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Updated: Thursday January 14, 2010/AlKhamis Muharram 29,

1431/Bruhaspathivara Pausa 24, 1931, at 07:12:05 PM

Course Contents:

1. The Qanun-e-Shahadat Order, 1984 (X of 1984) (Evidence Law) as


amended upto date.

Books Recommended:

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.

4. Law of Evidence in Pakistan (old) by Mazhar Hasan Nizamy and A. G.


Chaudhary.

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 persons
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 (PJQ iBI) lies on the shoulders who alleges
(claims, ascertains). Burden or onus of proof shifts to him who fails to prove
the facts in issue.

In criminal cases prosecution has to prove the fact in issue because she takes
in court case and alleges the guilt of accused. In civil cases person who
alleges has to prove it. Prosecution has to prove the claim by evidence, which
is beyond the reasonable doubt. In civil matters suit is adjudged with
principle of preponderance (majority, supremacy, dominance).

Witness who testifies the facts in issue is examined and his evidence does not
rest accepted without preponderance. Court does not rely on evidence
without cross-examination. Leading questions (pursuance during the
proceeding) are not permissible. Court also examines the credibility of
witness. Arguments and cross-examinations are the tools to crystallize its
truth. Sometimes witness is called again to testify the truth if the document
misplaces.

Application of this law: This Act is applicable to whole of Pakistan on all


judicial proceedings. Where evidence is required this law applies. This law is
applicable for such forums:

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 (). 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 Kings 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 (AjU efY). Hudood crimes
are those, which are, declared crimes in Quran expressly and their
punishment has been fixed under Quran. They are not compound-able. They
are seven in number including theft, alcohol consumption, adultery, dacoity,
sedition, slander of woman (defamation), and apostasy. Accomplice is not
competent witness in Huddon crimes. Only Muslim adult male witnesses,
about whom the Court is satisfied, having regard to the requirement of
tazkiyah al-shuhood (erA lM), that they are truthful persons and abstain
from major sins (Kabir jJ), give evidence of the accused having committed
the offence liable to Hadd.

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 neighbors shed was essential to
the theft of the cart and bulls of the owner, so that one could not be done
without the other. And therefore, the two acts, i.e., house breaking and
removal of the cart and the bulls formed parts of the same transactions.

In a house breaking, the person who cuts the glass of the door or window
either on spot or before or later, is relevant fact in the case of house
breaking.

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 tonga,


from the place where alleged offence was committed, to the principal town of
the district. A European friend drove with her in the tonga and a mounted
policeman rode in front. In the course of journey the policeman left
the tonga and went to a slowly along the road for some miles without any
escort. In the absence of the policeman, the accused made a communication
to her friend with reference to the alleged offence. At the trial it was proposed
to ask what the accused had said, on the ground that she was not then in
custody, and that this Article did not apply. It was held that, notwithstanding
the temporary absence of the policeman, the accused was still in custody,
and the question could not be allowed while the accused was in lockup of the
Magistrate under trial. Magistrate sent him at hospital for treatment. Two
policemen, who waited outside on the verandah of the hospital, took him
from the lockup to the dispensary. During his examination inside the
dispensary by the doctor, the accused made a confession of his guilt to
another patient who happened to be there within the hearing of the doctor. It
was held that the confession was inadmissible, because the accused, who
was in police custody upto his arrival at the hospital, remained in that
custody even though the policemen were standing outside on the verandah.

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 (OB), 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 (eBrA eBq): 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 (eBrA eBq). 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 (eBrA eBq)


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 corporations 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 sons 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 of
Will. Tombstone (memorial, headstone, or piece of stone fixed on grave
(iAl `)) can also be determinant factor. Family portrait in which all
relatives are shown is also proof. It should be noted that this writing must
be made before the dispute is arisen. Fabrication can be put into writing
when dispute arises, therefore, statement produced in court should be
prior written.

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 As ancestors, a mortgage of the fishery by As father, a
subsequent grant of the fishery by As father, irreconcilable with the
mortgage, particular instances in which
As father exercised the right, or in which the exercise of the right was
stopped by As 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
remwithin 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 principals default.

If A gets a decree for the possession of land against X and Y, and Xs son
murders A in consequence thereof, the existence of the judgement is relevant
as showing the motive for the murder.

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 partys opinion Article 59: There are certain things
which alone court cannot ascertain. Court needs help of expertise. Court may
need expert opinion in following cases:

1. Foreign law. 2. Science.

3. Art. 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 experts opinion.

Illustrations: The question is, whether the death of A was caused by poison.
The opinion of experts as to the symptoms produced by the poison by
which A is supposed to have died, are relevant.

The question is whether A, at the time of doing a certain act, was, by reason
of unsoundness of mind, incapable of knowing the nature of the act, or that
he was doing what was either wrong or contrary to Law. The opinion of
experts upto the question whether the symptoms exhibited by A commonly
show unsoundness of mind, and whether such unsoundness of mind usually
renders persons incapable of knowing the nature of the acts which they do, or
of knowing that what they do is either wrong or contrary to Law, are relevant.

The question is, whether a certain 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 Pakistan whereas general custom means particular class of person.

The right of the dwellers of a particular village to use the water of a particular
Well is a general right within the meaning of this Article.

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 sons 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 partys 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 Oxford dictionary the term


character means, collective peculiarities or persons mental and moral
qualities.

Definition of character: According to Websters 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 plaintiffs
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 fathers 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 (OJ) 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
opponents possession but of loss.

6. Person, out of the reach or not subject of the court: Where the
original is in the possession or power of a person outside the jurisdiction of
the court, no notice to produce is necessary.

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:

6. Counterpart:

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 United
Kingdom. It lays down that an admission of execution of the document by the
party shall be sufficient proof of the execution of the document even thought
the document is one which by law requires to be attested.

Where the witness is not available who had attested the document at the
time of its execution, it shall be proved either he has been died or gone
elsewhere not possible to call.

Where the executant of, and all the marginal witnesses to, a mortgage deed
was deed, it was held that the mortgage deed was sufficiently proved by
evidence that the signature of the mortgagor was in his own handwriting.
Also that the signatures of two of the marginal witnesses, were in their
handwriting.

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. Sale agreement in which at least two witnesses are
necessary and registry in which also two witnesses are necessary itself is
proof. Where legal requirements have been fulfilled, no extra effort is required
to prove the document.

Where it is proved that the document was executed on gunpoint or the white
paper was got signed and was not executed in accordance to law shall not be
proof of its truth.

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.

3. Act or record of the public officers, legislative, judicial and executive of


any part of Pakistan or of a foreign country.

4. Public records kept in Pakistan of private documents such as registries,


Wills, etc.

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.

6. Any documents which maintains public servant under any law


of Pakistan such as mortgage deed register according to law is a public
document under this clause.

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
attested by Pakistan Counsel is presumed correct. It is mandatory and not
optional. The authority of that relevant country firstly attests copy of the
foreign law and then by the Pakistan Counsel.

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.

Sale, transfer, and mortgage etc. are the transactions write up of which is
compulsory by law. Without the attestation by two competent witnesses they
cannot be got registered.

Meaning: Where parties agree to reduce into writing the transaction, it must
be produced in court as evidence. Oral evidence is not allowed. Principal and
same document is requirement of the law for the purpose of evidence. It
should be produced in the court.

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 Lahore but A has not land
in Lahore but in Shahdara Town, possession of which B has taken since the
execution of deed.

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
writers 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 moths 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 litigants case, he is excused from proving them or in other words, the
court will take judicial notice or cognizance of their existence.

Laws of Pakistan or proceedings of parliament etc. need not to be proved.


Court itself is required to take their cognizance.

When the case comes to court for its determination, it needs proof. It must be
proved. It cannot be decided until it is proved. There is no need to prove the
issues on which court is required to take judicial notice, e.g., laws of Pakistan,
flags of countries etc.

Facts of which court must take judicial notice Article 112: This Article
contains the long list of laws, which are judicially noticeable by court itself.
Facts admitted need not be proved Article 113: In civil cases if party
admits his case against whom, case to be proved, there shall be no need to
prove it by evidence. In civil litigation written statement is supplied to the
court which may include admissions on certain facts which needs no proof.

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:

1. Definition:

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:

a) Written:

b) Oral:
c) Signals:

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.

Judges 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:

a) Evidence:

b) Proper evidence:

c) Proper trial:

d) Examination:

e) Jurisdiction:

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:

1. Judicial:
2. Extra judicial: Intermediaries make it.

3. Real:

4. Personal:

5. Primary:

6. Secondary:

7. Direct:

8. Circumstantial:

9. Oral:

10. Documentary:

11. Hearsay:

Identification parade: Following are its rules:

1. Definition:

2. When conducted:

a) Where person is unknown:

b) Immediate:

c) Only in presence of Magistrate:

d) In jail only:

3. Conditions:

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:

4. Value:
a) No value:

b) Corroboration is required:

Difference between admission and confession: Following are the


differences:

1. Definitions:

a) Admission:

b) Confession:

2. Distinctions:

a) Cases:

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.

c) Result:

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.

e) Recording:

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) Estoppel:

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.

m) Term:

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:

b) Pardon:

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:

1. Ancient:
2. Continue and uniform:

3. Reasonableness:

4. Certain:

5. Compulsory:

6. Peaceable:

7. Consistent:

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:

4. Matrimonial:

5. Admiralty:

6. Insolvency:

7. Legal character:

8. Exceptions:

a) Which is obtained through fraud:

b) Adverse:

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:

4. Conditions:

a) Matter of transaction:
b) Constitution of crime:

c) Purchase of offence weapon:

d) Purchase of vehicle for accident:

e) Direct effect:

f) Conspiracy:

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:

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Qanoon-e-Shahadat top 20 questions

1) evidence+ kinds+ fact in issue and revelent facts?

2) who is competent to testify+ tazkiyah+number of witnesses?

3) plea of alibi

4) what is admission? who are competent to make admission?

5) what is confession and what are its kinds (judicial and extra
judicial). also evidentiary value of confession before police officer?

6) expert opinion

7) discuss primary and secondary evidence and when secondary


evidence may be given?

8) presumption in law of evidence.

9) what is dying declaration and what is its evidentiary value? also


advantages and disadvantages of dying declaration.

10) explain the rules regarding burden of proof?

11) comment on relevency of character of parties and witness in a


suit?

12) what is meant by estoppel? give its kinds.

13) what does leading question mean? when leading questions are
allowed to be asked and when not?

14) what does professional communication means? discuss in detail


the privilege given to professional communication under the qanoon-e-
shahadat order 1984?

15) comments on facts which are judicially noticeable?


16) examination in chief, cross examination and re-examination and
their objects?

17) impeachment of credibility of witness?

18) what is meant by "hearsay evidence"? when is it admissible?

19) what are public and private documents? how are public
documents proved?

20) explain birth of child during marriage conclusive proof of


legitimacy?

one should also know that " what object does the law of evidence tend
to achieve in the administration of justice"?
NOTES

Qanoon-e-shahadat---- notes

++++++ QANOON-E-SHADAT ORDER, 1984 +++++++


===========================================
==
===========================================
==

Qanoon-e-shadat order 1984 is acode of rules and laws which


provides guidelines in the field of evidences, to the effect to finish
ambiguity in cases and to bring the court at the right conclusion of
justice.

The object of Qanoon -e- shadat order is to provide structure, to the


effect that any fact intended to be established has to be in
accordance with scheme and rules oe Qanoon-e-shadat, and if any
argument which is based on plausibility and on mere presumptions
would have no effect.

The aim of Qanoon-e-shahadat is to revise , amend and consolidate


the law of evidence, so as to bring it in conformity with the
injunctions of islam as laid down in the Holly Quran and Sunnah.

The qanoon-e-shahadat order 1984, applies to all judicial


proceedings, e.g, civil proceedings, criminal proceedings, etc before
any court, but it does not apply to proceedings which are not judicial.
It can be concluded that Qanoon-e-shadat order provides rules,
kinds, types of evidences and the manner of recording evidences of
witnesses as well as consideration of documents in evidence, etc.

===========================================
=======
===========================================
=======
======================================

DYING DECLARATION:
------------------------------------------------------------
------------------------------------------------------------

Dying declaration means such statement, which is given by the dying


person. inother words dying declaration is a staement made by a
person as to the cause of his death, or as to any of the circumstances
of the transaction, which resulted in his death.

WHEN STATEMENTS RELATE TO CAUSE OF DEATH:


===========================================
====

According to article (46) sub-article (1), " Statement made by a


person as to the cause of his death, or as to any of the circumstances
of the transaction which resulted in his death, in cases in which the
cause of that person's death comes into question, such statements
are relevant whether the person who made them was or was not, at
the time when they were made, under expectation of death, and
whatever may be the nature of the proceeding in which the cause of
his death comes into question".

ESSENTIAL CONDITIONS:
===========================

To admit dying declaration in evidence, the following necessary


conditions must be proved:

1. When statement made by a person as to the cause of his death or


to any of the circumstances of the transaction which resulted in his
death.

2. When statement made by a person in cases in which the cause of


that person's death comes into question and not of another person.

3. statement made by a person must be competent to testify as a


witness under article 3 of qanoon-e-shahadat order

4. A dying declaration is only admissible in evidence when it is


proved that the death of the declarant was caused or accelerated by
the wounds inflicted by the accused.

5. Before a statement is admitted as dying declaration, it must be


proved that the person who made he is dead.

6. Dying declaration must be complete.

EVIDENTIARY VALUE OF DYING DECLARATION.


===========================================
===

Dying declaration is a substantive piece of evidence and can be used


against the accused, when there is nothing to suggest that the
deceased had substituted an innocent person in place of real culprit.
so dying declaration when deliberately made under a solemn sense of
impending death and under circumstances wherein the deceased is
not likely to be mistaken, is worthy of great weight. But, dying
declaration which is incomplete and partly touched-up by interested
parties cannot be relied upon .

HOW IT IS PROVED
===================================

A dying declaration is admissible whether it has been reduced to


writing or not. If it has been recoreded by a magistrate , who is not a
committing magistrate, it must be proved by calling the magistrate
as a witness. If it has been recorded by the magistrate in the
presence of the accused under section 164 and 364 of criminal
procedure code, there arises no necessity of producing evidence to
prove it.
If it has not been reduced in to writing in such case it may be proved
by the person to whom it was made or who heard it.

CONCLUSION
===================

It is summed up, that the injured person, who is dead, is generally


the principle witness and is likely to know more than any other
person about the cause of his death. So if an injured person has
stated something about the criminal act, which has made against
him, is called dying declaration.

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ESTOPPEL...

Estoppel in its broadest sense is a legal term referring to a series of


legal and equitable doctrines that preclude "a person from denying or
asserting anything to the contrary of that which has, in
contemplation of law, been established as the truth, either by the
acts of judicial or legislative officers, or by his own deed, acts, or
representations, either express or implied."
This term appears to come from the Old French estoupail (or a
variation), which meant "stopper plug", referring to placing a halt on
the imbalance of the situation. The term is related to the verb
"estop" which comes from the Old French term estopper, meaning
"stop up, impede"

Overview...

Where a court finds that a party has done something warranting a


form of estoppel, that party is said to be "estopped" from making
certain related arguments or claiming certain related rights. The
defendant is said to be "estopped" from presenting the related
defense, or the plaintiff is said to be "estopped" from making the
related argument against the defendant. Lord Coke stated, "It is
called an estoppel or conclusion, because a man's own act or
acceptance stoppeth or closeth up his mouth to allege or plead the
truth."

Because estoppel is so factually dependent, it is perhaps best


understood by considering specific examples.

Example 1: A city entered into a contract with another party. The


contract stated that it had been reviewed by the city's counsel and
that the contract was proper. Promissory estoppel applied to estop
the city from claiming the contract was invalid.

Example 2: The creditor unofficially informs the debtor that the


creditor forgives the debt. Even if such forgiveness is not formally
documented, the creditor may be estopped from changing its mind
and seeking to collect the debt, because that change would be unfair.

Example 3: A landlord informs a tenant that rent has been reduced,


for example, because there was construction or a lapse in utility
services. If the tenant relies on this notice in choosing to remain in
the premises, the landlord could be estopped from collecting the full
rent.

Estoppel is closely related to the doctrines of waiver, variation, and


election and is applied in many areas of law, including insurance,
banking, employment, international trade, etc.[citation needed] In
English law, the concept of legitimate expectation in the realm of
administrative law and judicial review is estoppel's counterpart in
public law, although subtle but important differences exist.

Major types..

Reliance-based estoppelsThese involve one party relying on


something the other party has done or said. The party who did/said
the act is the one who is estopped. Under English law, this class
includes estoppel by representation of fact, promissory estoppel.

Estoppel by representation of fact (English law name), equitable


estoppel (American law)

Equitable estoppel (in English law), including


Proprietary estoppel
Promissory estoppel

Estoppel by recordThis frequently arises as issue/cause of action


estoppel or judicial estoppel where the orders or judgments made in
previous legal proceedings prevent the parties from relitigating the
same issues or causes of action,

Estoppel by deed (often regarded as technical or formal estoppels)


Where rules of evidence prevent a litigant from denying the truth of
what was said or done

Estoppel by silenceEstoppel that prevents a person from asserting


something when he had the right and opportunity to do so earlier,
and such silence put another person at a disadvantage.

Lachesestoppel in equity by delay. Laches has been considered


both a reliance-based estoppel, and a sui generis estoppel.

All reliance-based estoppels require the victimised party to show both


inducement and detrimental reliance, i.e.:
there must be evidence to show that the representor actually
intended the victim to act on the representation or promise, or
the victim must satisfy the court that it was reasonable for him or her
to act on the relevant representation or promise, and
what the victim did must either have been reasonable, or
the victim did what the representor intended, and
the victim would suffer a loss or detriment if the representor was
allowed to deny what was said or done detriment is measured at
the time when the representor proposes to deny the representation
or withdraw the promise, not at the time when either was made, and
in all the circumstances, the behavior of the representor is such that
it would be "unconscionable" to allow him or her to resile.

Estoppel by representation of fact and promissory estoppel are


mutually exclusive: the former is based on a representation of
existing fact (or of mixed fact and law), while the latter is based on a
promise not to enforce some pre-existing right (i.e. it expresses an
intention as to the future). A proprietary estoppel operates only
between parties who, at the time of the representation, were in an
existing relationship, while this is not a requirement for estoppel by
representation of fact.

Where one person (the representor) has made a representation of


fact to another person (the representee) in words or by acts or
conduct, or (being under a duty to the representee to speak or act)
by silence or inaction, with the intention (actual or presumptive) and
with the result of inducing the representee on the faith of such
representation to alter his position to his detriment, the representor,
in any litigation which may afterwards take place between him and
the representee, is estopped, as against the representee, from
making, or attempting to establish by evidence, any averment
substantially at variance with his former representation, if the
representee at the proper time, and in proper manner, objects
thereto.

An estoppel by representation [of fact] will arise between A and B if


the following elements are made out. First, A makes a false
representation of fact to B or to a group of which B was a member.
[It is not necessary to demonstrate A knew that the representation
was untrue.] Second, in making the representation, A intended or [in
the alternatively,] knew that it was likely to be acted upon. Third, B,
believing the representation, acts to its detriment in reliance on the
representation. [It must have been reasonable to rely on the
representation.] Fourth, A subsequently seeks to deny the truth of
the representation. Fifth, no defence to the estoppel can be raised by
A.

A representation can be made by words or conduct. Although the


representation must be clear and unambiguous, a representation can
be inferred from silence where there is a duty to speak or from
negligence where a duty of care has arisen. Under English law,
estoppel by representation of fact usually acts as a defence, though it
may act in support of a cause of action or counterclaim.

Equitable estoppel (English law)

For the American doctrine of equitable estoppel, see Estoppel by


representation of fact.
Under English and Australian legal systems, estoppels in equity
include promissory and proprietary estoppels. (Contrast with estoppel
by representation, which is a claim (under the English system) at
law.) For more information, see Promissory estoppel and Proprietary
estoppel below.

Proprietary estoppel..

In English law, proprietary estoppel is distinct from promissory


estoppel. Proprietary Estoppel is not a concept in American law, but a
similar result is often reached under the general doctrine of
promissory estoppel.

Traditionally, proprietary estoppel arose in relation to rights to use


the land of the owner, and possibly in connection with disputed
transfers of ownership. Although proprietary estoppel was only
traditionally available in disputes affecting title to real property, it has
now gained limited acceptance in other areas of law. Proprietary
estoppel is closely related to the doctrine of constructive trust.

J. Fry summarized the five elements for proprietary estoppel as:

the claimant...

...made a mistake as to his legal rights (typically because the actual


owner attempted to convey the property, but the transfer is invalid or
ineffective for some reason);

...did some act of reliance;


the defendant...
...knows of the existence of a legal right which he (the defendant)
possesses, and which is inconsistent with the right claimed by the
claimant;

...knows of the claimant's mistaken belief; and,

...encouraged the claimant in his act of reliance.

Example: A father promised a house to his son who took possession


and spent a large sum of money improving the property, but the
father never actually transferred the house to the son. Upon the
father's death, the son claimed to be the equitable owner. The court
found the testamentary trustees (as representatives of the deceased
father's estate) were estopped from denying the son's proprietary
interest, and ordered them to convey the land to the son.

Equitable estoppel is distinct from promissory estoppel. Promissory


estoppel involves a clear and definite promise, while equitable
estoppel involves only representations and inducements. The
representations at issue in promissory estoppel go to future intent,
while equitable estoppel involves statement of past or present fact. It
is also said that equitable estoppel lies in tort, while promissory
estoppel lies in contract. The major distinction between equitable
estoppel and promissory estoppel is that the former is available only
as a defense, while promissory estoppel can be used as the basis of a
cause of action for damages.

For an example of promissory estoppel in the construction industry,


suppose that B Ltd consolidates estimates from a number of
subcontractors and quotes a single price on a competitive tender. The
client accepts B Ltd's quote and construction begins. But one of the
subcontractors then claims reimbursement above its original estimate
and, because of this change, B Ltd cannot profit from the works. If
both parties knew that the accuracy of the individual estimates was
critical to the success of the tender and the profitability of the
contract as a whole, a court might apply promissory estoppel and
allow B Ltd to pay only what the subcontractor originally estimated
rather than the new, higher price. But, if both parties hoped that
there would be an opportunity to increase the contract prices to
reflect additional expenditure, the subcontractor's conscience would
not be as limited in seeking a higher payment and B Ltd might be
penalised for not building an adequate contingency sum into the
tendered price.

One contentious point during the drafting of the Restatement was


how to calculate the amount of damages flowing from a promissory
estoppel. During the deliberations, the following example was
considered: a young man's uncle promises to give him $1,000 to buy
a car. The young man buys a car for $500, but the uncle refuses to
pay any money. One view was that the young man should be entitled
to $1,000 (the amount promised), but many believed that the young
man should only be entitled to $500 (the amount he actually lost).
The language eventually adopted for the Second Restatement reads:
"The remedy granted for breach may be limited as justice requires."
a formula which leaves quantification to the discretion of the court.

Other estoppels...

Pais...

Estoppel in pais (literally by act of notoriety", or "solemn formal


act) is the historical root of common law estoppel by representation
and equitable estoppel. The terms Estoppel in pais and equitable
estoppel are used interchangeably in American law.

Convention...

Estoppel by convention in English law (also known as estoppel by


agreement) occurs where two parties negotiate or operate a contract
but make a mistake. If they share an assumption, belief or
understanding of how the contract will be interpreted or what the
legal effect will be, they are bound by that belief, assumption or
understanding if:

(i) they both knew the other had the same belief, and
(ii) they both based their subsequent dealings on those beliefs.
Some say[who?][by whom?] that estoppel by convention is not truly
an estoppel in its own right, but merely an instance of reliance-based
estoppel (estoppel by representation would be its most frequent
form). Others[who?][by whom?] see it as no more than an
application of the rule of interpretation that, where words in a
contract are ambiguous, one always interprets those words so as to
give effect to the actual intentions of the parties even though that
would not be the usual legal outcome.

Estoppel by convention is most commonly invoked if one party


wishes to rely on pre-contract negotiation as an aid to construction of
the contract, Chartbrook Ltd and another v Persimmon Homes Ltd
and another [2009] UKHL 38.

Estoppel by acquiescence...

Estoppel by acquiescence may arise when one person gives a legal


warning to another based on some clearly asserted facts or legal
principle, and the other does not respond within "a reasonable period
of time". By acquiescing, the other person is generally considered to
have lost the legal right to assert the contrary.

As an example, suppose that Jill has been storing her car on Jack's
land with no contract between them. Jack sends a registered letter to
Jill's legal address, stating: "I am no longer willing to allow your car
to stay here for free. Please come get your car, or make
arrangements to pay me rent for storing it. If you do not do so,
within 30 days, I will consider the car abandoned and will claim
ownership of it. If you need more time to make arrangements, please
contact me within 30 days, and we can work something out." If Jill
does not respond, she may be said to have relinquished her
ownership of the car, and estoppel by acquiescence may prevent any
court from invalidating Jack's actions of registering the car in his
name and using it as his

Estoppel by deed...

Estoppel by deed is a rule of evidence arising from the status of a


contract signed under seal such agreements, called deeds, are
more strictly enforced than ordinary contracts and the parties are
expected to take greater care to verify the contents before signing
them. Hence, once signed, all statements of fact (usually found in the
opening recital which sets out the reason(s) for making the deed) are
conclusive evidence against the parties who are estopped from
asserting otherwise.

Conflict Estoppel...

an inconsistent position, attitude or course of conduct may not be


adopted to loss or injury of another Brand v. Farmers Mut.
Protective Assoc of Texas, Tex. App 95 S.W.2d 994, 997. For
example, as between two or more claimants, a party that takes
multiple and inconsistent legal positions is estopped to assert its
positions against another consistent and certain claim, i.e.
preferential treatment for certain over uncertain claims.

Issue estoppel...

estoppel when a issue arises.

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IDENTIFICATION PARADE:
--------------------------------------------------------------------
--------------------------------------------------------------------

An examination conducted by the magistrate during the course of


investigation, for the purpose of identifying a culprit through victom
or witness is identification parade.

Identification parade is a technical procedure in which a criminal


suspect and other similar persons are shown to the witness in order
to find the actual culprit, and to launch a prosecution against him.

The identification parades are held by the police in the course of


investigation for the purpose of enabling witnesses, to identify the
property which is the subject matter of the offence or to identify the
culprits, who had made good their escape and were not caught on
the spot . In the case of identification of the accused, he is mixed-up
with several other persons and the witness is required to pick-out the
person, whom he claims to have seen in the commission of the
offence or crimje.

Identification proceedings are facts which estaclish the identity of the


accused persons and are themselves relevant. But evidence of
identification parade is only relevant if it is conducted in-accordance
with the requirements of article (22) of Qanoon-e-shahadat order,

It must be remembered that holding of identification parade is not a


requirement of law but only one of the methods to test the veracity
of the evidence of an eye-witness who has had an occasion to see
the accused and claims to identify him.

OBJECT OF IDENTIFICATION PARADE


----------------------------------------------------------------------
----------------------------------------------------------------------

The object behind the identification proceeding is to find-out whether


the suspect (accused) is the real offender or not. Sole purpose of
identification is to ensure that an innocent person, either deliberately
or by mistake is not involved. Although, Identification is not legal
requirement, however, when necessary, it is the duty of court to
examine that all possible steps were taken for holding fair
identification parade and the witnesses at their own correctly picked-
up the culprits.

An identification parade, if it has to have any value must be held by a


magistrate and in the absence of police.

RELEVANCY AND EVIDENTIARY VALUE OF IDENTIFICATION:


-----------------------------------------------------------------------------
------------------
-----------------------------------------------------------------------------
------------------

In cases, where the offenders are not caught at the spot, the names
of the culprits are not found in the first information report, and they
are caught after some time, the identification parade is held and
often the fate of the prosecution case depends upon the satisfactory
character of identification proceedings in such cases.
Identification test of accused person cannot as a rule form sufficient
basis for conviction, yet can necessarily be used in support of other
evidence against them.

The fact of identification in a parade by itself not substantive


evidence but is admissible under article 22, and provides strong
corroboration to the identification made in court.

===========================================
=======
===========================================
=======
======================================

JUDGEMENT-IN-REM :
-------------------
- - - - - - - - - - -- - - - - - - -

Judgement-in-rem means an adjudication pronounced upon, the


status of some particular matter by a competent authority or court. A
judgement-in-rem is always
admissable in any suit in which the status , which it has declared, is
in question. It is, valid against the entire world and not only inter-
parties.

In other words juggement-in-rem is a judgement which binds all


men, and not only the parties to the suit in which it was passed, and
that it belongs to possitive law,
to say which judgement are to be judgement-in-rem whether for
reasons of international comity or domestic expediency.

A judgement-in-rem is one, which declares, defines or otherwise


determines the status of a person or of a thing, that is to say, the
jural relation of the person or thing
to the world generally. Such a judgement furnishes conclusive
evidence of the points it decides, not only against the parties who are
actual litigants in the case, but
against all others.
JUDGEMENT-IN-PERSONAM
- - - - - - - -- - - - - - - - - - - - - - - - - -
--------------------------

Judgement-in-personam means, a judgement inter-parties, it is an


ordinary judgement between the parties , in cases of contract , torts
or crime.

In other words judgement-in-personam means a judgement between


the parties in a suit, it is such judgement that impose personal
liability on a defendant and that
may therefore be satisfies out of any of the defendant"s property
within judicial reach.

POINTS OF DIFFERENCE BETWEEN JUDGEMENT-IN-REM AND


JUDGEMENT-IN-PERSONAM:
-----------------------------------------------------------------------------
--------------------------------------------------------------------
-----------------------------------------------------------------------------
--------------------------------------------------------------------

(1). A judgement-in-rem is conclusive against the world as to the


status of the res. A judgement-in-personam is conclusive only
between parties or privies.

(2). The final judgement of probate, matrimnial, admiralty or


insolvency courts confering on or taking away from any person any
legal character or declaring any
person to be entitled to any legal character or to any specific thing,
are instances of judgement -in-rem, while judgement-in-personam is
the resolution of a particular
dispute between two parties.

(3). A judgement-in-rem is an exception to the rule of law that, " no


man should be bound by the decision of court of justice unless he or
those under whom he claims
be parties to proceedings in which such judgement was given."

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ALIBI
-------------------------
-------------------------

Alibi is a plea of defence, (in respect of innocence of accused) by


which the accused suggests to the court that he was some where
else at the time of commission of alleged offence.

Where an alleged offence has been committed, and the prosecution


accuses a person of having committed the same, in fit circumstances,
it would be a complete answer to the accusation for that person to
plead that he was at the time of occurence else-where.

Alibi as an evidence is admissible under article 24 of qanoon-e-


shahadat as it postulates physical impossibility of the presence of
accused at scene of the offence by reason of his presence at another
place. Plea of Alibi can succeed only if it was shown that accused was
so far away at the relevant time that he could not be present at the
place where the crime was committed.

Plea of Alibi should be taken at the earliest and must be supported by


strond evidence.

The burden of prooving this plea is on accused, and if that person


succeeds in establishing that plea, he will be entitled to acquittal.

===========================================
=======
===========================================
=======
======================================
RES-GESTAE
----------------------------------------------
----------------------------------------------

Res-gestae is a latin word, it means the events at issue, or other


events contemporaneous with them.

Res-gestae has been broadly defined as matter incidental to the main


fact and explanatory of it, including acts and words which are so
closely connected therewith as to constitute a part of the transaction
and without a knowledge of which the main fact might not be
properly understood.

There are many incidents which though not strictly in issue, yet be
regarded as forming part of it, in the sense that they closely
accompany and explain that fact. these constituent or accompanying
incidents are in law said to be admissible as forming part of the Res-
gestae or main fact.

The evidence about the fact, which is also connected with the same
transaction, cannot be said to be inadmissible or irrelevant. There is
no provision of law which lays-down that evidence can be led only in
respect of that matter which is the subject-matter of the charge.
Facts forming part of the same transaction though not in issue but so
cnnected with a fact-in-issue as to form part of the same transaction
are relevant.

The rule as to admissibility of evidence as res-gestae, is embodied


and illustrated in articles (19), (20), (21), (22) and (27). In other
words occasion, cause, effect, motive, preparation, conduct,
explanatory or introductory facts, etc, are the various modes in which
facts form parts of Res-gestae.

===========================================
=======
===========================================
=======
======================================

TAZKIYAH-TUL-SHAHOOD.
----------------------------------------------------------------
************************************************** ****
----------------------------------------------------------------

Tazkiyah means the mode of enquiry conducted by the court. In-


order to ascertain whether the evidence of the witness is acceptable
or not and for the purpose of declaring a witness "adil" (bearing good
moral character) .

Tazkiyah-tul-shahood means to conduct an open and confidential


inquiry to ascertain whether the witnesses are credible or otherwise.

In-accordance with the injunctions of islam as laid down in the Holy


Quran and Sunnah, the court in tazkiya-tul-shahood satisfy itself that
the witness is truthful and abstain from major sins or not.

Tazkiyah (purgation) is a piculiarity and a product of islamic


procedure. In its scope and extent it is distinguishable from the term
cross-examination.

The object of Tazkiyah-tul-shahood is that if a false witness makes a


statement , it should be thoroughly investigated so that it may not
harm anyone.

Tazkiyah-tul-shahood is compulsory in cases of Hadood and Qisas


because doubts cause removal of Hadood/Qisas punishment.

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HOSTILE WITNESS:
---------------------------------------------
---------------------------------------------

A witness who is biased against the examining party or who is


unwilling to testify.

A hostile witness may be defined as one who from the manner in


which he gives evidence shows that he is not desirous of telling the
truth to the court.

A witness is not to be considered hostile simply because he gives


unfavourable statement. A witness is hostile, when in the opinion of
the court , he bears hostile
intention to the party calling him. A witness should not be treated
hostile simply because he does not support the prosecution case in
all respects. He is hostile when
his temper, attitude, demeanour etc, shows a distinctly hostile
feelings towards the party calling him, or when concealing his true
sentiments he does not exhibit any
hostile feelings, but make statement contrary to what he has called
to prove and by his manner of giving of evidence and conduct shows
that he is not desirous of
giving evidence fairly and telling the truth to the court.

The prosecution cannot cross-examine its own witness, but the court
has got wide discretionto allow the prosecution to cross-examine
prosecution witnesses after
declaring them hostile.

PRINCIPLES APPLLCABLE TO THE ASSESSMENT OF EVIDENCE OF


HOSTILE WITNESS:-
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No har and fast rule can be laid down as to the assessment of


evidence of hostile witness. But where the court finds that certain
facts disclosed by a hostile witness,

corroborating the story as set-up by other witnesses, can safely


accept as true and in support of the version of the other witnesses.
It would be wrong to suggest that the evidence of hostile witness has
to be discreditted wholly. The testimony of the hostile witness cannot
be left-out of
consideration and the evidence has to be considered like the
evidence of any other witness, but with a caution for the simple
reasons that the witness has spokenin
different tones. When a person speaks in different voices, it is for the
court to decide, in what voice he speaks the truth.