Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:12:05 PM
1. The Qanun-e-Shahadat Order, 1984 (X of 1984) (Evidence Law) as amended upto date.
1. The Qanun-e-Shahadat by Professor Dr. Chaudhary Muhammad Hanif.
2. The Qanun-e-Shahadat by Muhammad Iqbal.
3. Qanun-e-Shahadat Order by Muhammad Shahid Mughal and Intisar Ali Chauhan.
Law of Evidence in
There are two types of laws, i.e., substantive and procedural. Substantive law is related with the person and property while procedural law deals with the procedure as to how substantive law is proceeded in a court of law.
If a person does not fulfill legal obligation, how he can get remedy? How his rights are enforced? For example, a contract is formed between two persons, and one of them commits breach of contract. It is fact and alleged in court that it was not performed. He pleads a fact, which is breach. What is the procedure by which breach is proved? How he establishes that fact stands exist? It is only evidence, which proves the existence of fact.
Court itself takes notice of question of law. Parties are not required to resolve the question of law but only question of fact. Parties have to just prove the existence of fact.
Before the present Qanun-e-Shahadat Order there was the Law of Evidence, 1872. It was rearranged during the Islamization process in the Zia regime. It is more or less same as earlier. Differences are as follows:
Under old law provisions of the law were called sections while in new one they are called Article.
Provisions of law have been reshuffled.
Title of the law has been changed from the Law of Evidence, 1879 to Qanun-e-Shahadat Order, 1984.
Few Islamic provisions have been introduced, e.g., number of witnesses have been increased to four for Hudood crimes.
Financial provisions have been brought Islamic.
Qualification of witnesses and law of accomplice has been changed.
If the new provisions do not fulfill the requirement of the case then old provisions remain applicable. Finally it is more or less the same law, same ruling, same judgement, same decisions, and same cases.
What is function of evidence law? To whom, as witness is to be produced in court to testify truth? Witnesses are produced from both sides to prove or disprove the facts in issues. Whether the produced witness is competent to give evidence in court of law and what are the qualifications of competent witness are also questions of law of evidence. Witnesses also have some rights and duties as well. Generally all are the competent witnesses provided they are not debarred to give evidence except in certain cases. They have certain privileges and no question can be asked from them against which they are protected under law. If any question is asked which falls within their privilege they may refuse to answer the question. Rights are called technically privileges. Generally witnesses are free to answer or refuse. During the cross-examination they bear legal duty to answer question asked.
Whether evidence once given on one court can be adduced (cite, offer, present) in all courts? No, it is accepted only where court or person administers it under oath. Arbitrator does not take evidence under oath so evidence taken by him is not admissible in courts.
A, advances to B Rs. 5,000/- repayable within one month. B commits default in repayment. A files a suit in court against B for the recovery of amount of Rs. 5,000/-. B either may admit the receipt of amount and not repaid or may allege repaid within due time. A alleges advance of Rs. 5,000/- and B alleges its repayment. Two facts in issue arise. Advancement of Rs. 5,000/- becomes issue in fact on the part of A while repayment of Rs. 5,000/- within due time becomes fact in issue on the part of B. Both have to prove their claims by producing evidence.
If B claims receipt of advance amounting to Rs. 5,000/- which is still repayable then no fact in issue will arise and case with be adjudged in favour of A. fact in issue arises when one party denies the fact in issue which plaintiff puts. Both plaintiff and defendant put their facts in their pleadings but court frames the facts in issue. Whenever defendant denies the fact which plaintiff alleges, then fact in issue arises.
There may be more facts in issue than one. Relevant evidence is given to prove or disprove the facts in issue. Denial of B can be proved through the Cheque issued to him while the receipt of Money Order can prove repayment.
Kinds of evidences: There are certain kinds of evidence, e.g., oral and documentary, primary and secondary etc. Primary evidence contains original documents or postmortem reports. Secondary evidence contains copy or attested copy of the original document. Secondary evidence is allowed where primary evidence is not available. Documentary evidence excludes oral evidence being authentic and preferred. Following are kinds of evidences:
1. Oral: Statements made by witnesses in Court.
2. Documentary: It includes public and private documents, and statements of relevant facts made by persons in writing.
3. Conclusive: Evidence of a fact which the Court must take as full proof of it, and which excludes all evidence to disprove it.
4. Direct: It is evidence of fact actually in issue; evidence of a fact actually perceived by a witness with his own senses.
5. Circumstantial: It is evidence of a fact not actually in issue, but legally relevant to a fact in issue.
6. Real: It is a kind of evidence supplied by material objects produced for the inspection of the Court.
7. Extrinsic: It is oral evidence given in connection with written documents.
8. Hearsay: What someone else has been heard to say, “What the solider said”, as contrasted with the direct evidence of a witness himself, oral or written statements made by persons not called as witnesses? Hearsay evidence is, in general, excluded, but the repetition or another person’s statement is sometimes permissible, and there are express exceptions of the rule against hearsay.
In criminal proceedings that common law rules as to hearsay still obtain. In civil proceedings the common law rules are abrogated.
9. Indirect: It is circumstantial or hearsay evidence.
10. Original: It is evidence, which has an independent probative force of its own.
11. Derivative: It is evidence, which derives its force from some other source.
12. Parole: It is oral, extrinsic (unrelated) evidence.
13. Prima facie: It is evidence of fact, which the Court must take as proof of such fact, unless disproved, by further evidence.
14. Primary: Primary evidence of a document is the document itself, or duplicate original.
15. Secondary: It is the evidence other than the best evidence, and which is rejected if primary evidence is available, e.g., oral evidence of the contents of a lost document such as a Will.
Theft: Where property is removed from the custody of its owner with unlawful intention, it is called theft. It has four ingredients such as:
1. Dishonest intention: Where property is removed without unlawful intention and later on dishonest intention is formed, it not called theft but misappropriation. Dishonest intention must be there at the time of removal of property.
2. Moveable or tangible property: Only moveable property is subject of theft. Where immovable property is removed such as fan which is removed from wall or ceiling or tree is removed from earth, it becomes moveable property thus its removal with dishonest intention becomes subject of theft.
3. Removal of property: Mere dishonest intention is insufficient to constitute the offence of theft. Its removal must be there. Where dishonest intention exists but property is not removed, theft does not take place.
4. From the possession of other: Moveable property, which is removed with dishonest intention, must have its owner. Where any person has abandoned his possession of any property, its removal shall not form the offence of theft. Where owner of bull abandons the ownership of bull, its slaughter shall not form the offence of theft. Ownership or physical possession of property is one of element of theft.
Misappropriation of property: Misappropriation of property is a result of state of mind, which is changed subsequently. All the elements of theft are found in misappropriation of property except the dishonest intention at the time of removal of property. To constitute misappropriation of property, its dishonest intention after the removal of property must be proved. It is breach of trust. Breach of trust does mean a person is entrusted but later on he changes his mind and keeps the property dishonestly for personal use is termed misappropriation.
Where a manager gives some amount to his clerk for disbursement to employees relying upon him creates a trust to his subordinate. When clerk changes his mind after taking possession of money for the keeping amount for his personal use without having any lawful authority, is breach of trust for which he was entrusted.
Where a worker takes bicycle relating to another worker mistakenly but subsequently he keeps such bicycle at home for his child and also takes his bicycle for his own use is also misappropriation of property.
Law of theft is not applicable on misappropriation of property on the fact that dishonest intention was not there when moveable property was removed from the possession relating to other.
Under the offence of theft owner of the property does not know whether property relating to him is removed while he gives possession of his property himself to other person where misappropriation of property may take place. Result of breach of trust form misappropriation of property.
Mere removal of moveable of property from the possession relating to other is insufficient to constitute either the offence of theft or misappropriation of property.
Judicial notice: Where something is not produced then court itself takes its notice. This notice is called “Judicial Notice”. This notice is taken where there is no need to prove something, e.g., Map of Pakistan, question of law, administration, division of cities or districts or provinces etc.
Where a person is refrained to deny the truth already admitted is called estoppel. Where a principal has not appointed agent but he ostensibly acts as agent before principal then principal cannot deny the truth of his agency.
A is shopkeeper and B is his friend and joins him in his shop. C comes to shop and A introduces B as owner of the shop. C deal with B. A dispute arises between shopkeeper and C. A cannot deny the truth being B as owner of the shop. Burden or onus of proof (PÌJQ iBI) lies on the shoulders who alleges (claims, ascertains). Burden or onus of proof shifts to him who fails to prove the facts in issue.
In criminal cases prosecution has to prove the fact in issue because she takes in court case and alleges the guilt of accused. In civil cases person who alleges has to prove it. Prosecution has to prove the claim by evidence, which is beyond the reasonable doubt. In civil matters suit is adjudged with principle of preponderance (majority, supremacy, dominance).
Witness who testifies the facts in issue is examined and his evidence does not rest accepted without preponderance. Court does not rely on evidence without cross-examination. Leading questions (pursuance during the proceeding) are not permissible. Court also examines the credibility of witness. Arguments and cross-examinations are the tools to crystallize its truth. Sometimes witness is called again to testify the truth if the document misplaces.
Application of this law: This Act is applicable to whole of
1. Courts: Courts are subjects of the application of this law.
2. Persons empowered: Person who is empowered by law for the judicial proceedings is subject of this law.
3. Tribunals: Tribunals for the judicial proceedings record their evidences under this law.
4. Quasi-judicial proceedings: It is also applicable in all quasi-judicial proceedings.
5. Magistrates: They are also subject of this law and record evidence under this law.
6. Martial Law Courts: They are also bound to record evidence under this law.
Non-application of this rule: This law does not apply on certain proceedings such as:
1. Jury system: Where jury system of justice exists there is no application of this law of evidence.
2. Arbitration: It is also not applicable in arbitration cases.
3. Inquiries: If the inquiry is not judicial then it is not applicable.
Court: As far as evidence law is concerned court means any person, tribunal, or authority, which exercises powers, invested to her as per law of land.
Document: U/s 29 of Pakistan Penal Code, document is a material written or described on any substance and carries some meaning and can be produced as evidence in court. All written materials regardless written on cloth, paper, stone, leather, tree, bones etc. is document if it carries some meaning within the meaning of this section. It may be ABC or 123 or ?-@$/=, but it should must carry meaning. Bloodstains on cloth are also a document. Black board, affidavit, engraved name on tree, glass, plastic, iron, brick is document. Engraved engine number on motor cycle or pistol is document. Wound mark on body is also a document, but an expert should medically examine it and his report will termed as document.
Need of evidence: Court has to arrive on truth. Court does not know the actual and factual position of the facts in issue. How a court may arrive to truth? It is only evidence, which brings court to truth. Only evidence concludes such statement, which is given orally and admissible.
Role of police in judicial proceedings: Statement given before Police Officer, does not amount evidence admissible in court. It is just investigation and proceedings which court conduct is called enquiry. Police just collects evidences but does not record evidence.
Confession: Confession made before Police Officer is not admissible actually and particularly when names of other persons are mentioned. Police may investigate against them but this confession cannot be used against them as evidence. Confession is used only against him who makes it but not against others.
The test of the judicial authority is that officer empowered takes evidence on oath. Executive officer may also use quasi-judicial powers. Statement is not termed as evidence as it is not taken under the Qanun-e-Shahdat Order. Both Code of Civil Procedure and Code of Criminal Procedure are different but the evidence has same relevance.
There may be certain facts of issues in pleadings. Some of them may be admitted and rest may be denied. Need of evidence becomes necessary where facts are denied. Plaintiff has to provide evidence to establish his claim in pleading. Stay does not need evidence but arguments.
Where wrong or crime is committed, e.g., dacoity, murder, theft, or alcohol consumption etc. there is need of evidence to prove or disprove the fact in issue. Some offences or wrongs are petty in nature thus liable of bail. Bail is granted at once. Where there is non bail-able offence and court thinks that accused shall run away, then court shall not grant bail.
Need of evidence: Evidence in both Code of Civil Procedure and Code of Criminal Procedure is required at the time of trial. It is not allowed at appellate level. For example, a case of murder is tried in Session Court and court gives death penalty to offender. Appellate court does not require evidence. Evidence provided at trial level rests sufficient. Accused goes in appeal in High Court and his lawyer establishes that a new piece of evidence has been discovered which if applied in trial court, accused must be acquitted. If there is probability of reversal or acquittal lies in evidence then Appellate Court decides the return back the case to trial court for retrial.
Fact: We know that all evidences are adduced before court of law either relating to fact in issue or relevant to fact. A person may be habitual of sleepwalking. He may inflict slap to other during sleepwalking. Trespassing is also an offence in the eyes of law. Trespasser may think that he is entering in his home but actually it is not his home. This is state of mind. Offender makes his mind to commit crime. Negligent person may also commit offence. Anything existence or non-existence of which can be perceived is fact. State of mind is also fact, which can be perceived and proved. Probable consequence of stoning is grievous hurt or injury however its knowledge constitutes fact.
In another example, A, kills to B. Prosecution has to prove murder of B. It requires evidence thus it is fact. Fact may either require its proof and disproof. When the evidence is adduced in court and court considers it is proved that is fact.
Presumption of fact: Some time court presumes whether certain thing or fact exists or not. It must be kept in mind that presumptions are always rebut-able. If party proves that fact does not exist, court shall conclude that fact does not exist.
Competency of witness: There are certain qualifications for the competency of the witness. Law imposes the following restriction on competent witness:
1. Age limit: Law does not provide any age limit for the competency of witness but he should know and retain in his memory the facts.
2. Understanding capability: Competent witness must understand what court of law wants to enquire. He must have capability to answer the questions of court.
3. To whom court thinks competent: Satisfaction of the court is another essential element for the competency of witness. If court does not consider witness as competent he cannot appear as competent witness even witness is person of sound mind or generally considered competent.
4. True Muslim: In certain cases only true Muslim is competent witness particularly in Hudood crimes. He must be person of those qualifications which Quran and Sunnah prescribe for a witness.
5. Islamic rules: s
6. All persons: s
7. Tazkia: s
8. Eyesight: s
9. Hearing: s
10. Perception: s
11. Smelling: s
12. Communication skill: s
13. Honesty: s
14. Male (only in hudood cases: s
Incompetent witness: Law has debarred some persons to appear as competent witness. Detail of those is as follows:
1. Incapacity of rational response: Person who is incapable to understand the question put to him or who cannot give rational answers of court is not competent witness.
2. Young age factor: Although no age limit is prescribed for the competency of witness but it does not mean that person of every age can appear as competent witness. Person who due to young age factor cannot understand the requirement of evidence is not considered competent witness.
3. Old age factor: Old age does not matter but it matters a lot. Person who due to old age factor could not understand the rationality of the questions and answers put to him in court is not competent witness.
4. Bodily infirmity: Person who is bodily infirm is not competent witness.
5. Mental infirmity: Person of unsound mind is debarred to appear as competent witness, i.e., who was person of unsound mind at the time of occurrence of incident.
6. Conviction in false evidence: Person is not competent who has been convicted in false evidence except where he has been repented and mended his ways.
7. Unable to understand: s
8. Lunacy: s
9. Slander: s
10. Where is interest: s
11. Habitual liar: s
12. Female in hudood: s
Determination of competency of witness: Where there is any doubt of competency of witness, only court shall determine his competency by putting questions to him. His response shall explore his competency.
Exceptions: Law has prescribed certain exceptions for the competency of the witness such as:
1. Ordinary witness: Where person of the qualifications prescribed in Quran and Sunnah is not available, the court may take the evidence of the person who is available to testify the fact in issues.
2. Repented person: Person who had been debarred to appear as witness due to his disqualification by way of false evidence or any other major sins, can be considered as competent witness if court thinks that he has mended his ways and repented.
3. Lunacy while testifying: A person who was person of sound mind at the time of occurrence of the incident is not incompetent witness if he loses his memory or becomes person of unsound mind while he testify the truth before court. Court shall give him reasonable time for recovery so that he may testify truth before court. Time relaxation is provided to reach at truth and conclusion.
4. Child witness: Child is competent witness provided court thinks him competent by testifying as to his ability to give evidence. Set question cannot be asked to determine his ability to give evidence.
Judges and Magistrates: Judges and Magistrates are not bound by law to give answers of the questions such as:
1. Conduct of the Judges or Magistrates in court.
2. Any matters which come to their knowledge during proceedings.
Exception: Law provides an exception to this rule as to their privilege, that superior court may order Judge or Magistrate to answer the question relevant to the case which was under his trial. Upon the order of superior court, Judges or Magistrates must have to depose (giving statement) such improper evidence, which they had admitted. Their evidence is upto the extent of the case they tried. Their evidence is confined and not opened to other matters, which are irrelevant. This exception is allowed only in the case where court could not adjudge due to complex situation.
Immunity or privilege: It is granted to certain persons so that requirement of justice can be fulfilled. It helps in arrival to truth. Where person is reluctant to provide evidence due to reason that he shall be convicted or truth shall be brought, immunity is granted to him. Person who has immunity cannot be convicted upon truth he provides in evidence.
Immunity also prevents the possibility of the false evidence because person, having privilege always produces truth because he cannot be trapped on the truth he produces. S. 182 of Pakistan Penal Code provides it punishable.
Immunity of married persons: Under this law a married person shall not be:
1. Compelled to disclose any communication made to him during marriage by any person to whom he is married.
2. Permitted to disclose any such communication, except:
(1) When the person who made it or his representative-in-interest consents, or
(2) In suits between married person, or
(3) In proceedings in which one married person is prosecuted for any crime committed against the other one.
It is notable thing that privilege remains exist even after divorce takes place. Person making evidence may waive off privilege at any time after divorce. Privileges are provided either on the ground of natural love and affection or to evade from false evidence thus no prosecution or litigation may take place on the ground of facts revealed from the evidence, which is privileged. Information disclosed before marriage does not provide privilege on subsequent marriage. The only test is the information is disclosed during the subsistence of marriage. Once a privilege is always a privilege. It can be waived off but it cannot be ceased to exist (abandoned or discarded or discontinued or ceased). It is not available for the matters before the marriage but it remains available after the divorce has taken place. During the marriage if spouse appears as witness for the offence committed against third person, cannot produce evidence until second spouse consents. But if both spouses are parties against each other, then consent for evidence goes immaterial.
Immunity on state matters: Matters of state may or may not be disclosed. Matters which are declared confidential or against public policy are not disclosed if come into knowledge. If they are required to be disclosed, then permission of the departmental head is required to do so, which may or may not be granted. Nuclear programme is such example. Person who knows the unpublished matters may refuse to disclose in evidence on the grounds of either against public policy or sensitive matter. Head of the department may grant permission for evidence if there is no apprehension of violation of public policy.
Information as to commission of offences: Law enforcing agencies have certain informers who help in elimination of crimes. They inform police whenever offence is committed. Police or Magistrate has immunity to disclose as to whence (from where) they got information. They may waive off their immunity provided public interest does not suffer. But waiver off immunity may cause problem to informer. Informer would not inform police about the crimes committed.
As police gets information from informer, collects independent evidences as to prove crime committed. Evidences acquired are used against accused. Question cannot be asked to police as to how and from where information was received. Police has interest in the information of the commission of crime. Mere information is not sufficient for the conviction of accused. Information is mere opening of the trial. Conviction or punishment depends upon evidences which prosecutor collects during enquiry and presents them in court. Normally informers are not disclosed as sources of information but they can be called as witnesses where immunity is waived off. Waiver of immunity does not need the consents of the informer. This is privilege of police and not of informer. Discovery of offence weapon or stolen property, postmortem report, signs of foots, evidences, and identification parades are sufficient grounds to convict the offender. Mere information is nothing.
A Magistrate or Police Officer cannot be compelled to disclose the source of information received by him as to the commission of an offence. It is of importance to the public for the detection of crimes that those persons who are the channel by means of which the detection is made should not be unnecessarily disclosed.
Professional communication: Professionals are not allowed to disclose any material received during the course of their business from their clients. Advocates proceed the cases based on information received from their respective clients. They cannot disclose such information unless they get express consents of their clients (ÆÝ·Ì×¿). While deciding whether it should be disclosed or not, relationship between them remains determinant factor. If communication is made before going into contract or after gone into contract, immunity will not be available. Immunity rests only for the period of relationship. Furtherance of commission of crimes cannot enjoy immunity even made while relationship with lawyer.
If offender says his lawyer that I have committed an offence and you have to defend me does not constitute offence and immunity shall remain available.
Where client says to his advocate that he has to get property by means of forged documents and you have to protect me is not covered or protected from disclosure.
Production of title deed of witness, not a party: A person who is not party in a case and has a title deed, cannot be compelled to produce such title deed as evidence unless owner of the property consents.
Person who may criminate by producing evidence shall not be tried on the statement he gives as witness. He may be compelled to give evidence but his evidence, whatsoever is, cannot be used against him as confession. This protection does not amount privilege, but it is mere protection. Under privilege person cannot be compelled to produce evidence but under protection he may be compelled to produce evidence but his evidence shall remain evidence and not confession.
Person who has not privilege, if is compelled to give evidence and he refuses to give evidence is supposed of guilty of false evidence and if he gives true statement then he may be charged. By this way truth remains concealed. In order to find out the truth to reach on conclusion, law gives protection to witness to ensure the justice.
Production of documents relating to other: Where a person holds documents relating to other cannot be compelled to produce such documents as evidence unless its actual master consents.
Accomplice: He is a person who helps in an offence. He may not commit an offence physically but by the reason of common intention either express or implied, he is held guilty of an offence and he is liable to the same punishment for what principal offender is. He may assist the principal offender before or after the commission of an offence.
Question arises that whether an accomplice is competent witness. As far as English law is concerned, he is not only competent witness but conviction can be awarded on his evidence. He alone is sufficient for conviction. Approver (an accomplice who turns King’s evidence) is also accused thus competent witness.
Exception to this rule: Pakistani law provides an exception to this rule for the offences, which come under Hudood crimes (ÁÖAjU eËfY). Hudood crimes are those, which are, declared crimes in Quran expressly and their punishment has been fixed under Quran. They are not compound-able. They are seven in number including theft, alcohol consumption, adultery, dacoity, sedition, slander of woman (defamation), and apostasy. Accomplice is not competent witness in Huddon crimes. Only Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirement of tazkiyah al-shuhood (eÌÈr»A ÒÎ·lM), that they are truthful persons and abstain from major sins (Kabir – ÊjÎJ·), give evidence of the accused having committed the offence liable to Hadd.
Evidentiary value: Piece of evidence determines the liability and punishment of an offender. Witness is also taken into consideration. His education and character are also factors, which evaluate weight and value of evidence. Approver betrays his companions in the dock and who has no scruples either in exaggerating (overstate, larger than normal) their part in the crime or in substituting in a well thought out narrative a completely innocent man for friend whom he is still anxious to save. In evidence his self interest may involve. In order to save skin he may state which is not committed. Corroboration (acknowledgement or affirmation) of his evidence from an independent source may testify truth. But punishment mere on his evidence may lead to injustice. Although Pakistani courts are not bound by law to corroborate his evidence but under law corroboration is desirable. Accomplice is presumed unworthy unless rebutted. Article 129 of Qanun-e-Shahadat Order, 1984, provides that court may presume the unworthiness of the accomplice.
Number of witnesses: As a general rule, only one witness either male or female is sufficient for conviction. But as far as Hudood crimes are concerned Quran and Sunnah determine the number of witnesses.
In all other matters than of Hudood crimes, mere one witness is sufficient for conviction.
Financial and future obligations need two males or one male and two females witnesses for conviction.
Relevancy of facts: There are two kinds of facts for which evidence is adduced in court, i.e., facts in issue and relevant facts. Facts in issue are those which are alleged by one party and denied by the other on the pleadings, in a civil suit; or alleged in the charge and denied by the plea of “not guilty” in a criminal case, so far as they are in either case material. On the other hand, the relevant facts are all those facts which are in the eyes of law so connected with or related to the fact in issue that they render the latter probable or improbable or roughly throw light upon them.
A files suit against B for the recovery of Rs. 5,000/-. If B admits the borrowing of Rs. 5,000/- then no fact in issue shall be framed thus no evidence shall have be adduced to prove the fact. But if B refuses the fact of borrowing of Rs. 5,000/- then A shall be required to adduce evidence to prove the lending of Rs. 5,000/-. Fact in issue is the matter undecided. Only evidence may prove the truth of the facts. Any fact against which court needs evidence to prove it is called fact in issue.
If B admits the borrowing of Rs. 5,000/- but alleges its repayment to A is again fact in issue thus requires evidence to prove the fact of repayment, which A denies.
Some time relevant facts prove the truth of facts in issue. For instance, denial of B can be proved through the Cheque issued to him while the receipt of Money Order can prove repayment. In this way Qanun-e-Shahadat is applicable both on facts in issue and relevant fact to testify truth.
How the relevancy is proved? Law provides list of relevant facts, which more or less covers all the matters, which may occur.
Relevancy of facts forming part of same transaction: All the facts, which are so, connected with the same transaction immediate or later, proximity or remote, or direct or indirect are relevant facts thus they form single fact. For example, delivery of goods involves several intermediaries who successfully deliver the goods. Each delivery constitutes relevant fact.
A good example of what different acts constitute one and the same transaction, is afforded by a case where the prisoner in order to remove a cart of which he committed theft, broke into the cattle-shed of a neighbour of the cart owner, took out the bulls and drove off the cart to a distant place. It was held that the house breaking into the neighbor’s shed was essential to the theft of the cart and bulls of the owner, so that one could not be done without the other. And therefore, the two acts, i.e., house breaking and removal of the cart and the bulls formed parts of the same transactions.
In a house breaking, the person who cuts the glass of the door or window either on spot or before or later, is relevant fact in the case of house breaking.
What is transaction: The term “transaction” has been defined as a group of facts so connected together as to be referred to by a single legal name, as a crime, a contract, wrong, or any other subject matter of inquiry which may be in issue.
Extra-judicial confession Article 37: The word “confession” has not been defined in anywhere in law. A “confession” is an admission made at any time by a person charged with a crime, stating, or suggesting the inference that he committed that crime. The value of extra-judicial confession is not very high.
A confession must either admit in terms the offence or at any rate substantially all the facts, which constitute the offence.
Extra-judicial confession is made before the private person, i.e., other than Magistrate or Police Officer. Judicial confession is made before Magistrate having jurisdiction in the case.
Confession in jail before fellow prisoner is extra-judicial confession because it is not made before Magistrate. Confession using threat, inducement, or promise is not reliable. Authority before whom confession is made must be high such as landlord and tenant, officer and subordinate, headman and cultivator etc. This is made to avoid any blackmailing or any other evil cause. This confession is not only extra-judicial but also irrelevant and not liable to use against accused.
Some time a person makes confession for temporal (secular, non-spiritual) purposes before private person. It is not acceptable at all in law. There may be threat to his family, parents, and children etc. It becomes relevant if it is made voluntarily.
Confession to police not to be proved Article 38: Police Officer is not authorized to take the statement of confession. If any accused confesses before police officer, his confession shall not be used against accused. It is not material whether accused was aware the person before he has made confession is police officer. This confession cannot be used against accused.
Also under Article 39, confession made by accused before Police Officer while custody cannot be proved against him unless it is made in the immediate presence of Magistrate. The presence of Magistrate secures the free and voluntary of the confession and the confessing person has an opportunity of making a statement uncontrolled by any fear of the police.
An English woman under arrest on
a charge of murder was taken in a
Confession in consequences of discovery Article 40: If the confession of the accused is supported by the discovery of a fact it may be presumed to be true and not to have been extracted. It comes into operation only:
1. There must be a fact discovered.
2. The fact must have been discovered in consequence of some information received from the accused.
3. The fact discovered must be relevant.
4. The person from whom information is received must not only be an accused but must also be in the custody of the police.
5. The information sought to be used in evidence must distinctly relate to the fact discovered.
If upon the information of the accused, crime weapon is discovered while he is in police custody, his confession is supposed to be true.
Where police already knows the happening of the crime, then the information provided by the accused are not called confession.
S. 164 of Code of Criminal Procedure applies on this type of confession. It must be recorded before Magistrate. Magistrate shall explain to person that he is not bound to confess and his confession may go against him. His confession must be voluntary. Magistrate certifies the confession as provided in this section and puts his signature.
Confession before Imam is admissible because he is public person and not a policeman thus relevant to prove the guilt of accused. Confession before a policeman who acts as Imam is not confession at all because law categorically prohibits it.
Philosophy of punishment: Punishment is not taken as revenge. It has philosophy behind it. There are four major points, which supports it. They are as follows:
1. Crime must be punished, as it is evil as against public, which should not be left without tracing.
2. It is deterrence (restriction, hindrance, control, limitation) to public as public remains away in doing such things result of which is not desirable.
3. It is deterrence to offender himself, as he should not commit such offence again to prevent himself from punishment.
4. Offender is put to jail as jail prevents offender himself and others to suffer from offences.
Confession after removal of danger Article 41: Where accused makes confession voluntarily after the removal of impression caused by inducement, threat, or promise are relevant and used in proceedings. Where confession is made in Panchayat (OÖB‡Ä‚), it is held inadmissible.
Relevant confession under certain circumstances Article 42: Where accused is not bound to confess and confesses voluntarily is relevant. A relevant confession does not become irrelevant because it was made:
1. Under a promise of secrecy.
2. In consequence of a deception practiced on the accused.
3. When the accused was drunk.
4. In answer to questions which the accused need not have answered.
5. In consequence of the accused not receiving a warning that he was not bound to make it and that it might be used against him.
6. After removal of inducement.
7. After removal of threat.
8. Before lower rank.
9. Before private person.
10. Before Police Officer where is recovery.
11. After withdrawal of promise.
Statements made by a person in sleep are not receivable in evidence. But a statement made by an accused when he is drunk is receivable in evidence. If a Police Officer gives an accused liqueur in the hope of his saying something and he makes any statement, that statement is not rendered inadmissible in evidence. In consequences of question and answering, statement of accused is considered true. Where accused is not bound to confess, his confession renders him liable against his guilt. It is notable that above provisions are not applicable in the cases of Hudood.
Consequences of confession are only for confessor Article 43: Where more than one persons commit a crime and one of them makes confession in a trial, it shall be considered only against the person who makes confession.
Joinders of the same crime are not subject of the confession, which is made from one of them. However such confession is used as circumstantial evidence against the rest of offenders.
Illustrations: A and B are jointly tried for the murder of C. It is proved that A said: “B and I murdered C”. The court may consider the effect of this confession as against B.
A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said: “A and I murdered C”.
This statement may not be taken into consideration by the court against A, as B is not being jointly tried.
In these circumstances, confession of one accused and circumstantial evidence must be corroborated against the joinder of the crime.
Applicability: Before a statement by one of the accused persons can be taken into consideration against the other accused, following conditions must be satisfied:
1. The statement that is sought to be used, against the co-accused must be a statement that amounts to a confession.
2. The confessing accused must be tried jointly with the accused against whom the confession is sought to be used.
3. The confessing accused and the accused against whom the confession is sought to be used must be tried for the same offence, or for attempt, or abetment thereof.
4. The confession must implicate the maker substantially to the same extent as it implicates the accused against whom it is to be used.
5. The confession must be duly proved.
Liability of cross-examination Article 44: All accuseds are liable to cross-examination. According to the Constitution of the Islamic Republic of Pakistan “no person when accused of an offence, shall be compelled to be a witness against himself.”
Admission is not proof Article 45: Unless admission constitutes an estoppel, it is not conclusive and it is always open to its maker to show that the statements were mistaken or untrue.
Oral evidence Article 70: Facts can be proved by oral evidence where contents of documents are not available. But it should be direct oral evidence. It means that person who is eyewitness must appear in court to testify the truth of the facts. Since he has seen the facts on spot in his presence therefore his presence in court strengthens the weight of evidence. Hearsay evidence is not direct evidence. Law demands that there must be best direct evidence. Document is preferred on oral evidence. Where written matter is in question, document is the only thing, which can prove the truth of the dispute. Primary evidence is preferred on secondary evidence.
Secondary evidence is certified copy of public record. It is a document, which rests in the custody of government officer. He certifies its copy as correct as original. It bears signature, name, designation, and seal of the attesting officer. Photocopy from the original document is admissible. Copy from copy is not acceptable. Counterpart of original document is desirable as secondary evidence. Counterpart is the similar document prepared and signed by each party separately. Each document contains only one signature.
Secondary evidence is given where court permits it. Party itself cannot decide whether primary or secondary evidence is to be produced. It is only court, which decides the matter on merit. It is allowed in the cases where circumstances allow. Destruction of documents by way of theft, flood, earthquake, fire etc. may advance the need of secondary evidence. Where court satisfies, secondary evidence is permitted. It should be taken into consideration that intentional or fabricated or artificial destruction of document is not acceptable as good ground to advance oral evidence.
Direct oral evidence Article 71: Oral evidence must be direct as seen, heard, perceived, or held that opinion on such grounds.
Secondary evidence is permitted where documentary evidence is lost or not available due to reasons uncertain. Permission of oral evidence requires sufficient proof of having no documentary proof. Only court permits oral evidence. Where once permission for oral evidence is granted, it excludes the chances to produce documentary evidence later on in any circumstances. Documentary evidence shall be kept in pocket. Court may say that you were given the opportunity to testify the truth by documentary evidence, but you failed to do so, therefore, now your right to produce document shall be subject of the permission of court or the adverse party. It is, in general, not granted. Where documentary evidence is available, it excludes oral evidence.
Law says categorically that oral evidence must be direct, that is, if it refers to:
1. Seen fact: A fact, which could be seen, the evidence must be of a witness who says he saw it. His evidence on the seen facts has more weight-age than of who has not seen the fact himself. He also knows well about the circumstances in which incident takes place. He is the direct source of evidence. Keeping in view of his importance, court considers his evidence first before going into other sources.
2. Heard fact: A fact which could be heard, the evidence must be of a witness who says he has heard it. Where in a case of bribe, during the handing over amount, the actual talk between the person giving and taking bribe is the determinant factor. Mere observation of bribe is insufficient to constitute the offence.
3. Perceived fact: A fact, which could be perceived, by any sense or manner, the evidence must be of a witness who says that he has perceived it by that sense or that manner. Where death is caused by gas, evidence of the person who actually smells the gas is relevant.
4. Factual opinion: An opinion, or the grounds on which that opinion is formed, the evidence must be of a person who holds that opinion on those grounds. In the case of forgery, the opinion of expert who can distinguish or compare handwriting or fingerprints is relevant. Since he is expert therefore his report is best evidence.
Exception: Although in case of oral evidence it must be direct but there are some exceptions to this rule which are as follows:
Shahadah-ala-Shahadah (ÑeBér»A Ó¼§ ÑeBéq): Where person has been died or left the country or wants to conceal himself due to security reasons and possibility of his appearance lacks, a party desirous to produce evidence has a right to produce Shahadah-ala-Shahadah (ÑeBér»A Ó¼§ ÑeBéq). Where a witness is under fear that he shall be killed in combat (police contest) can also produce this type of evidence. Under this type of evidence witness appoints two witnesses who depose on his behalf. It should be kept in mind that clash in oral evidence extinguishes its truth-ness.
Evidence can be transferred to two persons where life of innocent person depends upon evidence of the person who wants to conceal himself and refrains to appear before court due to reasons certain. Two persons are the requirement of law as their evidence can be tested against each other while evidence of one person cannot be tested. So to conclude the case in the absence of actual witness, evidence of two persons becomes necessary.
How oral evidence is got recorded: There are three main methods whereby oral evidence can be got recorded, such as:
1. Spoken or oral recording: Where witness is educated and able to convey his evidence, having well five senses, i.e., has good sight, hearing, and perception power, must get record his evidence personally by way of oral evidence.
2. Written recording: Where witness has all requisite qualities except the power of speaking, i.e., he is dumb (mute, tongue-tied, silent, speechless), but he may write, he may give evidence by way of writing.
3. In “yes” or “no” form: Where witness is deaf (lacking sense of hearing, hearing impaired, without hearing, unable to hear) and dumb, he can answer of questions of examiner in chief or cross examiner in term of “yes” or “no” by body gesture (use of sign language, head motion).
Preference of ocular evidence: Ocular evidence is preferred on hearsay evidence on the grounds of test of eyewitness. Where document has been lost due to any reason uncertain, evidence of eyewitness can testify its truth even the person testifying was not signatory on document.
Test of evidence: Court may apply three tests to come to conclusion whether the evidence given is true. Hearsay evidence is liable to test. Following are the three tests:
1. Oath: In first place, court takes oath from the witness. It is understood that the person giving evidence under oath is true. But if, later on, it is revealed that the evidence given under oath was false, the same punishment shall be imposed to the person who gave false evidence. Punishment on false evidence is not forgiven. False evidence is not tolerated. Particularly when death penalty is imposed on false evidence, the person upon whose false evidence, innocent person is hanged is also punished with death penalty. In other cases imprisonment upto ten years can be given.
2. Cross-examination: In second instance, test which court applies is cross-examination. If cross-examiner puts right questions to witnesses, it can infer the reality. True and untrue can be separated. False and truth can be discovered. Reality can be exposed. Good cross-examination can bring to light the actual reality.
3. Demeanor (face reading): Finally court may examine the face expression during the evidence. Court shall look into face and eye expression. Expressions never speak lie. Eyes and face always speak truth. Variance in reality and statement appears on face, which testifies the actual position of statement.
Exception: Evidence under Shahadah-ala-Shahadah (ÑeBér»A Ó¼§ ÑeBéq) is not applicable in Hudood cases.
Cases in which statement of relevant fact by person who is died or cannot be found Article 46: Some time person dies and dying makes person incapable to appear in court to give evidence. There may be some other reasons for such disappearance like that the person has left the country or he cannot be found or he is under fear of death, or other reasons whatsoever relevant are. His statement can be admitted in lieu of his personal appearance.
There are some exceptions to the Hearsay rule of the evidence. Secondary evidence of any oral statement is called hearsay evidence. The repetition by a witness of that which he was told by someone else, who is not called as a witness is hearsay, and is therefore, as a general rule, inadmissible. The reasons for this rule are obvious. We can generally trust a witness who states something, which he himself has either seen or heard; but when he tells us something, which he has heard from another person, his statement is obviously less reliable thus unsatisfactory.
A multitude (gathering, collection) of probable contingencies diminishes its value. The witness may have misunderstood or imperfectly remembered, or even may be willfully misrepresenting the words of a third person; or the later may have spoken hastily, inaccurately, or even falsely. Moreover, the person who is really responsible for the statement did not make it on oath; he was not cross-examined upon it, and the court had no opportunity of observing his demeanor when he made it. It is fundamental principle of our law that evidence has no claim to credibility, unless it is given on oath, or what is equivalent to an oath, and unless the party to be affected by it has an opportunity of cross-examining the witness.
Following are the cases in which statement in lieu of evidence is admissible:
1. When it relates to cause of death: Where a person is dying and cannot appear in court for evidence in offence committed against his body is not required to attend court. Recording of his statement in the presence of two witnesses is sufficient to prove offence committed. Only Police Officer having jurisdiction over subject matter is competent to record such dying declaration. Person dying knows well about the murderer or guilty person. He also knows the reasons of such injury. His statement should be in written form. If he is incapable to write statement, then competent Police Officer writes the statement in the presence of two witnesses. It may contain different questions and their answers.
This evidence is admissible only in case where person injured has been died after getting record of his statement. If he is alive, he must be produced in court for evidence. In another case, this statement must be in writing.
Value of the evidence: Evidence given in such a manner has the same value as evidence given in the ordinary manner. Death penalty may be given upon this evidence. It is as good as evidence, as ocular evidence is. Court keeps in view of the smell truth in the evidence.
Case: In an English case an English lady received grievous injury and was near to death. She was not in such a position to tell her story. Policeman said her to move her head in “yes” or “no” position when he will ask questions from her. She replied all his questions, which he recorded. Death penalty was given on this evidence.
Case: In another case witnesses told the story of the person killed. They said that bullet was fired within 10 to 12 feet distance. After getting injury, victim turned back and saw his enemy with gun and then recognized the guilty person who had fired over him. This evidence was not admitted on the ground that it is not possible for an injured person to turn back for the recognition of murderer within such distance against the injury caused by such high velocity gun.
Case: In another case an injured person was taken into hospital and was kept in lawn for a longer time. His statement was recorded quite after his arrival in hospital. Evidence was not accepted on the grounds of suspect that doctors might have tried to fabricate the evidence. Since the smell of truth was suspected therefore evidence not admitted.
2. Where statement is made during the course of business: Where person has made his diary in the course of business and left the country or concealed himself due to any reason, his recordings can be produced in court as evidence.
For instance, Captain of the vessel maintains the logbook in which he records day to day transactions such as speed of ship, its direction on certain time, position in sea, distance from seashore, accident etc. Where Captain is incapable to appear before court to give evidence due to any reason, his maintained logbook shall serve the purpose to confirm the evidence. This evidence is as much as valuable as the evidence given by the actual person required.
Doctors maintain report while making postmortem. They put all transactions in register. In the absence of the doctor who has made the report, such record can be produced in court to prove the facts in lieu of person who made it.
Entry of death in corporation’s record is also another instance. Nikah is entered in prescribed form and it is got registered. Such registry is conlusive proof of Nikah.
3. Admission against the interest of maker: Where an evidence may cause injury to the person giving it and his statement may contribute in the decision or where he may suffer from the pecuniary loss, upon his behalf, his statement can be put forward to decide case. Where a person admits the borrowing of Rs. 20,000/- in civil suit, it means he has admitted the fact against his interest thus his statement serves as valid evidence. Court always welcomes this sort of admission because it leaves nothing undone.
4. Where custom proves: Where in the dispute as to claim of ownership over pasture (grazing land) could not be proved due to non-appearance of person, then custom of the locality can prove such dispute. There are certain customary rights of person over pasture, fishing, boating, well, road etc. The questions whether road is public or private, statement of the person who knows the facts or village headman are relevant. Person making evidence certifies in writing that the particular right was customary.
5. Existence of relationship – other person who knows: There are three types of relationships, i.e., blood, marriage, and by adoption. Where the relationship is to prove and there is not personal evidence, how such relationship shall be proved? In the absence of principal witness, other people who know or have reasonable believe on the existence of relationship may appear to give evidence. He may be of witness of solemnization of his marriage or he may have attended his wedding anniversary or his son’s birthday ceremony. Marriage certificate can prove existence of relationship. Any other person who has special knowledge can submit his written statement.
6. Proof of Will: Where Will is written
and got registered, shall be enough to prove the existence of relationships.
Personal appearance shall become immaterial. When court issues the certified
copy of Will, which is called Probate, proves the relationship. Special mean of
knowledge of the facts of relationship proves the case. Pedigree tree is such a
thing to prove relationship. Family settlement, which is written, is also proof
7. Creation of rights: Where rights are created in favour of others like grazing rights or fishery rights etc., deed in which such rights are created is conclusive proof of right. Where document or deed is not available the circumstances such as sub lease may prove the creation of right of certain person or persons.
The question is whether A has a
right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage
of the fishery by A’s father, a subsequent grant of the fishery by A’s father,
irreconcilable with the mortgage, particular instances in which
A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbors, are relevant facts.
8. Several eyewitnesses: Where a person makes a caricature and fifty persons watch it and make protest considering it defamation are not required to appear before court to prove incident. Mere presence of one person shall be considered sufficient to prove case. For instance, A sues B for a libel expressed in a painted caricature exposed in a Station Housing Officer window. The question is as to the similarity of the caricature and its libelous character. The remarks of a crowd of spectators on these points may be proved.
Relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated Article 47: Where a person gives evidence in a judicial proceedings or before any person authorized by law is relevant in later stage even if he conceals himself later on. Prior evidence is admissible. This provision has some exceptions:
1. Similar proceedings: Proceedings should be same otherwise evidence shall not be relevant.
2. Same parties: Proceedings should be within same parties or their representatives. Where parties are not same, such evidence becomes irrelevant.
3. Right and opportunity of cross-examination: Right of cross-examination was provided to adverse party. They also had opportunity to cross-examine. Whether they availed or not the opportunity is irrelevant, but mere the provision of right and opportunity is sufficient to consider the evidence.
4. Similarity of the questions: Questions should be same in the first and subsequent proceedings. Minor change is negligible. Substantial similarity is required.
Relevancy of certain judgement in probate, etc., jurisdiction Article 55: Where a judgement in personam is pronounced, it is considered conclusive proof. For example, where dispute between A and B is pronounced against B shall not affect to C who is not party to this case. This Article consists on two parts. The first part makes the final judgement, order, or decree of a competent court in the exercise of probate, matrimonial, admiralty, or insolvency jurisdiction relevant, the second part makes the judgements conclusive proof in certain matters. But as far as judgement in rem is concerned, it not considered conclusive proof generally. But there are some exceptions to this rule such as:
1. Probate: Where court issues certified copy of Will, it effects the necessary and proper parties of the case either they are present or not in court. Their consents become irrelevant. Where court issues certified copy of Will, it can be produced as relevant fact in other cases. The grant of probate is conclusive proof of the title of executors and of the genuineness of the Will admitted to probate. The conclusiveness of the probate rests upon the declared Will of the Legislature. The grant of probate is the method, which the law specially provides for establishing a Will. Probate ceases the legal character of demised person. He is now no more owner of the property in question.
2. Matrimonial: Where divorce takes place and judgement is pronounced it becomes conclusive proof being the separation of the two persons. It is relevant for other party. A judgement of a matrimonial court, decreeing divorce or nullity of marriage is binding as to the status of the parties concerned. It is conclusive upon all person that the parties have been divorced and that they are no longer being husband and wife. But a judgement in a suit for restitution of conjugal rights is a purely private suit between two persons, and such a judgement is not a judgement in rem within the meaning of this Article.
3. Admiralty: Where matter is related with merchant navy, it affects others. It is relevant for other party. Admiralty jurisdiction is conferred on several High Courts by Letters Patent. It ceases its legal character.
4. Insolvency: Where a person has been declared insolvent, he affects others who are solvent. His insolvency becomes relevant for others. A previous judgement passed on a compromise is a judgement in rem within the meaning of this Article and is therefore no bar to a subsequent suit. Judgement is relevant and conclusive proof for other solvent associated parties. Judgement declares the legal character of solvent into insolvent. He ceases to be a solvent.
Conclusive proof: When final judgement is pronounced, it becomes conclusive proof in all cases above noted. Once the case has been decided it is binding on all parties and relevant as well. Ignorance or consent of others remains no relevant and important.
Relevancy of judgement in rem Article 56: Any judgement, which is in rem, is relevant for other parties but it is not conclusive proof, which it includes. This judgement can be considered but not as conclusive proof.
Under this Article judgements relating to matters of a public nature are declared relevant, whether between the same parties or not. It also forms exception to the general rule that no one shall be affected or prejudiced by judgement to which he is not a party or privy. The exception just stated is allowed in favour of verdicts. Judgements, and other adjudication upon subject of a public nature, such as customs, prescriptions, tolls, boundaries between parishes (district), counties, or manors (large house), rights of ferry, liabilities to repair roads, or sea-walls, moduses, and the like. In all cases of this nature, as evidence of reputation will be admissible, adjudication, which for this purpose are regarded as a species of reputation, will also be received, and this, too, whether the parties in the second suit be those who litigated the first, or be utter strangers.
These exceptions are based on the principle that in matters of public right the new party to the second proceeding, as one of the public, has been virtually a party to the former proceeding and therefore, he is properly excused. For the application of this Article two conditions are necessary. Firstly, that the judgement must relate to a matter of public nature and secondly, that it satisfies the first requirement that it is not a judgement which is admissible under either of the last preceding two Articles.
Example: 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.
Judgement other than in rem, public right, and previous Article 57: Where previous judgement, judgement in rem, and judgement of public right itself comes under litigation as fact in issue then they become relevant.
The cases contemplated by this Article are those where a judgement is used not as res judicata or as evidence more or less binding upon opponent by reason of the adjudication which it contains, because judgements of that kind had already been dealt with under one or other of the immediately precedent Articles. But the cases referred to in this Article are such as the Article itself illustrates viz., when the fact of any particular judgement having been given is a matter to be proved in the case. As, for instance, if A sued B for slander, in saying that A had been convicted of forgery, and B justifies upon the ground that they alleged slander was true, the conviction of A for forgery would be a fact to be proved by B like any other fact in the case, quite irrespective of whether A had been actually guilty of the forgery or not.
A judgement recovered against a surety will be evidence for him to prove the amount which he has been compelled to pay for the principal debtor but it furnishes no proof whatever of his having been legally liable to pay that amount through the principal’s default.
If A gets a decree for the possession of land against X and Y, and X’s son murders A in consequence thereof, the existence of the judgement is relevant as showing the motive for the murder.
Fraud or collusion in obtaining judgement Article 58: If judgement, which is in rem, i.e., relevant and conclusive proof against other parties is obtained by way of fraud or collusion (conspiracy) can be challenged on such grounds. Incompetence of court in above cases can also be challenged.
For example, probate has to issue by District Judge and not by Magistrate. If issued by Magistrate, can be challenged.
Where a child is killed in road accident and an irrelevant person by impersonation shows himself his father and remits the guilty person for his acquittance, can be challenged.
Relevancy of third party’s opinion Article 59: There are certain things which alone court cannot ascertain. Court needs help of expertise. Court may need expert opinion in following cases:
1. Foreign law.
4. Identification of handwriting.
5. Finger impression.
Persons who help in such matters are termed as experts. Court forms its opinion with the help of expertise. Their opinion is relevant.
As a general rule a witness is allowed to speak such facts only as are within his personal knowledge, i.e., which he has seen or heard or otherwise perceived with his senses. His opinion or belief as to the existence or non-existence of a particular fact is irrelevant because that is within the exclusive knowledge of the court or the jury, who are to form their own opinions from the facts placed before them by witnesses. Sometimes, however, cases come up in courts, which involve matters that are beyond the range of common experience or common knowledge. In those cases, to assist the court in coming to a correct conclusion, the opinion of those who have had training or experience and are consequently experts on the particular matters are allowed to be given. Expert opinion is relevant and admissible merely to aid the court forming its opinion. The court can come to its own conclusion independently of expert’s opinion.
Illustrations: The question is, whether the death of A was caused by poison. The opinion of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
The question is whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to Law. The opinion of experts upto the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to Law, are relevant.
The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.
The opinion of experts on the question whether the two documents were written by the same person or by different persons is relevant.
Competency of varied opinion Article 60: Where opinion of expert is challenged or rebutted remains relevant until disproved. When the opinion of an expert is relevant, any fact which supports or is inconsistent with that opinion cases bearing similarity to the case under enquiry, in order to support his opinion. Similarly, evidence of other facts, which though not themselves relevant to the issue but which are inconsistent with the opinion of the expert, may be given in rebuttal. The opinion of an expert is open to corroboration or rebuttal.
The question is, whether a certain poison poisoned A. The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny are to be the symptoms of that poison, is relevant.
Opinion as to handwriting when relevant Article 61: Persons who is acquainted (familiar, conversant) with other person, his opinion is relevant where matters is concerned with his handwriting. Statement of manager is relevant with regard to evidence against his stenographer. Close friend or immediate senior can easily identify the handwriting of their related persons. They have seen their handwriting in normal circumstances. Two persons who are interconnected with each other and exchange their documents for regular course of business know each-others’ writing. Where person is aware of other, his opinion becomes relevant.
Comparison of signature by court Article 84: Where court is in doubt about the signature may order such person to put his signature before court and court may compare itself the signature. Court may also compare finger impressions.
The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or fingers alleged to have been written by such person.
The court may compare the disputed signature, writing, or seal of a person with signatures, writings, or seals which have been admitted or proved to the satisfaction of the court to have been made or written by that person. A court may rely upon its own comparison of the signature, writing, or seal, unaided by expert evidence.
There are various admissible ways of proving handwriting. Thus it may be proved:
1. By the testimony of an expert (Article 59).
2. By the person who wrote or signed the document in question.
3. By a witness who actually saw the party writing or to sign the document in question.
4. By the testimony of a person who is acquainted with the handwriting of the writer (Article 61).
Law of evidence provides another mode of proving the document, i.e., by direct comparison of the disputed signature or writing with the one, which is admittedly genuine or proved to be so. The court is also entitled to make independent comparison of handwriting apart from opinion of expert.
If a person whose handwriting is in question is present in court, he may be asked to write something for the purpose of comparison with the writing, which is alleged he has written.
Law authorizes court to order any person to allow his Finger Impression to be taken for the purposes of any investigation or proceeding under the Code of Criminal Procedure provided that such person has at some time been arrested in connection with such investigation or proceeding.
In applying the provisions of the law on this topic, it is important not to lose sight of its exact terms. It does not sanction the comparison of any true documents but requires that the writing with which the comparison is to be made or the standard writing as it may be called, shall be admitted or proved to have been written by the person to whom it is attributed and next the writing to be compared with the tendered or, in other words, the disputed writing must purport to have been written by the same person, that is to say, the writing itself must state or indicate that it was written by that person.
Opinion as to existence of right or custom, when relevant Article 62:
Where court has to ascertain the opinion about the existence of any general
custom or right, the evidence of the person who is likely to know the
particular custom or right is relevant. Evidence of Headman of village is
relevant in such cases. This method is applicable in the ascertainment of
general custom or class of persons and not public. Public means entire
The right of the dwellers of a particular village to use the water of a particular Well is a general right within the meaning of this Article.
Opinions of persons who are in a position to know of the existence of a custom or usage in their locality are admissible. For example, a person, who had been in the habit of writing out deeds of sale, or one who had been seeing transfers frequently made, would certainly be in a position to give his opinion whether there was a custom or usage in that particular locality. Opinion of such person would be admissible.
When a custom has been repeatedly brought to the notice of the courts and has been recognized by them regularly in a series of a case, it attains the force of law.
The law provides another exception to the general rule that opinions of witnesses are not admissible in proof of facts. Law states that where any question of custom or right is to be decided, opinions of person who are likely to know of it, are admissible.
Law makes relevant opinion as to the existence of any general custom or right, of those persons who would be in a position to know of the existence of such custom or right if it did exist.
The law does not necessarily require that the person stating his opinion should have personal knowledge of the existence of the right or custom. He will be qualified to state his opinion if he is in a position to know of the existence of the custom or usage in question in his locality.
The opinions of person likely to know about village rights to pasturage, to use of paths, watercourses, or ferries, to collect fuel, to use tanks and bathing ghats, mercantile usages, and local customs would be relevant under this Article.
Tribal or family custom as to inheritance, when in issue, the evidence of members of family or tribe is relevant. However, it is not necessary that specified instances should be cited.
According to law the opinion of only those person is relevant who are likely to know of the existence of any general custom or right. Such persons should be residents of the locality.
Opinion as to usages, tenets, etc., when relevant Article 63: Under law opinion of witnesses is admissible on the following matters:
1. Usages of any body of men, e.g., usages of trade and agriculture, mercantile usages, or any other usages common to a body of men.
2. Usages of a family, e.g., custom of primogeniture (heritage, legacy, patrimony).
3. Tenets of any body of men. This includes opinion, principle, dogma or doctrine, which is held or maintained as truth. It will apply to religion, politics, science, etc.
4. The constitution and government of any religious or charitable foundation.
5. Meaning of words and terms used in particular districts or by particular classes.
The opinion, in order to be admissible under law must be that of a person having special means of knowledge. The opinion may be based on knowledge or information derived from statements of deceased persons.
It is, of course, not the opinion of every person that is made relevant under law. The person whose opinion is declared to be a relevant fact by this law are those who have means of special knowledge of the matters given under law. In this way the opinion of the members of a family as to the usages of that family is relevant as the opinion of those person who had special means of knowledge about the usages of that family.
Opinion on relationship when relevant Article 64: Three ways establish relationship, i.e., blood, marriage, and adoption. Where court has to ascertain the relationship between two persons, opinion of the person having special knowledge by way conduct or otherwise know whether they have been living being husband and wife is relevant. This way of ascertainment is applicable only in the cases where person has been died and inheritance cases etc.
Special knowledge becomes irrelevant where divorce or criminal proceedings are being conducted. Remarriage during the lifetime of other partner is prohibited and punishable u/s 494 of Pakistan Penal Code.
1. Kinds of relationship: s
a) Blood: s
b) Marriage: s
c) Adoption: s
2. Qualities: s
a) Personal knowledge: s
b) Seen marriage: s
c) Attended wedding ceremony: s
d) Attended son’s birthday: s
3. Administrator of Will: s
4. Witness in deed: Transfer of right.
5. Presence during transaction: Like marriage, adoption, or engagement.
Grounds of opinion when relevant Article 65: Where the opinion of an expert is receivable, the grounds or reasoning upon which such opinion is based may also be inquired into. Opinion is no evidence without assigning the reason for such opinion.
In civil cases character to prove conduct imputed irrelevant Article 66: Character of the witnesses in both criminal and civil cases can be taken into consideration. As far as civil cases are concerned personal character of party is irrelevant. But in criminal cases personal character of the party is relevant.
Where itself character is under proceeding directly then personal character becomes relevant. Piousness of the party is not taken into consideration. They have to produce evidence on the matter under litigation.
In respect of the character of a party, two distinctions must be drawn, namely, between the case when the character is in issue and is not in issue and when the case is civil or criminal. When a party’s general character is itself in issue, whether in a civil or criminal proceeding, proof must necessarily be received of what the general character is or is not. But when general character is not in issue but is tendered in support of some other issue it is, as a general rule, excluded.
In criminal cases previous good character relevant Article 67: Good character of accused in criminal case is relevant. The principle upon which good character may be proved is that it affords a presumption against the commission of crime. This presumption arises from the improbability, as a general rule as proved by common observation and experience, that a man who has uniformly pursued an honest and upright course of conduct will depart from it and do an act so inconsistent with it.
The accused, therefore, is always at liberty to adduce evidence of his good character as tending to disprove his commission of the offence. But if the offence charged against the accused is clearly established the evidence of good character will not be of much avail to him.
Meaning of character: According to
Definition of character: According to Webster’s dictionary, “character is a combination of the peculiar qualities impressed by nature or by habit of the person, which distinguish him from others”.
Previous bad character not relevant, except in reply Article 68: Articles 67 and 68 should be read together. This law does not apply to cases in which the bad character of any person is itself a fact in issue. A previous conviction is relevant as evidence of bad character. Evidence of previous conviction is relevant as evidence of bad character according to law.
The rule embodied in this Article is found on the reason that such evidence tends to prejudice the tribunal against the accused and interferes with the formation of a calm and dispassionate (fair, impartial, neutral, judicial) judgement of the case.
Evidence of bad character of an accused person (of whose good character, evidence has been given) is not relevant under law for he purpose of raising a general inference that the accused is likely to have committed the offence charged.
Such evidence is irrelevant and cannot be legally admitted in evidence whether elicited (obtain, summon, gain) by prosecution or by the defence. Where accused is caught red handed, there good character becomes irrelevant. Prosecution cannot advance bad character in arguments. It is open only where accused gives evidence of his good character.
As a general rule, it is not competent for the prosecution to show in the first instance that the accused bears a bad character. Where, however, the accused given evidence of his good character, it will be then open to the prosecution to show that he is of bad character. In other words, evidence of bad character of the accused is admissible only in disproof of the evidence of his good character.
Character of affecting damages Article 69: In civil litigation where character affects the amount of damages, it becomes relevant. It is in civil cases, where the question amount of damages to be awarded to the plaintiff is concerned, that the character of the plaintiff becomes relevant.
In civil cases good character, being presumed, may not be proved in aggravation of damages, but bad character is admissible in mitigation of damages, provided that it would not, if pleaded, amount to a justification. For instance, in cases of defamation the general bad reputation of the plaintiff may be proved. In cases of breach of promise of marriage the plaintiff’s general character for immorality is relevant. In cases of reduction evidence of the general character for immorality on the part of the person is relevant. The argument in favour of considering reputation is that the person should not be paid for the loss of that which he never had.
According to the law, evidence can be given only of general reputation and general disposition and not of particular acts by which such reputation or disposition is shown.
Where the character of a person affects the amount of damages, such character is a part of the issue. Where A sues B for defamation, and the issue is as to the proper amount of compensating the question arises whether it is fair to measure his compensation by the quality of an original actual standing in the community, and, in particular, whether the fact that he had little or no reputation to loose may be considered as good reason for diminishing the damages accordingly.
Character evidence of the daughter is admissible in an action for seduction brought by the father for her disgrace to the father must naturally be less or lacking if the daughter is already of bad reputation for chastity; her previous bad reputation may, therefore, be show. The father’s own reputation is immaterial in such a case.
In actions for malicious prosecution, the defendant may show the general bad reputation of the plaintiff as known to him when he launched the prosecution.
Proof of contents of documents Article 72: Contents of documents should be proved either they are direct or indirect. This proof should be upto the satisfaction of court. Where court does not satisfy, proof shall remain unacceptable and judgement shall remain in pipeline. It may be proved by oral or documentary evidence, but where documentary proof is available, it excludes oral evidence. Oral evidence comes later where documentary proof becomes impossible. Where both evidences are available, as a general rule, documentary evidence excludes oral evidence.
Where the contents of document are to be proved, the general rule is that these must be proved by the production of the original document or what in other words is known “primary evidence”. Where, however, the original cannot be obtained, e.g., where it is lost or destroyed due to any certain or uncertain reason, there the secondary evidence, e.g., a copy of it or an oral account of its contents may be adduced.
It is clear that contents of document must be proved by primary evidence unless secondary evidence is declared admissible under circumstances which law accepts.
The term primary and secondary evidence, are mainly of importance in connection with documents though the term primary evidence is also, but rarely, applied to oral evidence of which direct evidence is said to be primary.
Primary evidence Article 73: Article 73 says that as far as primary evidence is concerned, document itself constitutes it on which the dispute arisen.
This Article defines “primary evidence”, which means the document itself produced for the inspection of the court. The fundamental notion of producing the primary evidence that the terms of writing must be proved by producing it and not by offering testimony about it. When the writing constituting a bilateral transaction is executed by the parties in duplicate or multiplicity, each of these parts is the writing, because by act of the parties each is as much the legal act as another. It can make no difference that one party has signed on the document, taken by the other, except where it is desired to prove specifically the signature.
In the case of counterparts, each document is fully executed by that party. Execution in counterparts is a method of execution adopted when there are two parties to the transaction. Only that is to be bound by it and that party delivers it to the other party. Thus if the transaction is a contract between A and B, the document is copied out twice and A alone signs one document while B alone signs that other.
Where a document is executed in parts, i.e., each party prepares document on the stamp paper of the similar value and signs it shall constitute the original document admissible for evidence. The expressions “executed in several parts” and in “counterparts” refer to the mode in which documents are sometimes executed. It is necessary to execute a document in several parts when each party to a transaction wants to have a complete document in his own possession. To effect this, the document is written as many time over as there are parties and each document is executed, i.e., sealed and signed, as the case may be, by all the parties and then each party retains one document thus executed.
There is a far better guarantee for a number of printed paper struck off from the same machine at the same time being correct facsimiles of each other, than of a number of written paper, for here the draftsman or draftsmen may introduces differences impossible with the machine. In this case, each machine made copy is accepted as primary evidence of all the other, inter se. For instance, if it is desired to prove the publication of libel in a newspaper and copy of the issue in which the libel appears would be primary evidence of publication in all the other copies of that issue. Thus, printed, lithographic, photographic, and other reproductions made by one uniform process are primary evidence of each other. But if, in the circumstances of a particular case, the original not a reproduction but the document from which the reproduction was made, the reproduction would be merely secondary evidence of the original.
Secondary evidence Article 74: Where court accounts for a party and party advances reason for the lost or damage of primary evidence, the secondary evidence shall be admissible. Original document may be brunt, lost, stolen, or in the possession of opponent or adverse party and cannot be produced in court as primary evidence.
Law says that primary evidence is the best evidence obtainable, i.e., the statement of an eyewitness or an original document. This Article defines secondary evidence. The secondary evidence as the name implies assumes the existence of better evidence, i.e., the original evidence. As a rule secondary evidence is not admissible until the non-production of primary evidence is accounted for.
Following constitutes secondary evidence:
1. Certified copies: Certified copies mean copies signed and certified as correct by officials having custody of the original. Public document may be proved by mere production of certified copies. Law says that every document, which purports to be a certified copy, is to be presumed to be genuine.
2. Copies by mechanical process: 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. This law supposes the document from which a mechanical reproduction is made to be the original document. Copies in order to be admissible as secondary evidence must have been made from the original by some mechanical process which would ensure the accuracy of the copy, e.g., printing, lithography, photography and the like.
3. Copies made or compared from original: A copy merely as a piece of paper, has no standing as evidence. It is not admissible even as secondary evidence of the contents of the original. But a copy made from the original though not compared with the original is admissible as secondary evidence. So it is a copy compared with the original though not made from the original. It follows, therefore, that a copy, which has neither been made from the original, nor has been compared with the original, will be inadmissible in evidence. Secondary evidence under this Article includes copies made from or compared with the original and even oral account of the contents or a document given by some person who has himself seen it.
4. Counterparts of document: Where a document is executed in counterparts, each party only signs the part by which he is bound and each counterpart is the primary evidence against the party signing it and his privies. But each counterpart is only secondary evidence as against the parties who did not execute it. Execution in counterpart is a method of execution, which is only adopted when there are two parties to the transaction. Thus simultaneous execution of a lease and qabuliat (OÎ»ÌJ³) is a well-known form of the execution of a document in counterparts.
5. Oral evidence of eyewitness: This clause means that the oral evidence of the contents of the document must be given by some person who has seen its contents, that is to say, who has read the document. The oral account of contents of a document given by some person who has merely seen it with his own eyes but is unable to read it is not secondary evidence of the document.
Proof of documents by primary evidence Article 75: This law embodies the general rule that the contents of a document may be proved either by primary or by secondary evidence. This law rests on the maxim that the “best evidence” must always be produced. The reasons are simple and obvious enough, as dictated by common sense and long experience. Since the best evidence of the contents of a written instrument is the instrument itself, that must be produced and no secondary evidence of its contents will be admissible unless the absence of the original is satisfactorily accounted for. For example, by proving that it is lost or destroyed, or that it is in possession of the opposite party and he will not produce it after a notice to produce has been duly served upon him.
Cases in which secondary evidence relating to document may be given Article 76: The general rule is that the contents of a document must be proved by the production of the original document itself and that no secondary evidence of its contents will be admissible unless the non-production of the original has been satisfactorily accounted for. Document means a document admissible in evidence. If a document is admissible in consequence of not being registered or not being properly stamped, secondary evidence cannot be given to its existence. There are exceptional cases, however, in which secondary evidence of document is allowed and those are stated in this Article which are as follows:
1. Document is beyond reach: This clause contains three conditions for the application of this clause namely, that when the original is:
(1) In the possession or power of the person against whom the document is sought to be proved.
(2) Of any person out of the reach of or not subject to the process of the court.
(3) Of one legally bound to produce it but remain fails after notice is served.
Under this clause secondary evidence may be given of the contents of the document when the original is in possession of power of the adverse party and he fails to produce it after a notice to produce has been duly served upon him.
In this case any secondary evidence of the contents of the document is admissible.
2. Written admission against interest: Where opponent party admits the contents in writing. Under this clause written admission of the contents of a document by person against whom they are sought to be proved are always admissible as proof of the contents of the document even though the original is in existence and no notice to produce it given. Under this clause the person contemplated is the person in whose possession the document is. In such a case secondary evidence of the contents of such a document can be given without giving notice to that person to produce the document.
Only written admission is admissible.
3. Destruction cases: The loss of destruction of writing, if satisfactorily shown, opens the door for the admission of secondary evidence as to its contents. Copy of a private document is only admissible after proof of loss or destruction of original. Where it has been satisfactorily shown that the original writing is lost or destroyed, secondary evidence of the contents of such writing is admissible.
In this case any secondary evidence of the contents of the document is admissible.
4. Heavy in size: Secondary evidence is admissible when it is impossible or highly inconvenient to produce the original or on account of the great and impracticability of producing the original. This occurs where the original is a fixed inscription (writing), such as that on a tombstone or flag displayed at a public meeting or a placard pasted on a wall. Similarly notices warning to trespassers affixed on boards may also be proved by secondary evidence, since they account conveniently, if at all, be produced in court.
In this case any secondary evidence of the contents of the document is admissible.
5. Immovable: The law says that thing not easily moved, as in the case of things fixed in the ground or a building, for example, notices painted on walls, tablets in buildings, tombstones, monuments, or marks on boundary stones or trees. Secondary evidence is admissible on account of the great inconvenience and impracticability of producing the original.
In this case any secondary evidence of the contents of the document is admissible.
6. Public document: Where the original is a pubic document, secondary evidence of its contents is admissible even though the original is in existence and available. This exception has been adopted for reasons of “the great inconvenience in removing the public documents” and the risk of loss that would be incurred if they were removable. Under this clause only a certified copy of the document is admissible. This clause is intended to protect the originals of public records from the danger to which they would be exposed by constant production in evidence. Public documents can only be proved by their production or by secondary evidence of the nature described in this clause. The oral evidence of a witness cannot prove them.
Only certified copy of the document, but no other kind of secondary evidence, is admissible.
7. Permissible copy: Certified copies are admissible as secondary evidence under this clause. Articles 76, 78, and 86 may be read along-with it where an original document cannot be given in evidence owing to a statutory ban its certified copy cannot be admitted in evidence, e.g., certified copy of the income tax return. When a document falls within this clause only a certified copy is admissible in proof of its contents.
Only certified copy of the document, but no other kind of secondary evidence, is admissible.
8. Numerous accounts: This provision is meant for saving public time. Where the fact to be proved is the general result of the examination of numerous documents and not the contents of each particular a document and the documents are such as cannot be conveniently examined in court, evidence may be given, under this Article, as to the general result of the document by person has examined them and who is skilled in the examination of those documents, although they may be public within the meaning of this Article.
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.
9. Forming judicial record: Where original document is within the custody of court being judicial record and remains unable to produce, its secondary evidence shall be admissible.
Rules as to notice to produce Article 77: Notice is required in order to give the opposite party a sufficient opportunity to produce the document, and thereby to secure the best evidence of its contents. Such notice may be disposed of with if it is not necessary on the pleadings or the court thinks fit to dispense with it.
When a document is in the hands of opposite party, it is necessary to serve him or his counsel with a notice to produce it and upon proving the service of the notice, secondary evidence of its contents may be given. The object of a notice is to give the adverse party an opportunity by producing the original to secure, if he pleases, the best evidence of its contents, and if he does not, to enable the party serving notice to give secondary evidence.
Notice to produce is not necessary in the following cases:
1. Notice: When the document is itself a notice, e.g., a notice to quit, a notice of dishonour of a bill, or a notice to produce. The reason for this is that if notice were required in case of notices, notices must go on ad infinitum (infinity, endless).
This exception appears to have been originally adopted in regard to notices to be produced for the obvious reason that if a notice to produce such a document were necessary the series of notices would become infinite.
2. Awareness of adverse party: Where a document is in the possession or under the control of a party and he fails to produce it, it should be taken that from the very nature of the case he knew that he would be required to produce it.
A notice to produce is not required when the nature or the case sufficiently informs the adverse party that he will be required to produce the document.
3. Fraudulent acquisition of adverse party: A notice to produce is not required if the adverse party obtains the possession of the document, the production of which is required, either through fraud or force.
4. Original already in court: The object of the notice is not to give the opposite party an opportunity of producing the proper testimony to support or impeach the document, but merely to enable him to produce it, if he likes, at the trial and thus to secure the best evidence of its contents.
Where a party is shown to have the original with him in court and refuses to produce it, secondary evidence will be admitted notwithstanding the want of a notice to produce.
5. Admission of lost by adverse party: If the adverse party or his agent admits the loss of the original document, notice to produce the document to the adverse party is nugatory (worthless). Where the document is admitted by the opponent to have been destroyed or lost or even out of his possession, no notice is necessary, for it is no longer a case of opponent’s possession but of loss.
6. Person, out of the reach or not subject of the court: Where the original is in the possession or power of a person outside the jurisdiction of the court, no notice to produce is necessary.
Proof of signature and handwriting of person alleged to have signed or written document produced Article 78: No writing can be received in evidence as a genuine writing until it has been proved to be a genuine one, and none as a forgery until it has proved to be a forgery. Writing itself is not evidence of one thing or the other unless accompanied by a proof of some sort, admissible in evidence.
Merely presentation of document in court as evidence is not sufficient. It is to be proved. A question always arises when document is produced, whether it is genuine one, i.e., signed or written by the person by whom it purports to have been signed or written.
Two witnesses must prove its truth. Where two witnesses are not available, one alive witness must testify its truth as document was written and executed before him and was signed in his presence. Attesting witness has to be brought in court to prove contents of document.
Where signature is obtained on white paper and later on text is written on it in the absence of the person, who had signed it, it shall not constitute the document originally executed. Execution of document must be completed in the presence of the persons between whom it is. It shall not be acceptable at all in the court of law. Such type of document does not create any right acceptable by court.
Where a document is registered, it may be taken to be proved without any independent proof of its execution being given.
This Article does not, however, lays down any particular mode of the proof of the signature of the writing, it merely requires the signature or the writing to be proved. Any mode of proof recognized by the Order may, in the discretion of the Judge and the circumstances of the case be considered sufficient.
1. Comparison by Court itself under Article 84:
2. Testimony of export under Article 59:
3. Person who wrote:
4. Witness who saw:
5. Who acquittance handwriting under Article 61:
7. Attesting witnesses:
8. Admission of party:
9. Circumstantial evidence:
10. Modern devices:
Proof of execution of document required by law to be attested Article 79: Two witnesses must prove the authenticity of the written document. This is legal requirement without which is has not evidentiary value at all. Both witnesses shall have to testify its truth. If one witness is died, second one shall testify in the absence of second one. Witness testifying must be subject to the court. Witness must be capable being witness. When witness becomes mad after making attestation, he shall become incompetent to testify the contents of document.
There are, however, certain exceptions to the rule that a document required by law to be attested must be proved by calling two of the attesting witnesses. These are:
1. When a party to the document admits its execution by himself.
2. When the document is thirty years old, the court may presume due execution and attestation and dispense with proof.
3. When the document is a registered one and executant does not specifically deny its execution, against whom it is to be used.
4. When the document is proved to be in possession of the adverse party who refuses to produce it after a notice. In such a case the party may give secondary evidence without calling the attesting witnesses.
Attestation means the witnessing of actual execution of document and of mere acknowledgement of execution by the executant. The attesting person must have seen the executant signing the document. Mere acknowledgement by executant before attesting person is insufficient.
Proof of signature: Ordinary rule for proving signature of any person on document would be to call the person in evidence. Where person who was alleged to have executed document had denied his signatures, calling that person in whose presence such document was executed could prove his signatures.
Proof where no attesting witness found Article 80: Mere presentation of original document in court is not sufficient to testify its truth or originality. Not only its production in court is necessary but its prove by the attesting witness is necessary.
This Article lays down the mode
of proof of execution of documents that require attestation. This means that
the Article is not attracted for the proof of documents, which requires no
attestation. It provides for the contingency when no attesting witness is found
or the document is executed in
Where the witness is not available who had attested the document at the time of its execution, it shall be proved either he has been died or gone elsewhere not possible to call.
Where the executant of, and all the marginal witnesses to, a mortgage deed was deed, it was held that the mortgage deed was sufficiently proved by evidence that the signature of the mortgagor was in his own handwriting. Also that the signatures of two of the marginal witnesses, were in their handwriting.
Admission of execution by party to attested document Article 81: Law enacts that an attesting witness is not necessary when a party executing a document admits the fact of execution. This Article applies only to a document duly executed, that is, executed in accordance with the formalities connected with a particular document.
The term “admission” in this Article relates only to the admission of a party in the course of trial of a suit and not to the attestation of a document by the admission of the party executing it.
This Article applies only to documents, which have been properly attested. Provisions of law requiring for the validity of certain instruments their attestation by certain number of witnesses are rules of law and not mere rules of evidence.
According to this Article, the admission of execution is sufficient proof against the party who admits the execution, but as against other parties the documents is to be proved by calling at least one attesting witness. Such admission is neither binding upon the other defendants who were not a party to it, nor upon the legal representative of the person admitting execution, as for instance, his son, or transferee.
The effect of this Article is to make the admission of the executant a sufficient proof of the execution of a document as against the executant himself, even though it may be a document attestation of which is required by law.
This Article operates only where the person relying on a document has not given any evidence at all of due execution of the document by the executant but relies on an admission of execution by the later. So that if a mortgagor admits execution of a document in the written statement, it is wholly unnecessary for the mortgagee to adduce any evidence as to the execution of the document.
Where party admits the execution
of document, it becomes sufficient proof of its truth and originality.
Where it is proved that the document was executed on gunpoint or the white paper was got signed and was not executed in accordance to law shall not be proof of its truth.
Proof when attesting witness denies the execution Article 82: Principally the attesting witness is required to prove the contents of document, but where he so denies, other means are required to prove the document. This denial may be at any reason.
This Article applies to all attesting witnesses, whether the documents require attestation or not. Thus, this Article becomes applicable if the attesting witness when called and examined deposes that the person alleged to have signed the document had only signed a blank paper. To sum up, this Article provides that if attesting witness to a document denies or does not recollect the execution of the document, its execution may be proved by other evidence.
Where an attesting witness has denied all knowledge of the matter the case stands as if there was no attesting witness and the execution of the document may be proved by other independent evidence.
The attestation of a document does not amount of an admission of its contents by the attesting person unless it can be proved that the document was read ever to him and that he made attestation conscious of the statement made in the document.
Proof of document not required by law to be attested Article 83: Under Registration Act, there are two types of documents, i.e., registration of those is necessary and those registration of, which is optional. If document is got registered registration of, which is optional, does not require to be proved as if it was unattested.
This provision is applicable only if all the parties are before the court, and in ex parte proceedings, the attesting person should yet be called. The executant of a receipt need not be examined where the payer has sworn to the payment.
Where the law does not require attestation for the validity of a document, it may be proved by admission or otherwise, as though no attesting witness existed.
Comparison of signatures, writing, or seal with other admitted or proved Article 84: There are certain modes of proving documents as follows:
1. Opinion of expert Article 59: Where court becomes unable to ascertain the originality of the fact, opinion of an expert resolves the problem.
2. Opinion of the person so acquainted Article 61: Person who is so acquainted with the handwriting of the writer, e.g., Manager may prove the handwriting of his Steno.
3. Person who writes the document: Person who actually writes or signs the document may also prove the truth of the document.
4. Who has seen the writing actually: Person who actually saw the party wrote or signing the document may also prove its contents.
Court may compare the signature, writing, or seal itself. Person present in court is asked to produce his writing, signature, or seal to append before court. Court itself examines the originality.
The court may compare the disputed signature, writing, or seal of a person with signatures, writings, or seals which have been admitted or proved to the satisfaction of the court to have been made or written by that person.
In applying the provisions of this Article it is important not to lose sight of its exact terms. It does not sanction the comparison of any true documents but requires that the writing with which the comparison is to be made or the standard writing as it may be called, shall be admitted or proved to have been written by the person to whom it is attributed. Next the writing to be compared with the tendered or, in other words, the disputed writing must purport to have been written by the same person, that is to say, the writing itself must state or indicate that it was written by that person.
Maxim “secundum allegata et probat” person alleging a fact must prove it. Plaintiffs having relied upon documents in question were required to satisfy court about the correctness and genuineness of the same.
Where such signature, writing or seal on particular document is not proved or admitted to be genuine, it cannot be legitimately used for comparing it with the signature, writing, or seal on other documents.
A court can call upon the accused to give his writing in court and make it available for comparison by an expert. A court has power to direct an accused person, present in court to make his finger impression for the purpose of comparison with another impression supposed to have been made by him.
Public documents Article 85: Documents are of two types, i.e., public and private. Article 85 deals with public documents. Article 86 simply says that documents which do not fall within the purview (reach, range) of Article 85 are private documents.
Under Article 85 only such documents are considered to be public document as form the acts or records of public officers. The mere fact that a document is kept in a public office does not entail the inference that it is a public document. It must be shown that it was prepared by a public servant in the discharge of his official duty. It can be produced as evidence without seeking of permission from court.
Following are the public documents as enumerated under Article 85:
1. Record or Act of the sovereign such as statues, gazettes, proclamations, and such like that.
2. Act or record of the tribunals such as records of courts of justice, decrees, judgements, writs, warrants, bill, etc.
or record of the public officers, legislative, judicial and executive of any
records kept in
5. Record of judicial proceedings such as record of confession made by Magistrate, deposition (attestation, announcements) of witnesses, oral information given to the pubic officer as to the commission of a cognizable offence and reduced to writing by him u/s 164 of Code of Criminal Procedure.
documents which maintains public servant under any law of
7. Registered documents the execution whereof is not disputed.
Private documents Article 86: All the documents, which do not fall within the definition of public documents, are private documents. All the documents, which are not defined as public documents, are private documents.
Certified copies of public documents Article 87: Under this Article certified copy of public record is defined. Following are the ingredients to form a public record as certified copy:
1. Who may issue: A public officer in whose custody public record is kept ordinarily during the course of normal work is authorized by law to issue certified copy of public record. Person who does not keep such record in ordinary course of official duty is not authorized by law to issue such certified copy.
2. Payment of legal fee: It is very important part of the issuance of certified copy of public record that fee has been paid for it before its issuance.
3. Issuance on demand: Person who has right to inspect the record may apply for the certified copy of public record. It is not issued without application of its demand.
4. Certification on foot of document: At the foot of the copy from public record, officer authorized puts the words “certified to be true copy”. Mere photocopy of public record does not form certified copy unless it is specifically certified as provided in law under Article 87 of the Qanun-e-Shahadat Order.
5. Name of issuing authority: Person who is issuing the certificate shall mention his name on certified copy.
6. Designation: Authority issuing certified copy shall also provide her designation as to have authority to issue such certified copy.
7. Signature: Officer issuing the certified copy puts his signature below the words “certified to be true copy”.
8. Date: Date is mentioned on which certified copy is issued.
9. Seal: Certified copy of public record remains incomplete until or unless official seal is not put into it.
Proof of documents by production of certified copies Article 88: Under law, entry contents of public record can be proved by production of certified copy. This rules is based on the ground of convenience of, since removal of the original for production in evidence would delay and hinder the official use of the files, would subject them to the risk of loss and would damage them by constant wear and tear.
Proof of other public document Article 89: This Article indicates how certain public documents are to be proved. A public document may be proved by the production of the original, or by a certified copy under Articles 88, or in the manner prescribed by Article 89.
1. Government notification may be proved by producing a copy of the Gazette in which it is published
2. Proceedings of the Legislature may be proved by the journals of those Legislatures, or by published Acts or by copies purporting to be printed by Government.
3. Proceedings of municipal body may be proved by a copy of which proceedings certified by the keeper thereof, i.e., secretary of municipality.
4. A foreign public document may be proved by the original or by a certified copy. But in the later case, the legal keeper of the document must certify the copy and there must be a certificate by a notary public or a diplomatic agent, to the effect that the legal keeper of the original has certified the copy.
Presumption as to genuineness of certified copies Article 90: Law raises a presumption as to the genuineness of certificates, certified copies or other documents which purport to be certified by any officer of the Central Government or by duly authorized officer in an acceding or non-acceding State.
Document produced in court in compliance of prescribed manner is presumed genuine and officer who attests it is presumed authorized by law until this presumption is disproved.
Court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the official character which he claimed in the said document. This presumption is liable to be rebutted. The words “shall presume” indicate that if no other evidence is given the court is bound to find that the facts mentioned in the Article stand exist.
When case comes to court, court presumes in favour of one party. Accused is presumed innocent until or unless prosecution proves his guilt.
Where stolen goods are recovered from a person, court shall presume that he is either thief or receiver of stolen goods until or unless he proves his innocence.
There are two types of presumptions, i.e., presumption of law (ir-rebut-able) and fact (rebut-able).
Under the old law of Evidence, where child is born after marriage, even after a week, was presumed legitimate provided husband does not denounce his legitimacy. This was rebut-able presumption of fact.
According to current Qanun-e-Shahdat Order, a child is presumed legitimate if he borns at least after six month of the solemnization of marriage provided husband does not denounce his legitimacy. This is also rebut-able presumption of fact.
Where presumption has been drawn in favour of one, no one can rebut it. Law has presumed that child under age of seven year is doli incapax, i.e., incapable of having mens rea. Therefore murder cannot be proved against child under seven years of age. This is ir-rebut-able presumption of law.
Presumption as to documents produced as record of evidence Article 91: This Article does not deal with the admissibility of the document referred to therein, but simply dispenses with the necessity of their formal proof by raising the presumption that everything in connection with them had been legally and correctly done. The court shall presume these things, viz.
1. That the document purporting to be recorded evidence or statements or confessions are genuine.
2. That the statements as to the circumstances under which they were taken by the officer who affixed his signature are true.
3. That the evidence, etc., was duly taken.
The Article does not render admissible any particular kind of evidence but only dispenses with the necessity for formal proof in the confession duly taken is tendered in evidence in the Sessions Court, calling Magistrate who recorded it. The court in such a case will presume that the document is genuine and the signature affixed is that of the Magistrate by whom it purports to be signed.
Presumption as to genuineness of documents kept under any law Article 92: Any document kept as required by law is presumed correct and genuine. Marriage Certificate is a public record. Date of birth in Municipal Committee is public record thus authentic and correct. Under this Article the court is bound to presume the genuineness of every document purporting to be a government Gazette, a newspaper, a journal, or a copy of a private Act of Parliament printed by the official printer. The presumption is rebut-able.
Presumption as to maps or plans made by authority of government Article 93: Any plan or map which government either central or provincial publishes for public purposes are supposed correct and genuine. Published charts are true until they are rebutted or disproved. They must be available in market for public use. Where map is prepared for departmental use or for own use shall not be presumed as genuine or correct.
Presumption as to collections of laws and reports of decision Article 94: The Article dispenses with the proof of books purporting to be published by the government of any country, containing laws and decisions of the court. Their accuracy and genuineness is to be presumed.
This Article lays down that when the court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the government of that country and to contain any of the laws of that country shall be presumed to be genuine.
Presumption as to power of attorney Article 95: When principal gives authority to his agent to act on his behalf is presumed the act of the principal itself. This Article authorizes court to presume the genuineness of the execution and authentication of a power of attorney when such execution was done before and authentication was done by any of the officials mentioned in this Article.
The court shall presume the due execution and authentication of a power of attorney when executed before and authenticated by a Notary Public, or any court, Judge, Magistrate, Pakistan Counsel, or Vice Counsel, etc.
A power of attorney is writing authorizing another person to do any lawful act instead of another, e.g., to receive debts or dividends, sue a third person, etc. This instrument empowers that other to act in his name exactly as the party giving it himself would do until revocation.
Presumption as to certified copies of foreign judicial records Article
96: Where double certification is obtained as to foreign judicial record
This Article lays down that the court may presume the genuineness and accuracy of any document purporting to be certified copy of any judicial record of any foreign country, provided such copy is duly certified by a representative of the Central Government in that country, to the effect that the copy has been certified in conformity with the rules in force in that country for the certification of copies of judicial records. The presumption is permissive as the words “may presume” indicate and is rebut-able.
Presumption as to books, maps, and charts Article 97: Where any book, map, or chart is published nature of which is public or general interest, court presumes that it is done by the person who claims it. Where book of art or science is published for public consumption, court draws presumption as to its author, publisher, and date of publication is correct as indicated in it. But the rest material is to be proved.
Presumption as to telegraphic message Article 98: Where telegraphic message is transmitted from the telegraphic office, court may (optional) presume its contents are correct because there is no reasonable cause that office of telegraph shall change the contents of the transmission. But name of the transmitter is not presumed as it appears on the face of transmission. Contents of the telegraphic message are presumed correct which were given to telegraphic office. Presumption is not drawn as to its sender. It is to be proved.
The court is forbidden to make any presumption as to the person who transmits telegram. The Article enables the court to accept the hearsay statement as evidence of the identity of the message delivered with that handed in.
This Article raises the presumption that a telegraph message received by addressee from the telegraph office corresponds exactly with the message handed in by the sender at the office of origin. This Article does not allow court to presume as to the persons by whom the message was delivered for transmission.
Presumption as to due execution, etc., of documents not produced Article 99: Where document is executed, court shall presume that it is originally executed according to law and date and signatures are correct. Two competent witnesses have duly verified it.
Where document is within the custody of person other than original, court shall summon him. Where summon is defeated court shall allow the secondary evidence and also presume that the document refused to produce was duly attested, stamped, and executed in the manner prescribed by law.
Presumption as to documents thirty years old Article 100: Normally document produced in court is required its proof. But the ancient document of thirty years needs not to be proved. Its contents are presumed correct but it is optional and not obligatory on court. As is apparent from the words of the Article, the presumption mentioned herein is permissive and not imperative. Thus, if a document is proved to be thirty years old and comes from the proper custody, the court is not bound to presume its genuineness.
Where documents is within legitimate custody where they should be, theirs contents also be presumed correct. Custody of bank is valid where documents are pledged for the purpose of credit facility. Custody of real brother is also real custody where actual person goes to abroad and hands over them to his real brother for it proper use.
Certified copies of documents thirty years old Article 101: Certified copy of the ancient document of thirty years is as admissible as the original is.
Evidence of terms of contracts, grants, and other disposition of property reduced to form of document Article 102: When a transaction has been reduced to writing either by agreement of the parties or by requirement of law, the writing becomes the exclusive memorial thereof, and no evidence shall be given to prove the transaction, except the document itself or secondary evidence of its contents where such evidence is admissible.
Meaning: Where parties agree to reduce into writing the transaction, it must be produced in court as evidence. Oral evidence is not allowed. Principal and same document is requirement of the law for the purpose of evidence. It should be produced in the court.
Types of document: There are two types of documents, i.e., one is registration of, which is compulsory, and second one is optional. One is required to be reduced into writing compulsorily and second one is optional. Transfer of Property, sale, mortgage, and gift should be duly executed, i.e., written, signed, verified, stamped, and attested. Document should not be prior signed but subsequently. Write up on the paper signed before its execution is nullity in the eyes of law. It should be properly executed, as law requires.
Rule: According to the law, where there is written document, it must be produced in court to prove contents. In certain circumstances it cannot be made available to produce in court as evidence. It may be within custody of opponent party, which has refused to produce it. It may either be damaged by fire, earthquake, flood, stolen, washed away by the river. Where damage is caused, it must be proved by right reasons, then court may account for and may permit to adduce secondary evidence.
Where document is within custody of opponent party and it has refused to produce it after summoning of the court, then also court shall allow secondary evidence. Oral evidence can be adduced. Also certified photocopy of public record can be produced.
Types of secondary evidence: There are three types of secondary evidences admissible in place of original document such as:
1. Photocopy: It is made from original document by some mechanical process. Same copy is produced.
2. Made from original: Copy, which is made from the original, can also be produced as secondary evidence.
3. Counterpart of original: Where more documents are prepared and each party executes them and then exchanges the documents bearing the signature of others is called counterpart of the original. It is admissible in evidence as secondary evidence.
4. Oral evidence: Court may also permit oral evidence where document is not available.
Exceptions: As a matter of rule original document is to be produced in court as evidence, but there are some exceptions in the general rule as follows:
1. Public document: Certified copy from public record does not need to be original thus it can be produced without permission of court.
2. Probate: Will can be proved by the probate thus production of probate becomes immaterial.
3. Any document: Any document where there are more than one original documents can be adduced as evidence without permission of court in place of original one.
Exclusion of evidence of oral agreement Article 103: Where any document required by law should be written, it must be written and it shall exclude the oral evidence. Only written document must be produced before court to prove its contents.
There are some exceptions to this general rule such as:
1. Any act of fraud or illegality: Where any fraud or illegality is committed in the execution of document can be proved by oral evidence.
2. Separate connected agreement: Where document is silent on any separate connected agreement, can be proved by oral evidence. It should not be irrelevant to the document.
3. Condition precedent on execution: Where any condition is attached separately to execute the document, can be proved orally.
4. Distinct subsequent condition: Where any subsequent condition is imposed to alter the agreement orally, can be proved by oral evidence. This subsequent condition is not applicable where it is required by law to be written.
5. Implied provision of usage or custom: Where any custom or usage is not expressly provided under contract and is impliedly considered being part of contract can be proved orally provided it is not inconsistent with the terms of contract.
6. Language of the document: If a document is doubtful in its meaning, evidence of surrounding circumstances is receivable for the purpose of throwing light on its interpretation. Such evidence is admitted on the principle that a person, who has to interpret a document, ought to be put into the same position, as the person whose language is being interpreted.
Exclusion of evidence against application of document to existing facts Article 104: Where the language of document is patent and plain and not latent, oral evidence shall be disallowed to show different intention.
Where no doubt arises from the plain language of document, otherwise evidence is wholly inadmissible to show different intention was meant.
For instance, A agrees to sell B white horse, and actually A is in possession of white horse, here different intention shall not be allowed as to red horse was meant.
Evidence as to document unmeaning in reference to existing facts Article 105: Where the language of deed is plain but doubt arises at to its meaning, then evidence can be given to clarify its real sense.
For example, A agrees to sell land to B situated in
Evidence as to application of language, which can apply to one only of several persons Article 106: Where the language of deed is not accurately fits to a person or some other fact, evidence can be given to fix the meaning of the document.
For instance, A sells to B one Pentium – III Computer, but A possesses two such computers, thus evidence can be adduced as to show whether which computer was meant to sell.
Evidence as to application of language to one of two sets of facts to neither or which the whole correctly applies Article 107: Where language of the deed could not mention the application of contract on one set of fact and applies partly on two sets, then evidence can be given to fix the application of agreement.
For example, A agrees to sell to B, “my land at X in the occupation of Y”. A has land at X, but not in the occupation of Y, and he has land in the occupation of Y, but it is not at X. Evidence may be given of facts showing which he meant to sell.
Evidence as to meaning of illegible characters, etc. Article 108: Evidence as to the meaning of illegible characters, e.g., shorthand or writer’s notes or of foreign, obsolete, technical, local, and provincial expressions and of words used in a peculiar sense may be given.
As a general rule, in constructing written instruments, the grammatical and ordinary sense of the word is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in which case the ordinary and grammatical sense may be modified so as to avoid that absurdity or inconsistency.
Who may give evidence of agreement varying terms of document Article 109: Where right of third party suffers from the oral agreement of two parties apart from whatever is committed in a deed, he may give evidence to prove the fact upto the extent of his suffering.
For example, A and B make an agreement to sell wheat. An oral agreement is made for one moth’s credit. C can give evidence where his interest suffers from the agreement of A and B.
Facts judicially noticeable need not be proved Article 111: Judicial notice is the cognizance taken by the court itself of certain matters which are so notorious or clearly established that evidence of their existence is deemed unnecessary. Judicial notice is taken of such facts, the notoriety (fame, repute) or regular occurrence of which in the ordinary court of nature or business had made them familiar to the Judge. And if such facts form part of the litigant’s case, he is excused from proving them or in other words, the court will take judicial notice or cognizance of their existence.
When the case comes to court for
its determination, it needs proof. It must be proved. It cannot be decided
until it is proved. There is no need to prove the issues on which court is
required to take judicial notice, e.g., laws of
Facts of which court must take judicial notice Article 112: This Article contains the long list of laws, which are judicially noticeable by court itself.
Facts admitted need not be proved Article 113: In civil cases if party admits his case against whom, case to be proved, there shall be no need to prove it by evidence. In civil litigation written statement is supplied to the court which may include admissions on certain facts which needs no proof.
Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken as admitted.
Estoppel Article 114: The word “estoppel” means the rule of evidence or doctrine of law which precludes a person from denying the truth of some statement formerly made by him, or the existence of facts which he has by words or conduct led others to believe in. If a person by a representation induces another to change his position on the faith of it, he cannot afterwards deny the truth of his representation.
There are three ingredients of estoppel such as:
1. Misrepresentation, e.g., the material in contract is trust worthy but actually it is not as such.
2. Other party believes him, e.g., other party makes an agreement believing on the statement of promisor which actually is misrepresentation.
3. Acts upon it, e.g., party gives to others token money to form contract.
Later the person who misrepresents alienates the property to its legatees by way of inheritance; he can be stopped to do so. He cannot say that property did not belong to me. He shall be estoppel to do so.
Proceedings against misrepresentation can also be lodged either in civil or criminal courts. For the purpose of claiming damages, proceedings can be initiated in civil court, but for the purpose of punishment proceedings can be get started in criminal court.
Where no person believes in misrepresentation thus does not act upon it, it does not binding on party to estop other party.
Estoppel of tenant and of licensee of person in possession Article 115: Where tenant gets the possession of property with the permission of its ostensible owner, tenant cannot, later on, deny the truth of being his ownership. Tenant shall be estopped to deny the truth.
When the relation of landlord and tenant is once established, the estoppel will attach to all who may succeed the tenant, immediately or remotely.
Where one tenant comes under licence of the owner, his successor cannot deny the truth of ownership of the landlord.
Estoppel of acceptor of bill of exchange, bailee, or licensee Article 116: This Article deals with three more estoppels by agreement. These are:
1. The acceptor of a Bill of Exchange is precluded from denying the authority of the drawer to draw the bill or endorses.
2. A bailee is estopped from denying that his bailor had, as the time the bailment was made authority to make it.
3. A licensee is estopped from denying the title of the licensor to grant the license.
1. Meaning of estoppel: s
2. Principles: s
a) Misrepresentation: s
b) Act upon it: s
c) Immediate cause: s
d) Unawareness of real facts: s
e) Belief of other party: s
f) Intention: To make belief.
3. Objects: s
a) To prevent fraud: s
b) To prevent from litigation: s
c) For speedy justice: s
4. Where no estoppel: s
a) In criminal cases: s
b) In parliamentary laws: s
c) Opinion: s
d) Corporation/companies: s
5. How estoppel: s
a) By Court: s
b) By deed: s
c) By conduct: s
Burden of proof Article 117: When any party wants to take decision in his favour requires proving facts in issue in his favour. Mere presentation of suit or case in court is insufficient to get remedy. Material evidence is required to prove the facts in issue.
For example, a person has acquired property can prove his ownership either by way of inheritance or sale deed.
One who imposes allegations, i.e., plaintiff or prosecution must prove his suit or case. One who alleges must prove his claim.
Who prays to impose death penalty to murderer must prove the fact of murder committed by such alleged person. Where there is no murder, there is no death penalty and in the same manner where there is murder but there is no proof against accused, there is no death penalty. Facts alleged must support the commission of offence.
In civil litigation, plaintiff and in criminal trial, prosecutor, has to prove facts through evidence so that court may reach on conclusion beyond any reasonable doubt in their favour for judgement.
On whom burden of proof lies Article 118: Article 118 of Qanun-e-Shahdat Order gives test whether who has to prove the case. Where both sides fail to adduce evidence in their favour, then party who alleges shall be responsible to give evidence. Where neither plaintiff nor defendant may prove their case then one who fails shall prove the facts, e.g., plaintiff or prosecutor.
As a matter of principle, originator is bound by law to adduce evidence to prove facts in issue. This Article lays down a test for ascertaining on which side the burden of proof lies. The Article makes it clear that the initial onus is on the plaintiff. If he discharges that onus and makes out a case, which entitles him to relief, the onus shifts on to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
Burden of proof as to particular fact Article 119: This Article deals with the plea of Alibi (proof of absence). Where in criminal case, a murder takes place during of period of imprisonment of alleged accused, such accused can take plea of alibi being not present at the seen of occurrence. Burden of proof lies on the shoulders who alleges the fact of being absent, i.e., plea of alibi.
Where presence of accused is impossible, case cannot be made out thus he is acquitted. Accused has to prove whether it was impossible for him to keep his presence at the place of alleged occurrence. Mere plea of alibi is insufficient, but strong proof is required to belief of court.
As a matter of principle anybody is presumed before court being innocent unless his guilt is proved beyond any reasonable doubt. Where stolen goods are recovered from the custody of someone, it is presumed either he has stolen or received stolen goods. He is required to prove his innocence.
Condition for plea of alibi under Articles of 24(2) and 119:
1. Must be criminal charge:
2. Impossible to reach:
3. Time distance:
4. Presence out of place:
5. Only in criminal cases:
Burden of proving fact to be proved to make evidence admissible Article 120: Where any fact is dependent on other fact, that fact must be proved before proving the actual fact.
For example, where anybody wants to adduce secondary evidence has to prove the loss of primary evidence and not available. Where dying declaration has to be proved, firstly death of the person has to be proved. In short, proof of dependent fact opens the door for court to believe in the actual fact.
Value of dying declaration – whether conviction can be based on it:
2. Essentials of admittance:
a) Death of maker:
b) Recording in its actual words:
c) Circumstances of death: That must be direct consequences of death.
d) Death itself is fact in issue:
e) Declaration must be complete:
f) Must be corroborated:
g) Must be taken as a whole:
h) Must be complete:
i) Must be clear:
3. Modes of recording dying declaration:
4. Evidentiary value: It is as good as actual evidence is.
Burden of proving that case of accused comes within exceptions Article 121: Who alleges the commission of crime under grave and sudden provocation must prove the existence of such circumstances.
Where any person alleges commission of offence comes under exceptions provided under Pakistan Penal Code and any other special law, he has to prove that his act comes under such exceptions.
Burden of proving fact especially within knowledge Article 122: When a person does any act under special knowledge, he has to prove such fact. This is exception to this general rule that burden of proof lies on the party who asserts the affirmative of the issue.
Where a passenger is charged travelling without ticket in railway, he has to prove whether he had bought the ticket.
Burden of proving death of person known to have been alive within thirty years Article 123: A person who has been seen within last thirty years alive is presumed alive unless it is proved that he has been died. If his death is alleged, it requires its proof other court shall draw presumption that he is alive.
Burden of proving that person is alive who has not been heard of for seven years Article 124: This Article is related with the special knowledge of relatives or some special persons. Where a person is not seen or heard within last seven years by the blood relatives or friends, it is presumed that he has been died. Otherwise his alive is to be proved.
Burden of proof of as to relationship in the cases of partners, landlord and tenant, principal and agent, Article 125: Where existence of some special relationships is proved, presumption goes in its favour, otherwise their non-existence is to be proved. And burden of proof lies on the person who alleges it.
Burden of proof as to ownership Article 126: Person who has possession of anything is presumed its ownership. One who denies such ownership has to prove such fact.
Proof of good faith in transaction where one party is in relation of active confidence Article 127: There are always two parties in agreement. Party who has upper hand is required to prove the fact alleged against him. This is depart from general rule of evidence. This comes only in fiduciary relationship.
Birth during marriage conclusive proof of legitimacy Article 128: When the child is born after six lunar (of the moon) months while the wedlock and husband does not denounce his legitimacy, it shall be presumed that such child is legitimate.
There are two types of presumptions, i.e., presumption of law (ir-rebut-able) and fact (rebut-able).
Under the old law of Evidence, where child was born after marriage, even after a week, was presumed legitimate provided husband does not denounce his legitimacy. This was rebut-able presumption of fact.
According to current Qanun-e-Shahdat Order, a child is presumed legitimate if he borns at least after six month of the solemnization of marriage provided husband does not denounce his legitimacy. This is also rebut-able presumption fact.
Where child is born after dissolution of marriage within two years provided mother remains unmarried, it shall be presumed that such child is legitimate.
Pregnancy can be determined within a month when husband dies; therefore, question as to legitimacy does not arise.
Where husband disowns the legitimacy of child, then it shall be required to prove legitimacy of child.
Court may presume existence of certain facts Article 129: In certain cases, there is no need of evidence and court draws it opinion automatically. In such cases court draw adverse inference.
Where goods are recovered from possession of one person soon after theft, court shall presume that he either has stolen goods or received stolen property.
Approver is unworthy of credit unless his evidence is corroborated from some independent sources.
Judge to decide as to admissibility of evidence Article 131: Anything, which is to be proved, must be relevant. Anything, which can effect the proceeding, is relevant. Judge can ask question as to get satisfaction whether fact on which evidence is to be adduced is relevant. When Judge satisfies, then he gives permission for the evidence.
Where one evidence is dependent on another fact or document, that must be proved first before going into further evidence. Where original document is not available to produce in court in evidence to prove the fact, party is obliged to satisfy court as to its damage. Where court is satisfied that original document is not available due to reasons certain, then courts permit secondary evidence.
Examination-in-chief, etc., Article 132: This Article defines the three important terms of evidence such as:
Examination-in-chief: This is the party who produces the witnesses in court and asks questions from her witnesses.
Cross-examination: It is the opposite party who asks questions from the witnesses of adverse party. It must be directly relevant to the case.
Re-examination: It is last possibly order of examination of witnesses by its own party with the permission of court.
Cross-examination of person called to produce a document Article 134: Where person is not called as witness, he cannot be cross-examined. Mere courier who produces the document in court is not witness. However, if he is called as witness, then he can be cross-examined.
Where a party examined no witnesses but only certain documents were tendered and exhibited without any objection, question of cross-examination would not arise.
Witness to character Article 135: Character is immaterial in civil litigations but it is so much important in criminal cases.
The use of character evidence is to assist the court in estimating the value of the evidence brought against the accused. It is observed in a case that “a man is not born a knave; there must be time to make him so; nor is he presently discovered after he becomes one. A man may be reputed an able man this year, and yet be a beggar the next; it is a misfortune that happens to many men, his former reputation will signify nothing to him upon this occasion.”
Leading questions Article 136: This Article merely defines the leading question. Leading question is a question under which answer of the question is provided. Party putting questions suggests answers.
Person to whom questions are asked understands easily that what answer he has to give. Normally form of leading question is objective, whether negative or affirmative.
When leading questions must not be asked Article 137: Party is not allowed to ask leading questions either in examination or re-examination.
Examples of leading questions: Following are some examples of leading questions:
1. Did you see A strike B?
2. You were present at the time of occurrence?
3. Murder was taken place with pistol?
4. Resistance was not made?
Only court can permit to ask leading questions. Party cannot cross-examine the witnesses who produce him except in a single case where court declares witnesses as hostile under Article 150.
When leading questions may be asked Article 138: Only adverse party can put leading questions during cross-examination.
Under Article 150, examination-in-chief can ask leading question where court declares a witness hostile.
Object of leading questions: The reason why leading questions are allowed to be put to an adverse witness in cross examination is that the purpose of a cross examination being to test the accuracy, credibility, and general value of the evidence given, and to fit the facts already stated by the witness. It sometimes becomes necessary for a part to put leading questions in order to elicit facts in support of his case, even though the facts so elicited my be entirely unconnected with facts testified to in an examination in chief. Where a general order is made that no leading question shall be allowed in cross-examination, the order is illegal and vitiates the trial.
Evidence as to matters in writing Article 139: Oral evidence can be give as to the matters who were written. Where adverse party objects, then original documents shall be produced in court to prove the contents of the oral evidence.
Cross-examination as to previous statements to writing Article 140: Previous statements in criminal cases such as First Information Report or statements u/s 161 of Code of Criminal Procedure can be cross examined. Police records statement u/s 161, which can be given to the advocate of accused for cross-examination. These statements can be proved false.
Questions lawful in cross examination Article 141: When evidence is given then person is cross-examined. Only relevant questions are allowed to ask. Character can be impeached. Standard of life, income, or character can be discussed.
This is also provided under Article 151. It objects to find out truthfulness, accuracy, source of knowledge, and his memory. What is his social status? Whether he sell heroine or wine.
When witness to be compelled to answer Article 142: Witness can be compelled to answer the questions, which directly criminate him. Witness is protected under Article 15 that he shall not be arrested or criminated on the ground of answer in evidence.
Court to decide when question shall be asked and when witness compelled to answer Article 143: Where court thinks fit to compel a witness to give answer compulsorily may compel witness to give answer. On the base of his evidence, witness cannot be arrested or civil or criminal proceedings cannot be started. He is protected from any criminate. Where court feels better that answering of the questions is not directly related to proceedings or unnecessarily impeaches the character of the witness, may warn witness not to answer the questions.
Court has to regard the following things during cross-examination:
1. Where questioning does not effect the decision of court, court shall no interfere in examination, provided questions are proper.
2. Where questions are irrelevant, court may want witness not to answer the questions. Court may also disallow such type of questions.
3. Where stock witness is proved who are readily available to testify the facts, court may refuse their evidence.
4. Litigation must be concluded. Where question either is improper or too remote, court may disallow.
Question not to be asked without reasonable grounds Article 144: Where attack is made on credit, question cannot be asked without reasonable ground.
All questions should be relevant and merely insult is not allowed. Credibility can be attacked but on reasonable grounds.
Procedure of court in case of question being asked without reasonable grounds Article 145: Although attack on credit or character is allowed in examination but it must bear reasonable grounds and it should not be baseless.
Where any advocate asks questions having no proper grounds or merely based on insult, court may report of such matter to High Court or any other authority to which advocate is subject, i.e., Punjab Bar Council or Pakistan Bar Council.
Indecent and scandalous question Article 146: Court monitors the proceedings. Indecent and scandalous question are not allowed. Where they are put, court can forbid putting them.
Procedure of court in cases of defamation, libel and slander Article 147: Where proceedings are under litigation or trial as to the defamation either libel or slander, court shall not allow impeachment of character unless two things are determined first, that is:
1. Whether defamation has been committed.
2. Whether defamation committed is true.
Questions should not be insulting type. Only relevant questions are allowed.
Questions intended to insult or annoy Article 148: Court has power to forbid to ask any question which either is irrelevant and which unnecessarily injures the character of person.
Exclusion of evidence to contradict answers to questions testing veracity Article 149: When a witness deposes to facts, which are relevant, evidence maybe given in contradiction of what he has stated. But when what he deposes to effects only his credit, no evidence to contradict him can be led for the sole purpose of shaking his credit by injuring his character. However, a witness answering falsely can be proceeded against for giving false evidence under S. 193 of the Pakistan Penal Code.
The object of the Article is to prevent trials being spun out (continued) to an unreasonable length.
Checks on unfettered powers of cross examination under Articles 143 to 149:
1. Court can compel:
2. Only on reasonable grounds:
3. Report to High Court:
4. Cancellation of license:
5. Forbid to ask question:
6. Forbid to give answer:
7. Record of finding where defamation:
8. Insulting question are not allowed:
9. Annoying not allowed:
10. Legitimate limits:
11. Stop cross examination:
12. Stop repetition:
13. Stop long question:
14. Privileged questions:
Question by party to his own witness Article 150: Where a party calling a witness and examining him discovers that he is either hostile or unwilling to answer questions put to him, he can obtain permission of the court to put question to him by way of cross examination.
Object to bring witness in court is to prove vindication of the party and where witness deviates and makes collusion with adverse party, party can take plea of its hostility. Only court may declare witness of examination-in-chief as hostile.
Hostile witness: A “hostile witness” is one who from the manner in which he gives evidence shows he is not desirous of tellingly the truth to the court. A witness who is unfavorable is not necessarily hostile. A witness who is gained over by the opposite party is a hostile witness.
Impeaching credit of witness Article 151: This Article only prescribes that as to how credit of a witness can be impeached. Following are the rules:
1. Witnesses: Witnesses may be produced to impeach the credit of the witness under proceedings.
2. Bribe: By proof of bribe or other corrupt inducement.
3. Contradiction of statements: By contradicting the statements particularly u/s 161 of the Code of Criminal Procedure under which police records statements of the witnesses.
4. General immoral character: By general immoral character, character of the witness can be proved unworthy or credit.
Questions tending to corroborate evidence of relevant fact admissible Article 152: Person who is giving evidence of corroboration can be asked question which are though not relevant but can assist to reach on truth. Questions can be asked about the extra incidents, e.g., stay in hotel before committing robbery or murder, repair of vehicle before dacoity etc.
Manager of the hotel can give evidence that accused stayed at his hotel before commission of the offence and he took meal. Accused was suspicious at that time.
Owner of type shop can give evidence that he did repair puncture before commission of the offence and accused was suspicious at that time.
These facts are though irrelevant but can assist court to conclude the proceedings.
Former statements of witness may be proved to corroborate latter testimony as to same fact Article 153: Where witnesses have given the statements in any former incident to the authority competent, can be used again to prove fact.
What matters may be proved in connection with proved statement relevant under Article 46 & 47, Article 154: All matters are proved where any statement is proved under Article 46 & 47 which is related with hearsay evidence.
Refreshing memory Article 155: It is permissible under Qanun-e-Shahdat Order that written statement can refresh memory. Permission of court is obligatory. Witness can refresh his memory before giving evidence. Statement must be written. Where articles are stolen and details of them is written soon after occurrence is admissible for refreshing the memory. Witness may say let me refresh memory before giving evidence. It is presumed that he has written the detail soon after occurrence and it is correct.
He also may take plea that original document is out of my reach at the moment because the person occupying such statement has left the country.
Expert may also consult his statement in writing to refresh memory before giving evidence.
Testimony to facts stated in document mentioned in Article 155, Article 156: Where any expert has forgotten his write up, he can refresh his memory.
Right of adverse party as to writing used to refresh memory Article 157: When party refreshes memory from document, adverse party may inspect such document for the purposes of cross-examination.
It can be objected whether detail was written, document was written one year before, from where document was taken, from where paper was obtained, or whether removed from copy. What was the writing medium whether ball pen or fountain pen. What was the colour of ink whether black or red. Whether paper was lined or not.
1. What is refresh of memory: s
2. How refresh memory: s
a) By reference of documents: s
b) By any writing: s
c) Copy: s
d) Counterpart: s
3. Who can refresh memory: s
4. Right of adverse party: s
a) As production of document: s
b) To inspect document: s
c) Cross examination: s
5. How documents examination – questions: s
a) When document was written: s
b) From where paper was taken: s
c) Whether paper was lined: s
d) What was time of recording: s
e) Where was recording with respect of place: s
f) Medium of recording: Whether ball pen was used.
g) Colour of ink: s
Production of documents Article 158: Where court orders for the production of document in court in evidence, it must be produced in court. Secret of state is not ground to disobey orders of the court. Court has to decide all the objections.
Translator is also under obligation to keep the contents of the document hidden so translated if they relate to state secret.
Giving, as evidence, of document called for and produced on notice Article 159: Where a party to a suit gives notice to the other party to produce a document, and when produced, he inspects the same, he is bound to give it as evidence if the other party requires him to do so.
Using as evidence, of document production of which was refused on notice Article 160: Where party fails to produce document on the notice of court, later on such document cannot be produced. Its subsequent production is subject to the permission of either court or party. Secondary evidence when admitted it excludes the production of primary evidence. This is departing of general rule.
Judge’s power to put questions or orders production Article 161: During the trial Judge can put questions at to ascertain truth. Party cannot refuse to answer the question of Judge. Cross-examination is subject to the permission of Court. Form to put question is right of Court. Court may at any time put question. Court may put question to any witness. Court may also put question about any fact.
Limitation of Court: Court cannot ask privileged questions. Questions bearing insult of party or witness cannot be asked. Legal requirement cannot be forgone. Judge cannot bypass legal requirements.
No new trial for improper admission or rejection of evidence Article 162: Where Court commits any mistake in trial or litigation on record, it cannot be made ground for new trial provided it does not effect the decision of Court. Where mistake is removed without effecting the Court decision or its non-removal does not effect the decision, it shall not be made ground for new trial.
Judgement based on improper evidence (which does not fulfill the requirement of court) cannot be retried for new judgement if it cannot be changed. But if judgement can be changed then case can be retried.
1. Base of decision:
b) Proper evidence:
c) Proper trial:
2. Where no proper evidence is admitted or rejected: Following the law for the retrial of denial of new trial:
a) No base of retrial:
b) Where is new trial:
i) If it effects decision:
ii) Where mistake is substantive:
iii) Where removal of mistake effects charges:
Acceptance or denial of claim on oath Article 163: This Article is applicable only in civil suits. Where plaintiff takes oath in support of his claim, Court may call defendant to deny the facts. Where defendant fails to deny the fact, he is declared guilty. Decision is given against defendant.
It is not applicable in Huddod or criminal cases.
Production of evidence that has become available because of modern devices, etc. Article 164: Court may consider modern devices in evidence.
Order to override other laws Article 165: This law has superiority on all the laws enforced for the time being.
Repeal Article 166: The Evidence Act, 1872 (I of 1872) is hereby repealed.
Kinds of evidences: Following are the kinds:
2. Extra judicial: Intermediaries make it.
Identification parade: Following are its rules:
2. When conducted:
a) Where person is unknown:
c) Only in presence of Magistrate:
d) In jail only:
a) Presence of Magistrate:
b) More than one accused:
c) Similar face:
d) One witness in one time:
e) Part of offence is stated:
f) Writing by Magistrate:
g) Identification of offender:
a) No value:
b) Corroboration is required:
Difference between admission and confession: Following are the differences:
i) Admission: It is used generally in civil cases.
ii) Confession: This term is specifically used in criminal cases.
b) In all cases:
i) Admission: It is not confession.
ii) Confession: But it is admission in some cases particularly where confession is retracted.
i) Admission: It admits rights of others.
ii) Confession: It is admission of guilt of self.
d) Conclusive proof:
i) Admission: It is not conclusive proof.
ii) Confession: It is conclusive proof as far as law is concerned on confession.
i) Admission: It may not be voluntary.
ii) Confession: It is always voluntary. Where is coercion, it is not accepted.
f) Base of conviction:
i) Admission: It is not base of conviction.
ii) Confession: Law on confession is very clear and punishment can be imposed but it must be corroborated from some independent sources according to unanimous decisions of higher courts.
g) Used under exception:
i) Admission: It can be used under Article 34.
ii) Confession: It is used only its maker/confessor.
h) Against others:
i) Admission: It cannot be used against other.
ii) Confession: Yes it can be used against other as corroboratory evidence.
i) Admission: Law of estoppel is applicable in admission.
ii) Confession: Since the question of life and death is involved therefore it can be retracted.
j) Before police:
i) Admission: Can be made before Police Officer.
ii) Confession: Confession made before Police Officer is not acceptable at all unless some weapon of offence is discovered.
k) By whom:
i) Admission: It can be made some agent also.
ii) Confession: Only accused can make confession.
l) Value in evidence:
i) Admission: It is not strong evidence.
ii) Confession: Yes, it is strong evidence against its maker.
i) Admission: It is broader term.
ii) Confession: It is narrower term.
What is difference between Article 16 and 129(b):
1. Who is accomplice:
2. Competency as witness under Article 16:
3. Unworthy of credit under Article 129(b):
4. Conviction based upon evidence of accomplice:
5. Corroboration is required: It is decision of higher courts.
6. Why corroboration is required:
a) Shifting of guilt:
c) Disregard of oath:
d) Possibility of involvement of innocent:
e) Undue influence of prosecution:
7. In hudood cases:
a) No evidence of accomplice:
b) No conviction:
c) No corroboration:
Where non-relevancy becomes relevancy under Article 24:
1. Facts which determine damages:
2. Where custom is in question: Deed in which rights are created.
3. Particular instance in which right is claimed: Like mortgage.
4. Facts showing existence state of mine: Knowledge, good faith, bas faith, negligence, ill will are instances.
5. Act forming part of series: Purchase of car for accident, chasing of victim, accident, showing otherwise etc.
6. Existence of course of business: Where letter is posted in post box during working hours shall be presumed that is has be posted and reached to the addressee because it is not reached back.
7. Please of alibi:
Ingredients of valid custom: Following are the ingredients of valid custom:
2. Continue and uniform:
Relevant judgement under Articles 54 to 58: Following the judgement which can be used as convulsive proof in another case:
1. Double jeopardy u/s 403 CrPC:
2. Judgement in rem under Article 55:
3. Decree of probate:
7. Legal character:
a) Which is obtained through fraud:
c) Want of jurisdiction:
All relevant facts are not admissible but all admissible facts are relevant:
1. Repayment of loan by cheque: Where property is purchased by the amount of cheque, can be produced as evidence of repayment of loan.
2. Murder: Stay in hotel before commission of offence of murder can be produced as evidence where Court admits it.
3. Opinion of expert:
a) Matter of transaction:
b) Constitution of crime:
c) Purchase of offence weapon:
d) Purchase of vehicle for accident:
e) Direct effect:
g) Character in criminal cases:
h) Amount of damages:
Modes of proving handwriting under Articles 61, 78, 84, and 164:
1. By writing himself:
2. By calling witnesses:
3. By expert:
4. By comparison:
5. By acquittance:
6. By self harming admission:
7. By statement of deceased:
8. By circumstantial evidence:
a) Thirty years’ old document:
b) Thirty years’ attested copy:
c) Official custody:
d) Legitimate custody:
9. By modern devices:
10. Execution of document:
11. Where opposite party refused despite order of Court: