ship which is last. The fact that particular ship was orally excepted from the policy cannot be proved.

(b) A agrees absolutely in writing to pay B Rs. 1,000 on the first March, 1984. 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 Khanpur 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 specified performance of a contract and also prays that the contract may be reformed as to one of its provisions, as that provisions 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 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 a horse for Rs.500”. B may prove the verbal warranty.

(h) A hires lodging 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 lodging of B for a year, an regularly stamped agreement, drawn up by an advocate is made between them. It is silent on the subject of board. A may not prove that board was included in the terms 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 sent 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.

COMMENTARY

Art. 103 --- Exclusion of evidence of oral agreement --- Party cannot be permitted to adduce oral agreement or statement to contradict or vary the terms of proved agreement executed by him.1a

Pre-emption suit. Compromise. Document of compromise was not stamped and element of consideration was conspicuously missing in the same. Such document being not a contract, grant, or other disposition of property reduced to the form of document to exclude evidence of oral agreement within the contemplation of Art. 103. Qanun-e-Shahadat, case was not covered by O.XXIII, R. 3, C.P.C.3

Pre-emption suit. Compromise. If the document is silent with regard to matter about which oral agreement exists, then the same is allowed to be proved provided that same is not inconsistent with the document.4

Liquidated damages. Omission in agreement to sell to describe property which was intended to be sold. Such omission could validly be proved by oral evidence that specific property was agreed to be sold. Parties to a document could show by other evidence that a writing executed by them did not represent a completed transaction. Extrinsic evidence to determine the effort of an instrument was permissible where there was doubt as to its true meaning. Conduct of parties was admissible where a document was obscurely framed or any of its clauses contained a doubt as to its true meaning. Courts below on basis of oral evidence had rightly decided that defendant had been guilty of breach of contract and was liable for such breach to pay agreed amount as damages.5

Agreement to sell. Document of. Whether oral evidence could be led to prove property which was intended to be sole. Question of. No doubt Article 102 excludes extrinsic evidence in proof of a contract, grant or other disposition of property. Under proviso (2) to Article 103, parties to a document may show by other evidence that a writing executed by them does not represent a completed transaction. Extrinsic evidence is also permissible to determine effect of an instrument where its true meaning are doubtful. Held: Other evidence is admissible to prove property which was intended to be sold but was omitted to be described in agreement. Petition dismissed.6

104. Exclusion of evidence against application of document to existing facts. When language used in a document is plain in itself, and when it applied accurately to existing acts, evidence may not be given to show that it was not meant to apply to such facts.

Illustration

A sells to, 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 not situated at the different place and of a different size.

105. Evidence as to document unmeaning in reference to existing facts. When language used in a document in plain is itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.

Illustration

A sells to B, by deed “my house in Karachi.”

A had no house in Karachi, but it appears that he had a house at Keamari, of which B had been in possession since the execution of the deed.

These facts may be proved to show that the deed related to the house at Keamari.

106. Evidence as to application of language which can apply to one only, of several persons. 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 thing, 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 acts which show which of them was meant.

(b) A agrees to accompany B to Hyderabad. Evidence may be given of facts showing whether Hyderabad in the Dekkhan or Hyderabad in Sindh was meant.

107. Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies. 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 to at X. Evidence may be given of facts showing which he meant to sell.

108. Evidence as to meaning of illegible characters, etc. Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, absolute, 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 mods.”

A has both models and modeling tools. Evidence may be given to show which he meant to sell.

109. Who may give evidence of agreement varying terms of document. 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 show as between A and B, but it might be shown by C, if it affected his interest.

110. Saving of provisions of Succession Act relating to wills. Nothing in this Chapter contained shall be taken to affect any of the provisions of the Succession Act, 1925 (XXXIX of 1925), as to the construction of wills.

PART II
ON PROOF
CHAPTER VII
FACTS WHICH NEED NOT BE PROVED

111. Fact judicially noticeable need not be proved. No fact of which the Court will take judicial notice need be proved.

112. Facts of which Court must take judicial notice. (1) The Court shall take judicial notice of the following facts: ---

(a) All-Pakistan laws:

(b) Articles of War for the Armed Force;

(c) the course of proceeding of the Central Legislature and any person is authorized to use by any Legislature established under any law for the time being in force in Pakistan;

(d) the seals of all the Courts in Pakistan and of all Courts out of Pakistan established by the authority of the Federal Government or the Government representative, the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public and all seals which by any Act or Regulation having the force of law in Pakistan;

(e) 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 the official Gazette;

(f) the existence, title and national flag of every State or Sovereign recognized by the Federal Government;
(g) the divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the official Gazette;

(h) the territories under the dominion of Pakistan;

(i) the commencement, continuance and termination of hostilities between Pakistan and any other State or body of persons;

(j) 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 and other persons authorized by law to appear or act before it;

(k) the rule of the road on land or at sea.

(2) In all cases referred to in clause (1), 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.

(3) If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

COMMENTARY

Official Gazette notification can be looked into by Court and judicial notice can be taken under Art. 112.6a

113. Facts admitted need not be proved. --- 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 at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

COMMENTARY

Suit for specific performance of agreement to sell --- Respondent admitted the execution of agreements in her first written statement and in her cross-examination, but she subsequently in amended written statement took the plea that agreements were fictitious, forged and fraudulent --- Trial Court decreed the suit, but was set aside by Appellate and Revisional Court --- Validity --- Admission made by respondent in her first written statement would be binding on her under Art. 113 of Qanun-e-Shahadat, 1984 --- Such admission stood corroborated by her own further statement made in cross-examination with regard to due execution of agreements and passing of consideration, besides overwhelming oral and documentary evidence of appellant and her marginal witnesses --- Subsequent denial of execution of agreements and receipt of amounts stated therein, and non-mentioning of Identity Cards of respondent and marginal witnesses in the agreements would not make them doubtful --- Respondent could not be allowed to lead oral agreement or make statement to contradict, vary, add or subtract the terms of agreements, which were reduced into writing under Art. 103 of Qanun-e-Shahadat, 1984 --- Inconsistent conduct and denial of admitted facts by respondent proved that she had not come to Court with clean hands --- Supreme Court allowed the appeal and set aside the impugned judgments and decrees and restored that passed by the Trial Court.7


CHAPTER VIII
ESTOPPEL

114. Estoppel. 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, he had no title. He must not be allowed to prove his want of title.

COMMENTARY

Estoppel. If a party, by it conduct obliges the Court to adopt a course which is contrary to its practice, that party will be debarred from raising objection as to the procedure on the very salutary principle that after having led the Court to do a certain thing for the benefit of the parties, none of them can be allowed to challenges the same.7

Estoppel. Once a mode (procedure) is adopted by the High Court on the request of the parties, the decision given in pursuance of that mode should be given effect to. Necessary corollary of such rule would be that the same parties were estopped from subsequently challenging that mode of decision in an appeal.8

Estoppel. Party accepting a benefit under a compromise, an award, or a partition was estopped from questioning the transaction.9

Non-raising of question of limitation would neither be waiver nor estoppel.1

Estoppel. Where a party persuaded a Tribunal to adopt a particular course for determining the issue in question and accepted benefit of such, arrangement, he cannot be allowed to repudiate when it comes to liabilities and obligations thereunder.2

Estoppel. Benefit or rule of estoppel. Entitlement of only that party who, while acting on the representation of another person had changed its position to its prejudice could claim benefit of rule of estoppel. Where, however, correct factual position was within knowledge of the represented or would have come to his knowledge, on making inquiry as he ought to have reasonably made, rule or estoppel was not attracted.3

115. Estoppel of tenant and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when which license was given.

COMMENTARY

A person entering premises as tenant cannot be permitted to deny that status as estoppel under Art. 115 would operate and principle “once a tenant always a tenant” would apply.4

Once a tenant always a tenant. Tenant having been inducted as a tenant cannot claim adverse to what was acquired by him in a lawful manner. Tenant’s claim that he had acquired title through sale having not been established, no period of limitation would stand against owners to seek declaration of title against such person.5

Tenancy of land once entered upon would continue until determined in accordance with requirement of law.6

116. Estoppel of acceptor of bill of exchange, bailee or licensee. No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailer or licensor had, at the time then 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 bailer, 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 THE BURDEN OF PROOF

117. Burden of proof. (1) 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.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Illustrations

(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 to certain land in the possession of B by reason of facts which he asserts, and which B denies be true.

A must prove the existence of those facts.

COMMENTARY

Burden of proof. Transfer of property through mutation. Burden of proof in case of transfer of property through mutation is on vendee.8

118. On whom burden of proof lies. 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.
Illustrations

(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 say 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.

COMMENTARY

Tort. Damages. Publication of article in the magazine owned and edited by defendant relating to murder case of ex-Prime Minister. Plaintiff’s conduct in said murder case as counsel was ridiculed and his reputation as a lawyer was injured. Defendant claiming truth of allegations. Initial onus of proving that contents of said article were true and publication was not made with mala fides but by intelligent zeal in public interest, was to be discharged by defendant, who failed in doing so. Anything published against a person rendering him ridiculous and, contemptible was nothing but defamation. Defendant was, thus, liable to pay damages to plaintiff for publishing article in question, against him.1

119. Burden of proof as to particular fact. 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.

Illustrations

(a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft, to A, A must prove the admission.

(b) B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.

120. Burden of proving fact to be proved to make evidence admissible. 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.

Illustrations

(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.

121. Burden of proving that case of accused comes within exceptions. When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception of proviso contained in any other part of the same Code, or in any law defining the offence, is upon hi, and the Court shall presume the absence of such circumstances.

Illustrations

(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, alleged 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 (Act XLV of 1860), 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 section 335 lies on A.

122. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden to proving that fact is upon him.

Illustrations

(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 traveling on a railway without a ticket. The burden of proving that he had a ticket is on him.

123. Burden of proving death of person known to have been alive within thirty years. Subject to Article 124, 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.

124. Burden of proving that person is alive who has not been heard of for seven years. 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 had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

125. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent. 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.

126. Burden of proof as to ownership. 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.

127. Proof good faith in transactions where one party is in relation of active confidence. When 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 transaction is on the party who is in a position of active confidence.
Illustrations

(a) The good faith of a sale by a client to an advocate is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the advocate.

(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.

128. Birth during marriage conclusive proof of legitimacy. (1) The fact that any person was born during the continuance of a valid marriage between his mother and any man and not earlier, that the expiration of six lunar months from the date of the marriage or within two years after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless--

(a) the husband had refused, or refuses, to own the child; or

(b) the child was born after the expiration of six lunar months from the date or which the woman had accepted that the period of iddat had come to an end.

(2) Nothing contained in clause (1) shall apply to a non-Muslim if it is inconsistent with his faith.

129. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course to natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations

The Court may presume—

(a) that a man who is in possession of stolen good 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 thins 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 obliger, 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 shopkeeper 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, 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 shop 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 years 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 used, 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.

COMMENTARY

Summons sent in properly addressed and prepaid envelopes. Presumption. Presumption under Art. 129 (e), Qanun-e-Shahadat Order, 1984 and S. 27, General Clauses Act, 1897, would be that summons in question, were duly served on defendants by registered post. Such presumption although was rebuttable but nothing was brought on record to rebut such presumption.2

Official acts are presumed to have been performed with regularity.3

Presumption. Sale of land. Question that the seller of land was a person of unsound mind. Trial Court and Appellate Court had noted that although sale-deed was presented for registration on 2nd January, 1964 but it was registered only after 18th July, 1964 when it was represented. Trial Court had also taken into account interpolation made in the endorsement which was evident on the face of the document. Written statement showed that medical certificate was produced by appellants, before the Sub-Registrar at the time of registration of sale-deed but the said certificate had not been produced but was withheld by appellants. Courts below, held, were justified to draw presumption against the appellants.4

Registered document. Presumption. Presumption of truth is attached to registered document.5

Evidence withheld by a party. Held: Inference can be drawn that such evidence should have adversely affected party with-holding evidence.6

CHAPTER X
OF THE EXAMINATION OF WITNESSES

130. Order of production and examination of witnesses. 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.

131. Judge to decide as to admissibility of evidence. (1) 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.

(2) 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.

(3) If the relevancy of the 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.

Illustrations

(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under Article 46.

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 be 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 proved 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 or 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.

132. Examination-in-chief, etc. (1) The examination of a witness by the party who calls him shall be called his examination-in-chief.

(2) The examination of a witness by the adverse party shall be called his cross-examination.

(3) The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

133. Order of examinations. (1) 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.

(2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

(3) 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 that matter.

COMMENTARY

Witness can be re-examined with permission of Court in case any ambiguity crops up during cross-examination which needs clarification or elucidation.6a

Order of examination as prescribed in Arts. 133, 150 is meant to elicit true facts from the witness, the party at whose instance the witness has been produced would of course examine and as such put forth its case. Thereafter, to test the credibility or veracity of the witness, the adverse party has been granted the right of cross-examining him. If some ambiguity or confusion has arisen during cross-examination, the party can re-examine the witness and if some new fact has been introduced then the adverse party can cross-examine him further.6b

The examination-in-chief, cross-examination and re-examination all make one statement. The whole exercise is undertaken to extort truth so that complete justice may be dispensed. During course of statement, if a witness produced by prosecution deviates from true facts and the same are being suppressed in order to extend concession or due to some other ulterior motive, the Court can permit the party to cross-examine his own witness.6c

Re-examination of a witness. It is possible that during the course of re-examination a witness while clarifying or elucidating a fact may suppress the truth or state something which appears to be palpably false or self-contradictory or for some allied reason, then permission can be sought from Court to cross-examine that witness. In such case Court may grant permission to cross-examine the witness in the interest of justice.7

134. Cross-examination of person called to produce a document. A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.

135. Witnesses to character. Witnesses to character may be cross-examined and re-examined.

136. Leading questions. Any question suggesting to answer which the person putting it wishes or expects to receive is called a leading question.

137. When leading questions must not be asked. (1) 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.

(2) The Court shall permit leading questions as to matters which are introductory or undisputed; or which have, in its opinion been already sufficiently proved.

138. When leading questions may be asked. Leading questions may be asked in cross-examination.

139. Evidence as to matters in writing. 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 documents, 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 that party who called the witness to give secondary evidence of it.

Explanation. A witness may give oral evidence of statement 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.

140. Cross-examination as to previous statements in writing. 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.

COMMENTARY

State counsel unauthorized to cross-examine his own witness with leave of Court if witness does not support prosecution during trial. If, however, permission under Art. 140 is not sought and witness was not got declared hostile, Court is bound to give credit to statement of witness and give whatever benefit from evidence of such witness goes to accused. Benefit of such evidence, however, would not be extended to all accused facing trial, but would be extended only to accused in whose favour such evidence has been given. For this reason alone, prosecution case against other accused persons shall not be disbelieved.

141. Questions lawful in cross-examination. When a witness 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 question might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

142. When witness to be compelled to answer. If any such question relates to a matter relevant to the suit or proceeding, the provisions of Article 15 shall apply thereto.

143. Court to decide when question shall be asked and when witness compelled to answer. If any such question relates to a matter not relevant to the suit or proceeding, except insofar 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 considerations:--

(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 testified;

(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 slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testified;

(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.

144. Question not to be asked without reasonable grounds. No such question as is referred to in Article 143 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded.

Illustrations

(a) An advocate is instructed by an attorney that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait.

(b) An advocate is informed by a person in Court that an important witness is a dakait. The informant, on being questioned by the advocate, given satisfactory reasons for his statement. This is 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 means of living, gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a dakait.

145. Procedure of Court in case of question being asked without reasonable grounds. If the Court is of opinion that any such question was asked without reasonable grounds, it may, if it was asked by any advocate, report the circumstances of the case to the High Court or other authority to which such advocate is subject in the exercise of his profession.

146. Indecent and scandalous question. The Court may forbid any question 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 they relate to facts in issue, or to matters necessary to be known in order to determine whether on not the facts in issue existed.

147. Procedure of Court in cases of defamation, libel and slanders. When a person is prosecuted or sued for making or publishing an imputation of a defamatory, libelous or slanderous nature, the Court shall, not, before it has recorded its findings on the issues whether such person did make or publish such imputation, and whether such imputation is true, permit any question to be put to any witness for the purpose of injuring the character of the person in respect of whom such imputation has, or is alleged to have, been made, or any other person, whether dead or alive, in whom he is interested, except insofar as any such question may the necessary for the purpose of determining the truth of the imputations alleged to have been made or published.

148. Questions intended to insult or annoy. 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.

149. Exclusion of evidence to contradict answers to questions testing veracity. When a witness has been asked and has answered any question which is relevant to the inquiry only insofar 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 1. If a witness is asked whether he has been previously convicted of nay crime 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.

Illustrations

(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 Lahore.

A is asked whether he himself was not on that day at Faisalabad. He denies it.

Evidence is offered to show that A was on that day at Faisalabad.

The evidence is admissible, not as contradicting A on a fact which effects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore.

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 blood-feud 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.

150. Question by party to his own witness. 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.

151. Impeaching credit of witness. The credit of a witness may be 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.

Illustrations

(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 indicated 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.

152. Questions tending to corroborate evidence of relevant fact admissible. 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 testifies.

Illustration

A, an accomplice, gives an account of 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.

153. Former statements of witness may be proved to corroborate later testimony as to same fact. 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 legally competent to investigate the fact, may be proved.

154. What matters may be proved in connection with proved statement relevant under Article 46 or 47. Whenever any statement, relevant under Article 46 or 47, is proved, all matters may be proved either in order to contradict or 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.

155. Refreshing memory. (1) A witness may, while under examination of afresh his 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.

(2) 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.

(3) Whenever a witness may refresh memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:---

Provided that Court be satisfied that there is sufficient reason for the non-production of the original.

(4) An expert may refresh his memory by reference to professional treatise.

156. Testimony to facts stated in document mentioned in Article 155. A witness may also testify to fact mentioned in any such document as is mentioned in Article 155, 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.

157. Right of adverse party as to writing used to refresh memory. --- Any writing referred to under the provisions of the two last preceding Articles must be produced and shown to the adverse party if he requires it such party may, if he pleases, cross-examine the witness thereupon.

158. Production of document. --- (1) 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 objection shall be decided on by the Court.

(2) 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.

(3) 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 translator disobeys such direction, he shall be held to have committed an offence under Section 166 of the Pakistan Penal Code (Act XLV of 1860).

159. Giving, as evidence, of document called for and produced on notice. --- 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 partly calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

160. Using, as evidence, of document production of which was refused on notice.  ---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 a 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.

161. Judge’s power to put question or order production. --- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he places, 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 things 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 Order to be relevant, and duly proved:---

Provided also that this Article shall not authorize 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 Articles 4 to 14, both inclusive, if the question was asked or the document was 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 Article 143 or 144; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.

CHAPTER XI
OF IMPROPER ADMISSION AND REJECTION OF
EVIDENCE

162. No new trial for improper admission or rejection of evidence. --- 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, independent 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.

CHAPTER XII
DECISION OF CASE ON THE BASIS OF OATH

163. Acceptance or denial of claim on oath. --- (1) When the plaintiff takes oath in support of his claim, the court shall, on the application of the plaintiff, call upon the defendant to deny the claim on oath.

(2) The Court may pass such orders as to costs and other matters as it may deem fit.

(3) Nothing in this Article applies to laws relating to the enforcement of Hudood or other criminal cases.

COMMENTARY

Special oath by one of the plaintiffs. Effect. During proceedings of second appeal, one of plaintiff/appellant filed application wherein he stated that if the specified defendant, swore on Holy Quran and stated that consideration for the sale had been paid to the appellant, he would not object to the decree passed in favour of defendants being maintained. Defendants accepted the challenge and took the special oath, whereupon High Court dismissed the second appeal. Petitioner’s plea in petition for leave to appeal, was that the plaintiff making the offer of special oath had been authorized to make it only on behalf of favour of sisters and himself, but he had no authority to make any statement in Court or compromise the suit, appeal, etc. On behalf of remaining three brothers viz. Petitioners herein, and hence special oath taken by the defendant did not bind them. Supreme Court, however, found that the Advocate in second appeal was jointly engaged by all the plaintiffs including the present petitioners and that such Advocate was present in Court throughout the proceedings; special oath was taken before him and order of court was also passed in his presence. No plea was raised before High Court to the effect that the appeal of present petitioners could not be dismissed in pursuance of the statement on oath by the defendant, in pursuance of the offer of their brother as the latter did not represent them. Supreme Court declined to exercise its discretionary jurisdiction to grant leave to appeal petitioners on the basis of plea raised by them, before the Supreme Court.8

Provisions as to oath apply to civil cases. They do not apply to criminal or hudood cases. Working of Trial Court applying Art. 163 to criminal cases cannot be approved.9

Provisions of special oath under Art. 163 do not apply to criminal proceedings.10

Denial of claim by defendant on Oath. Effect. Parties to suit taking Oath, one affirming the claim and the other denying the same. Trial Court dismissed suit, also the Appellate Court, High Court in revision, remanding case to Trial Court for decision on basis of evidence which stood already recorded. Validity. Provision of Art. 163, Qanun-e-Shahadat, 1984 does not lay down what would be the consequences if defendant does or does not deny plaintiff’s claim on Oath. Order of remand passed by High Court, thus, seemed to be proper, warranting no interference. Leave to appeal was refused in circumstances.11

Applicability of Art. 163, Qanun-e-Shahadat, 1984 to criminal cases. Procedure of swearing on the Holy Qur’an (oath proceedings) is not applicable in criminal cases.7

CHAPTER XIII
MISCELLANEOUS

164. Production of evidence that has become available because of modern devices, etc. --- In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.

165. Order to override other laws. --- The provisions of this Order shall have effect notwithstanding anything contained in any other law for the time being in force.

166. Repeal. --- [The Evidence Act, 1872 (I of 1872) is hereby repealed.]

Evidence Act, 1872 (Repealed)

Go to Index | LL. B. – I | LL. B. – II | LL. B. – III | LL. B. Directory | Home