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QANOON E SHAHADAT 1984 ( QSO )

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Advocate High Court

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“I am very thankful to my almighty ALLAH for giving me such a courage, success and honor. I am also
very thankful to all the students who appreciated my work and received them warmly. In these
notes the law has been elaborated with the help of landmark judgments which is delivered by the
Hon’ble Courts and has been written for the examination point of view and i hope that these notes
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Qanun-e- Shahdat Order 1984

Q. 1: Accomplice

1. Preface
Art. 16 of QSO, 1984 has clearly described that accomplice is a
competent witness against an accused person.

[1992 KLR (Cr. L) 540]

But it was also held that accomplice’s evidence is not reliable in Hadd
or Qisas cases but admissible in Tazir.

2. Lexical Meaning Accomplice

 Co-Accused

Accomplice is a person who has directly or indirectly concern

to privy, crime, or offence.
Legal Definition
Black’s Law Dictionary

A person Associate in crime

Case Law Definition

A guilty associate or partner in crime or one, who in some way or the
other, is connected with the offence in question or who makes
admission of facts showing that he had a conscious hand in the
offence whether he is concerned in the strict legal propriety as
principal in the first degree or second offender or merely as
accessory before or after the fact.
[PLD 1950 Lah. 129]
3. Relay Article
Art. 16 and 129 (b) Qanun-e-Shahdat, 1984

Cross Ref

Sec 337 to 339 Cr.PC

4. Witness: Who may testify

Relay Artical

Lexical Meanings of Witness

Kinds of Witness

5. Accomplice as a Witness
Art. 16 accomplice is a competent witness against an accused person.

6. Status of Accomplice as a Witness

As to the wordings of Art. 16 QSO, 1984

“An accomplice shall be competent witness against an accused person ………”

7. Competency of Accomplice as Witness

i. General Rule

 Accomplice is a valid/ competent witness

 Any punishment based on such evidence is not illegal

ii. Exceptions

Offences punishable with Hadd, the Evidence of accomplice is not capable.

8. Kinds of Statements
 Inculpatory Statements

 Exculpatory Statments

9. Rule laid down u/Art. 129(b) QSO, 1984

 An accomplice is unworthy of credit

 Unless his evidence is corroborated in material

particulars

10. Concept of Accomplice in Islamic Laws

Accomplice’s evidence is not worthy of credence under the Islamic Laws, it can
be relied upon only when it is corroborated by other evidence.

[PLJ 1991 FSC 139]

11. Corroboration
 Lexical Meanings

Accomplice is a person who has directly or indirectly concern

to privy, crime, or offence.

 Corroboration of accomplice evidence

Accomplice is a competent witness against an accused person.

 Nature of Corroboration

The corroboration must be with strong and independent evidence, because it

is well settled rule that weak evidence can not be an evidence of some other
weak evidence.

 Effect of Corroboration

Evidence of accomplice is at least one material fact pointing to the guilty of the
accused.

12. Requisites of Evidence of Accomplice

i. The statement of accomplice being a witness must be

satisfactory, reliable and not exculpatory.

ii. Material particulars must be corroborated by a strong and

independent piece of evidence.

13. Preclude Remarks

To Preclude that, we can say that the admission

…………………………………………………
Q.2: ADMISSION

1. PREFACE

AIR 1959 ALL 518 (DB)

The acid test which distinguishes confession from admission is that where a
conviction can be based on the statement alone it is a confession and where
some supplementary evidence is needed to authorize a conviction it is
admission.

2- LEXICAL MEANINGS

i. Oxford Dictionary Lexical Meanings

Admission is a statement, oral or documentary way in certain facts.

3- DEFINITION

As to the wordings of Article –30 of the Qanun-e-Shahadat Order

1984, Admission is defined as:

“An admission is a statement, oral or documentary, which suggests

any inference as to any fact in issue or relevant fact, and which is
made by any of the persons, and under the circumstances,
hereinafter mentioned.”
 4- CASE LAW DEFINITION

AIR 1957 ALL 1

“An admission is a concession or voluntary acknowledgement made

by a party or any one identify with him in his legal action of the
existence of certain facts which are in issue or relevant to an issue in
a case.”

5- RELAY ARTICLE

 Article 30-36

Qanun-e-Shahadat Order1984

6- ESSENTIALS TO CONSTITUTE ‘ADMISSION’

The definition of admission as given in Art-30 provides for the

following constituting elements of the admission, i.e.

i. It must be a statement

ii. The statement can be either oral or documentary.

 iii. It must suggest some inference as to any fact in
issue or relevant fact.

iv. It must be made by any person or on his behalf.

v. It must be made under the circumstances mention

in the Qanun-e-Shahadat Order 1984

vi. It can be either express or implied.

Illustrations

A undertakes to collect rents for B.

B sues A for not collecting rent due from C to B.

A denies that rent was due from C to B.

A statement by C that he owed B rent is an admission, and is relevant fact as

against A, if

A denies that C did owe rent to B.

7- BASIC REQUIREMENTS

The rules regarding the admissibility of the admission are as:

a. Admission must be made in favor of the opposite

party.

b. It must be qualified.

c. Admission must be taken as whole.

d. Admission must be clear and definite.

 e. Admission must not be suspicious.

f. Admission must be based upon the Personal

knowledge.

8- WAYS OF MAKING ADMISSION

i. In Oral
ii. In Writing

9- KINDS OF ADMISSION

a. Judicial admission

b. Extra judicial admission

c. Admission in pleadings

d. Evidentiary admissions

e. Implied admissions

f. Incidental admissions.

10- EXPLANATION
‘Briefly explain kinds of Admission’

a. Judicial admission

Before The court or Competent Judge Empower by law.

b. Extra judicial admission

 Out of the limit of court like police officer or doctor or any other
person who is or the authority of court or not empowered by law.

c. Admission in pleadings

Party to suit can seek decree on admission made in pleadings or

otherwise without waiting for determination of any other question between
parties

d. Evidentiary admissions

e. Implied admissions

Admission is not made in express way or fully explains a

fact.
f. Incidental admissions

Sudden

Provocation

Not Willingly

Without consent

11- RELEVANT BINDING FORCE OF KINDS OF

ADMISSION
 1- ADMISSION MADE IN PLEADINGS

Party to suit can seek decree on admission made in pleadings or otherwise

without waiting for determination of any other question between parties

2- RELEVANCY OF ADMISSION IN CIVIL CASES

 RELEVANT ARTICLE

Art. 36 Qanun-e-Shahdat Order, 1984

It is a negative article and it lays down that admission in civil cases is not
relevant if it is made under the following circumstances / conditions.

a) CONDITION NO. 1

When it is made upon a condition that the evidence of it should not be made.

b) CONDITION NO. 2

When it is made under the circumstances from which the court can draw
inference that the parties agreed together that the evidence of it should not be
given.

i. PRINCIPLE

“Interest republico ut sit finis litum”

ii. LETTERS MARKED “WITHOUT PREJUDICE”

PLD 1976 KAR 992

It was held that an admission in a letter marked “without prejudice” is not

admissible in evidence.

3- PROOF OF ADMISSION

a. GENERAL RULE

“Admissions are relevant and may be proved against the persons making them
or his representative in interests

Exception

They cannot be proved by or on behalf of the person making them or his

representative in interest.”

b. INTERPRETATION OF THE GENERAL RULE

An admission is a statement,

oral or documentary,

which suggests any inference as to any fact in issue or relevant fact,

and which is made by any of the persons,

and under the circumstances,

hereinafter mentioned

c. EXCEPTIONS TO THE GENERAL RULE

 OR

SELF SERVING ADMISION

Second paragraph of Article-34 provides for the three exceptions under which
admission may be proved by or on behalf of the persons making them

i) Exception # 1

Case law

Illustration

ii) Exception # 2

Case law

Illustration

iii) Exception # 3

Case law

Illustration

4- VALUE OF ADMISSION

Admissions are relevant and may be proved as against the person who makes
them, or his representative in interest

5- EFFECT OF ADMISSION

1998 MLD 1252 (DB)

 6- COMPARISON WITH CONFESSION

14. Admissions in civil cases when relevant.

In civil cases no admission is relevant, if it is made either upon an express condition that
evidence of it is not to be given,

15. When oral admissions as to contents of documents are

relevant

Oral admissions as to the contents of a document are not relevant,

unless and until the party proposing to prove them

that he is entitled to give secondary evidence of the contents of such document

under the rules hereinafter contained,

or unless the genuineness of a document produced is in question.

16. PRECLUDE REMARKS

Q. 3: CONFESSION BEFORE POLICE OFFICER Extra Judicial
Confesssion

1. PREFACE

The rules contained in Articles 38, 39, 40(Section 25, 26, 27 of the Evidence Act1872) of the
Qanun-e-Shahadat Order, 1984 were not originally treated in British India as strictly
speaking rules of evidence, but rather as a rules governing the action of the police officers,
and as a matter of criminal procedure. In the year 1817 the legislature passed the
REGULATION-XX of that year, repealing the older rule. The legislature had in view the
malpractices of police officers in extorting confessions from accused persons in order to gain
credit by securing convictions.

2. LEXICAL MEANINGS OF CONFESSION

i. Oxford Dictionary

ii. Black’s Law Dictionary

3. RELAY ARTICAL

i. Article 38, 39, 40 of the Qanun-e-Shahadat Order, 1984

ii. Section 25, 26, 27 of the Evidence Act, 1872

4. WHO IS A POLICE OFFICER

5. GENERAL RULE
No confession made to a police-officer shall be proved as against a person accused of any
offence.

a) Relay Artical

Article -38

I. In Pakistan & India

II. In England

b) Reasons for Exclusion

c) Object of enacting this general rule

d) Principle of Article-38

e) Scope of Article-38

6. CONFESSION IN POLICE CUSTODY

a) Relay Artical

Article-39

b) Object of Art-39

no confession made by
any person whilst he is in the custody of a

police- officer,

unless it be made in the

immediate presence of a Magistrate,

shall be proved as against such person

7. Interpretation of Article-39

i. Confession made by a prisoner

ii. In the custody of police

iii. Not in the immediate presence of the Magistrate

iv. Inadmissible in evidence

a) Custody of police

It is to be noted that where a prisoner in police custody is brought before a Magistrate for
the purpose of having his confession recorded, he does not ceased to be in the custody of
the police merely because the police officer is in the next-room.

b) Immediate presence of Magistrate

Art-39 (section-26) does not make the admissibility of a confession dependent upon the
knowledge of the accused as to the identity of the Magistrate, the main consideration being
the presence of the Magistrate and making the confession in his presence

8. EXCEPTIONS TO THE GENERAL RULE.

Article- 40 of the Qanun-e-Shahadat Order 1984 lays down an exception to the general rule
“ that confession before police officer or in custody of the police is not admissible in
evidence.”

9. Scope of Article-40

1996 MLD 1356

10. Basis of Article-40

Article- 40 is based on the view that if a fact is actually discovered in consequences of the
information given, some guarantee is afforded thereby that the information was true, and
accordingly can be safely allowed to be given in evidence.

11. REQUIREMENTS OF ARITICLE-40

i. There must be a deposition of fact

ii. The fact must be discovered on deposition.

iii. The fact must be discovered in consequences of the information.

iv. The accused person must give the information.

v. The accused person must be in the custody of the police.

vi. The information must lead to the discovery

vii. That portion of the information must relate to the fact discovered

viii. Confession must be of the offence charged.

12. EXTENT OF INFORMATION ADMISSIBLE

It was held that the extent of information admissible must depend on the exact nature of
the fact discovered to which such information is required to relate.

13. TEST OF ADMISSIBILITY

The test of admissibility is that “ was the fact discovered by reason of the information, and
how much of the information was immediate course of the fact discovered, and as such a
relevant fact”

14. DUTY OF THE COURT

It was held that the court should enjoin upon a police witness a strictest precision while he
gives a statement. He should be made to state clearly and separately as to what each
prisoner had stated so that there can be no mistake, or misunderstanding. When the
evidence is not clear in this respect the court should ignore it.

15. AGAINST WHOME IT IS ADMISSIBLE?

Statements admissible under Article-40 (section 27 of Evidence Act) are not admissible
against persons other than the maker of the statement.

NLR 1978 Cr. 212

Note: find out the cited case.

16. VALUE OF SUCH EVIDENCE

OR

EVIDENTARY VALUE

i. No incriminating piece of evidence (NLR 1985 Cr. 62)

ii. Chain of proof (1983 DLR 170 (DB))

iii. Doubtful recoveries (1983 SCMR 1)

iv. Recovery in disregard of mandatory provisions (1979 SCMR 214)

17. PRECLUDE REMARKS

Q. 4: Judicial Confession

1. PREFACE

Confession is an exception to the general rule “that hearsay evidence is no evidence.” The
concept of confession has been derived from Christianity where people went to the Pope
and acknowledge their guilt in front of him.

2. Relay Article

37 to 43 QSO

164, 364, 533 CR.PC

3. Applicable OF QANUN-E-SHAHADAT ORDER

Qanun-e-Shahadat Order 1984 provides for three different kinds of Articles:

 Exclusively applicable to Criminal Cases.

For example: confession.

 Exclusively applicable to Civil Cases.

For example: Admission

 Those applicable to both.

For example: Relevancy of facts

Examination of witnesses.
4. LEXICAL MEANINGS OF CONFESSION

Confession is a oral or written statement in which a person say that he have

done something wrong or committed a crime,

 Law Dictionary

The act of telling person something that makes he embarrassed ashamed, etc.

5. DEFINITION OF CONFESSION

An act of confession, especially a disclosure of one's sins in the sacrament of reconciliation

6. REQUIREMENTS OF CONFESSION

In person

Voluntarily

Without influence

Free of hand cuff

7. THEORY OF CONFESION
Theory of confession is base the ownselfto express own crime or illegal act

8. BASIS OF CONFESSION
The presumption of truth attaching to the incriminating statement made by an accused
person is based upon the sentiment of mankind that a person will not as a general rule
make statements against himself unless they are true.
9. KINDS OF CINFESSION

Main kinds:
i. Judicial Confession

ii. Extra judicial Confession

Other kinds:

i. Inculpatory

ii. Confession

iii. Exculpatory Confession

iv. Retracted Confession

 EXLPANATION OF KINDS

10. PROCEDURE FOR RECORDING CONFESSION

I. When to be recorded

i. During the course of investigation

ii. After the filing of FIR u/s 154Cr.P.C

iii. Before challan u/s 173

II. FORMALITIES TO BE OBSERVED

i. Handcuffs should be removed.

ii. Police should be sent out of the courtroom

 iii. Accused be given time to ponder.

III. INFORMATION TO BE GIVEG TO THE ACCUSED.

The Magistrate recording the confession must explain or inform to the person making the
confession

i. That he is not bound to make a confession

ii. If he makes it, it will be used against him in evidence

iii. That whether he makes a confession or not he will be sent back to the police
custody.

IV. QUESTIONS PUT TO THE ACCUSED PERSON BEFORE RECORDING

CONFESSION.

The following questions to be put to the accused before recording confession.

i. How long have you been with the police?

ii. Has any inducement been given to you?

iii. Have you been threatened to make a confession?

iv. Has any pressure been put on you to make a confession?

v. Have you been told that you will be made an approver?

vi. Why are you making this confession?

vii. Have you consulted your relatives or lawyer?

11. Satisfy Of Majistrate

The Magistrate should satisfy himself that the confession is being made voluntarily and
then record it.

Judicial confession not recorded according to High Court Rules & order, Volume-III
Chapter-XIII, such confession ruled out of consideration.

I. HOW RECORDED.

Judicial confession must be recorded in the manner provided by Section-364 Cr.P.C.

II. CONSEQUENCES OF DELAY IN RECORDING THE CONFESSION

Where there was an unexplained delay of more then 24-hours in recording the confession
such confession excluded from consideration.

12. ADMISSIBILITY OF CONFESSION

Relay Article

Article 37,41, 42

I. Article 37

Confession caused by inducement, threat or promise is irrelevant in Criminal proceedings

II. Article 41

Confession made after removal of impression caused by inducement; threat or promise is

relevant.

III. Article 42

Unlike admission in Civil cases confession which is otherwise relevant does not become
irrelevant merely because it is made under promise of secrecy or deception practiced on
the accused person for the purpose of obtaining it, or when he was drunk etc.

13. EXPLANATION

A confession, which falls within the mischief of Art, 37 are inadmissible in evidence.

In order to attract the provisions of Art. 37, the following facts need to be established.

 That the accused person has made the confession in authority.

 That it must appear to the court that the confession has been obtained by reason
of any

i. Inducement

ii. Threat

iii. Promise
14. Proceeding from a person in authority.

 That the inducement threat or promise must have been with reference to the
charge against the accused person.

 The inducement threat or promise must in the opinion of the court be such that it
would appear to the court that the accused in making the confession believed or
supposed that he would by making it gain any advantage or avoid any evil of
temporal nature in reference to the proceedings against him.

I. INDUCEMENT

Where accused when making the confession was entreating and praying to the court as
well as to the officer concerned to be forgiven. Statement of the accused indicated
inducement and could not be taken as admission of guilt.

II. THREAT.

AIR 1967 Manipur, 11

Confessions obtained from slaves under the whip or a threat of the whip have usually
been excluded, upon the circumstances of the case presented.

III. PROMISE

PLD 1972 Kar, 292 (DB)

Promise of being made approver held is sufficient inducement to obtain confession, such
confession is inadmissible.
15. REMOVAL OF IMPRESSION CAUSES BY INDUCEMENT
THREAT OR PROMISE.

AIR 1959 Modh par. 17

When once the existence of improper inducement, threat or promise has been established
so as to bring the case within the provisions of Art 37, there is a presumption of its
continuance, and the prosecution has to prove that the impression caused by the original
inducement, threat or promise was fully removed when the accused made the confession.

I. ESSENTIAL

IMPRESSION MUST BE FULLY REMOVED

AIR 1949 Madh Par. 17

The word “fully” in Art-41 means “thoroughly” “ completely” “entirely”, so as not to leave
any trace of the impression created by the torture or fear, for a confession forced from
the mind by the flattery or hope or by torture or fear comes in so questionable a shape
that no credit can be given to it. A free and voluntary confession is presumed to flow from
the strongest sense of guilt and therefore, it is admitted as proof of crime.

II. CONFESSION WHEN NOT ADMISSIBLE.

i. Confession recorded by a Magistrate without confirming to the mandatory

provisions of Section 164 or 364 of The Code of Criminal Procedure is
inadmissible in evidence.

ii. Confession caused by inducement, threat or promise under Art. 37

 iii. Confession before police officer is not admissible under Art. 38

iv. Confession made by a person in police custody, which is not made in the
immediate presence of a Magistrate under Art.39

16. EVIDENTIARY VALUE OF CONFESSION

1. Best evidence as against the maker (PLD 1964 SC 813)

2. Sole base of conviction (1998 MLD 94 (FSC)

3. Weakest kind of evidence (1999 PCrLJ 831)

4. Corroborative piece of evidence. (1996 PCrLJ 1621 (DB)

17. PRECLUDE REMARKS

Q. 5: Estoppel

1.Preface
An estopple is a rule of evidence which precludes a party from denying the truth of certain
facts. It is applicable in civil cases only and is based on equity and good conscious.

2. Relay Articles
a. Qanun-e-Shahadat Order, 1984

 Art. 114, 115, 116

b. Indian Evidence Act, 1872

 Sec. 115, 116, 117

c. Code of Criminal Procedure, 1908

 Sec. 11

d. Partnership Act, 1932

 Sec. 28

3. Case Law Definition

Doctrine of estoppel is an equitable doctrine, a rule of exclusion which implies that if a
person had by act or omission attested the position, he would be estopped and be
precluded from denying it.

[PLD 1989 Kar 499]

4. Object of Estoppel
The object of estoppel is to prevent fraud and to secure justice between the parties by
promotion of honesty and good faith.
5. Analysis of Art. 114
a. Representation

i. Must be of fact and not of law

ii. Must be of existing fact

iii. Must have been acted upon

b. No estoppel where no representation is made

c. Result must not be ultravires / illegal

d. No estoppel where truth is known to both parties

2- Form of Representation

The Representation to form the basis of estoppel may be made either by

i. Statement

ii. By conduct (and conduct includes negligence)

Explanation

[AIR 1965 AP 163]

3- Effect of Representation

If there was no representation from the plaintiff, there can not be an estoppel.

“No Representation, No Estoppel”

4- Condition Precedent

a. Party sought to be estoppel make a representation

b. Estoppel must be certain

Intention to induce party to act upon it

c. Raising or pleading party has altered his position to his detriment

d. Estoppel by itself neither create title nor cause of action

e. Restricted to parties

5- Basis of Estoppel

Equity, Good Faith and Good conscious

 6- Kinds of Estoppel

By judgment

By deed

By conduct

6. Estoppel of Immovable property

a. Relay Artical

 Art. 115 Qanun-e-Shahadat Order, 1984

b. Extent of Art. 115

 It applies to following

1. Tenant and Landlord

2. Licensee and Licensor

3. Mortgagee and Mortgagor

c. Principle

 In Art. 115, this rule is established that a person retains of takes

possession of a property in fiduciary capacity is estopped from
questioning the title of the person from whom he got possession.

7. Estoppel of Movable Property

a. Relay Artical

 Art. 116 Qanun-e-Shahdat Order, 1984

b. Application of Art. 116

 It deals with the estoppel in respect of movable property

 Acceptor of Bill of Exchange

 Acceptor of Bill of Exchange will not be permitted to say that the

drawer had no authority to draw the bill.

 Bailee

 Bailee will not be allowed to say that at the time when the bailment
commenced, the lessor had no authority to make such bailment.
  Licensee

 Licensee will also not be allowed to say that at the time of

commencement of License, the licensor had no authority to allow it.

8. Consequences of Estoppel
 The principle applied that where the fact presumed is taken to be
true, not as against the entire world, but as against particular party.

 It operates merely as a personal disqualification and does not bind

upon any one who claims by an independent title.

9. Burden of Proof
 Upon the party claiming estoppel

10. Limitations of Doctrine of Estoppel

 Criminal Case
 Statement of Opinion
 Representation on Question of Law
 Mere silence does not amount to Estoppel
 Not applicable to Minors
 Upon Jurisdiction of the Court

11. Preclude Remarks

 PLD 2006 Lah. 121
Q. 6: EXAMINATION OF WITNESS

1. Preface

Qanun-e-Shahdat Order, 1984 has given the provisions defining the phases of examining a
witness under the chapter ____. The purpose of these stages of the examination of
witnesses is to know the reality or truth about the disputed facts.

2. Concept of Examination of Witness

Examination of witness would mean examination-in-Chief, Cross Examination and Re-
Examination.

3. Relay Article
130, 132, 140, 143 to 149 QSO 1984

4. Rational behind the Examining Witness

Examination of witness is conducted only to check the validity or authenticity of the
evidence.

[PLJ 2006 Kar. 427 (DB)]

5. Stages of Examination of Witness

Examination-in-Chief Cross Examination Re-Examination

6. Rules to conduct Examination of Witness

1. Art. 130 of Qanun-e-Shahadat Order, 1984 describes that to conduct an

examination of a witness should follow the rules prescribed in Code of Civil
Procedure of Code of Criminal Procedure, as to the nature of case.

2. In case of absence of the code, or regulations, as the case may be, the Court
should be the competent authority to do the same.

7. Examination-in-Chief
1. Lexical Meanings

The examination of a witness by the party who calls him shall be called his
examination-in-chief.

2. Relay Article

132 qso

3. Statutory Interpretation

1. The examination of a witness by the adverse party shall be called his cross-
examination.
2. The examination of a witness, subsequent to the cross-examination by the
party who called him, shall be called his re-examination.

4. Object

The object of examination-in-Chief is to elicit the truth, to prove the facts which bear upon
the issue in favour of the party calling the witness.

5. Stage in Examination of Witness

Initially stage

6. Nature of Examination-in-Chief

7. Party Competent to Conduct

Same Part
 Own Counsel

8. Scope / Extent

Civil cases

Criminal mcases

All other special law

8. Cross Examination
1. Lexical Meanings

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

2. Relay Article

132 QSO

3. Statutory Interpretation

Adverse party

Shell be called

For cross examine

4. Objects

i. To elicit the truth

ii. To expose falsehood

iii. To impeach the credit of the witness

5. Stage of Cross Examination

After the examination of chief

6. Party Competent to Conduct

Opponent party

Adverse party in case

7. Nature
Mandatory to cross examine a witness who has made an examination-in-chief before the
Court.

8. Omission as Cross Examination

The omission of cross examining the witness, even after the

opportunity has been given to the Council, such statement of the
witness given during his Examination-in-Chief would be deemed
admitted or based on truth.

9. Re-Examination
1. Lexical Meanings

The examination of a witness, subsequent to the cross-examination by the

party who called him, shall be called his re-examination.

2. Statutory Interpretation

Re called of re examination

3. Relay Artical

Art. 132 (3)

4. Stage of Re-Examination

After the completion of chirf examination and complete the cross examination
that is called

5. Purpose / Object

To clear any doubt or other mistake

6. Scope

All civil cases

Criminal cases

Any other law

7. Extent of Re-Examination

Upto the fact or matters which were unexplained or created some suspicion during Cross
Examination.

8. Party Competent to Conduct

By the Party calling in the witness

10. Preclude Remarks

Q. 7: Examination in chief

1. Preface

2. Lexical Meaning

3. Stages of Examining a Witness

4. Concept of Examination-in-Chief

5. Relay Article
Art. 132 Qanun-e-Shahdat Order, 1984
18. Statutory Interpretation
The examination of a witness by the party who calls him shall be called his examination-in-
Chief.

19. Object of Examination-in-Chief

The object of examination-in-Chief is to elicit the truth, to prove the facts which bear upon
the issue in favour of the party calling the witness.

20. Time to conduct Examination of Witness

This is the first step to examine a witness before the Court of Law.

21. Nature of Examination-in-Chief

It is usually consists on narrative statements of the witness produced before the Court. In
this examination the witness is generally expected to give statements in favour of the party
from which side such witness is produced.

22. Party Competent to Conduct

Examination-in-Chief is conducted by the Council of the party calling such witness.

23. Scope / Extent

In this examination, only relevant questions can be asked. The questions having no
relevancy to the disputed fact are not allowed.
24. Fate of “Leading Questions”
 “Leading Questions”

 Purpose of Leading Questions

 Leading Questions in Examination-in-Chief

Leading Questions are not allowed in Examination-in-Chief.

25. Nature of Statement given in Examination-in-Chief

The witness is allowed to testify only about the facts, he has perceived are having in his
knowledge, as to their happening, and no witness is allowed to say words of his personal
opinion / suggestion.

26. Objections during Examination-in-Chief

Any objection regarding the facts as stated by the witness during his Examination-in-Chief,
should be notices or brought to the knowledge of the Court, at its earliest.

27. Preclude Remarks

Q. 8: CROSS EXAMINATION

1. Preface

2. Examination of Witness

3. Stages of Examining a Witness

4. Lexical Meanings of Cross Examination

5. Relay Article

6. Statutory Interpretation

7. Objects of Cross Examination

 To elicit the truth

 To expose falsehood

 To probe and highlight desired fact

 To rebut the opposite version

 To impeach the credit of the witness

8. Stage of Cross Examination

9. Party Competent to Conduct

Opposing Council /party

10. Scope of Cross Examination

Wider than Examination-in-Chief and even to Re-Examination

11. Fate of “Leading Questions”

Art. 138 Qanun-e-Shahdat Order, 1984

12. Nature of Cross Examination

Mandatory to cross examine a witness who has made an examination-in-chief before the
Court.

13. Omission as to Cross Examination

The omission of cross examining the witness, even after the opportunity has been given to
the Council, such statement of the witness given during his Examination-in-Chief would be
deemed admitted or based on truth.

14. Instances of Omission to Cross Examination

 Failure on the ends of opposing party

 Refusal to cross examine

 Waiver of right to cross examine

15. Checks / Bars / Limitations to Cross Examiner

Qanun-e-Shahdat Order, 1984 has prescribed some limitations or Checks on the unfettered
powers of Cross Examiner; under the law during the Cross Examination, following questions
should not be allowed to ask to the witness.

 Irrelevant Questions

(The Court got the authority to determine whether a question is relevant or not)

 Indecent Questions

(Art. 146)

 Scandalous Questions

(Art. 146)

 Questions intended to insult

(Art. 148)

 Questions intended to annoy

(Art. 148)

 Misleading Questions

[1984 Cr. L J 209]

16. Preclude Remarks

Q. 9: RE-EXAMINATION

1. Preface

2. Examination of Witness

3. Stages of Examining a Witness

4. Concept of Re-Examination

5. Relay Article
Art. 132 (3)

6. Stage of Re-Examination
 After Cross Examination

 AIR 1951 Pat 362

7. Purpose / Object of Re-Examination

8. Scope Re-Examination
Limited / narrow

9. Extent of Re-Examination

Upto the fact or matters which were unexplained or created some suspicion during Cross
Examination.

10. Party Competent to Conduct

By the Party calling in the witness

11. Fate of “Leading Questions”

 “Leading Questions”

 Purpose of Leading Questions

 Leading Questions in Examination-in-Chief

Generally not allowed, but the Court can.

12. Limitations

The facts brought before the Court during the Cross Examination can not be entertained or
probed.

13. Introducing new matters

[PLD 1966 Dacca 422 (DB)]

With the permission of the Court, but not otherwise.

14. Preclude Remarks

Q. 10: Hearsay Evidence When Admissible

1. Preclude:
Secondhand information that a witness only heard about from someone else and did not
see or heard himself. Hearsay is not admitted in Court because its not trustworthy, as well
as because of various constitutional principles such as the right to confront one’s accuser,
however, there is so many exceptions that often times hear say is admitted more than
excluded.

2. Relay Article
Art.71 QSO 1984

3. Definition of Hearsay evidence

i) Black’s Law Dictionary.

A term applied to that species of testimony given by a witness who relates not what he
knows personally, but what other have told him, or what he has heared said by other.

ii) Webster’s Law Dictionary

That which one has been told but has not directly experienced that process of acquiring
such information, to know by hearsay.

iii) Osborns Concise Law Dictionary

What someone else has been heard to say “what the sol said” as contrasted with the direct
evidence of a witness himself; oral or written statement made by person not called as
witness.

iv) According to Taylor:

“ It is all evidence which does not derive its value solely from the credit given to the witness
himself, but which rests also, in part, on the veracity and competency of some other
person.”

v) Case law Definition

[PSC 1984 SC 704]

“The word hearsay is used in various senses it means whatever a person is

heard to say, sometimes it means what ever a person declares on information given by
someone else.”

4. “Hearsay” is not used in the Act.

Although the term “Hearsay” is excluded from the Act, but it is in constant use in the law
courts.

5. Scope of Hearsay Evidence.

[AIR 1985 Orissa 171, 176 (DB)]

Hearsay is not now confined to oral statement. It includes what is done or written, as well as
to what is spoken i.e. all evidence reported whether orally or in writing conduct of a person
may also become a source of hearsay just like oral statement.

6. General Rule as to Hearsay Evidence

Keeping in view the provision of Article 71 of the Order, it may be numerated as a general
rule that

“Hearsay Evidence is no Evidenc”

Explanation:
7. Reason, why Hearsay Evidence is no Evidence
[1990 MLD 355]

vi) The irresponsibility of the original declarant, whose statement were made
neither on oath nor subject to cross-examination

vii) The depreciation of truth in the process of repetition, and

viii) The opportunity for fraud, its admission would open; to which are
sometime added;

ix) The tendency of such evidence to protect legal inquairies; and

x) To encourage the substitution of weaker for stronger proof.

8. Hearsay Evidence When Admissible

1) [6 BOM LR 34]

Where the object of the legislature is simply to provide preventive measure, evidence of
repute the hearsay, is admissible.

2) [AIR 1933 OUDH; 246]

the opinion of a witness on the existence of a family custom based on hearsay.

3) [1984 Cri Lj 209 , 211 BOM DB]

The evidence of a witness that she heard a calling her by name and shouting that her father
was assaulting her mother is a admissible as direct evidence as to what she actually heard.

9. Duty of Court
xi) Court must exclude inadmissible evidence even no objection is taken by
any party

xii) Court shall exclude inadmissible evidence…. “ Objection is taken”.

xiii) It is the duty of the court to see the evidence which is inadmissible should
not be allowed to go into prejudice of accused.

10. Memory cannot be refreshed by document containing

 Memory cannot be refreshed by document containing or any other thing which is
related to hearsay evidence or other etc.

11. Exception

1) Confession & Admission

Taylor

“Admission and confession are usually treated as exception to the hearsay rule, considering
them as declaration against interest, and therefore probably true”.

2) Statements made by a person who cannot be called as a witness

Art 46

i. Declaration relating to clause of death i.e. dying

declaration

ii. Declaration in course of business or duty

“Ordinary course of Business”

iii. Declaration against interest under this clause,

statements by deceased person are admissible,
provided

a) He had personal knowledge of the fact

stated

b) The facts were of his immediate prejudice

c) He know the facts to be prejudicial

d) The interest affected by the statements who

pecuniary or proprietary.

iv. Declaration as to public and general rights

Public and general rights Examples.

a) A boundary between village

b) The limit of a village or town

 c) A right to pasturage of waste lands

d) Right to watercourse, tanks and ghats

for washing.

v. Declaration as to pedigree i.e. existence of

relationship principle Statement as to existence
of relationship. Conditions

vi. Declaration by Several persons expressing

feeling.

3) Statements made in a judicial proceeding: Art 47

4) Shahad ala al-shahadah

12. Preclude Remarks

 Q. 11: Impeaching the credit of Witness

1. Preface:
 Scrutiny of evidence to prove unreliability of same
 Manifestation of discrepancy / contradictions

2. Relay Article:
Art 151 & 66 of Qanun-e-Shahadat Order 1984

3. Lexical Meaning of Impeachment

Oxford Dictionary : “to cause a doubt on other”

4. Two Fold Object

Negative
To minimize the chances of error

Positive
to secure maximum degree of accuracy of evidence

5. Scope
“Applicable to both civil and criminal proceedings”

6. Chances of Impurity of Evidence ---------causes

a) Defect of five senses of perceiving facts
b) Witness being ignorant of fact
c) Witness being biased/interested/hostile
d) Defective source of knowledge
 e) Expert being not “expert”

7. Maxim
Falus in uno falus in omnibus
“false in one thing false in everything”
applicability of the maxim
it is neither a sound rule of law nor rule of practice

8. Who can Impeach

f) By adverse party
g) By party who calls the witness with consent of court

9. Modes / Grounds of Impeachment

General modes Special Mode

Independent Testimony Proof of Corruption Proof of inconsistance

Article 151 (1) Article 151(2) Article 151 (3)
Immoral character of Proscutrix
Article 151(4)

10. Rule of best Evidence

Proof of inconsistency between one’s own statement
I. Explanation
ii) Independent testimony
a) General rule opinion evidence is inadmissible
b) Exception Art 151(1)
c) Chain of counter impeachments
d) Doggeler’s rule of civil law
“In testem testes, et in hos, sed non datur ultra”
A discarding witness may himself be discredited by other witnesses
but no further witnesses can be called to attack character of last.
iii) Impeaching by Proof of Corruption
 Theory of threat and cajole
 Carrot and stick policy
iv) Proof of inconsistency
He who is consistent deserves to be believed and vice
versa.
  What is statement
AIR 1959 SC: 1011
The term statement finds no mention in Act. The term
not only includes what is expressly stated there in but
also are necessarily implied there from. It must be
deemed to contain by implication even omission
provided they can by construction be deemed to be a
part of statement in writing itself.
 What is contradiction
“When the previous statement and evidence in court
are so inconsistent and irreconcilable with each other.
 Pre-requisites to contradict
a. Statement should be relevant and admissible
b. Statement should be proved and on the record
c. Statement should be available to accused

 Examples of statements capable of contradiction

a. Police diary/station diary
b. Test identification prade
c. Dying declaration
d. Panch Nama
e. FIR
f. Inquest report
g. Sight plan
h. Statement under 164 Cr.P.C
i. Recital in deed
v) Immoral Character of Prosecutrix
 General Rule
A prosecutrix is believed like victim of violence
 Exception under Article 151(4)

11. Article 66 is an exception to Article 151 of Qanun-e-

Shahadat Ordinance 1984
 Interpretation
Sec. 153 & 155 of Evidence Act 1872 must be strictly
construe and narrowly interpreted.
 AIR 1928 PC 54

12. Preclude Remarks

Q. 12: PRIVILEGE COMMUNICATION

1. Preface
This right is based on the ground of convenience and public policy. It is in public interest and
interest of justice that a particular witness should not be compelled to disclose certain
matters and the law allows them. No one shall be compelled to disclose to the Court,
tribunal or other authority exercising judicial or quasi-judicial powers or jurisdiction any
confidential communication

2. Concept of Privileged Communication

No one shall be compelled to disclose to the Court, tribunal or other authority exercising
judicial or quasi-judicial powers or jurisdiction any confidential communication which has
taken place between him and his legal professional or secret communication.

3. Relay Article

Article 9 QSO 1984

4. Motive behind “Privilege Communication”

Secure privacy

Fundamental right

Public interest

Maintain Reputation

5. General Rule of production of Evidence u/Art. 15

Qanoon-e-Shahadat Order, 1984 provide a general rule in Art.15 that witness is bound to
tell the whole truth and to produce any document in his possession or power relevant to the
matter in issue

6. Rational behind General Rule u/Art. 15

 To promote full and open discussion & complete disclosure of facts
  Doctrine Public Policy

7. Exceptions to the Rule

Art. 4 to 14 of Qanoon-e-Shahadat Order, 1984 state the exception to the general rule and
deals with the privilege of certain classes of witnesses, which cannot be compelled to
disclose certain facts.

8. Purpose of Privilege Communication

This right is based on the ground of convenience and public policy. It is in public interest and
interest of justice that a particular witness should not be compelled to disclose certain
matters and the law allows them.

[ PLD 1960 Lah. 1189 ]

9. Instance of Privilege Communication in QSO

a. Privilege of Judges & Magistrates

Art. 4

 Basis of Privilege

When investigation of the police preliminary to a trial are directed to a very considerable
degree by a Magistrate, such magistrate is personally interested in the case & is disqualify
from trying it

b. Communication During Marriage

Art. 5

 Justification of Privilege

This provision is based on the ground that admission of such testimony would have a
powerful tendency to disturb the peace of families, to promote domestic broils and to
weaken if not to destroy, that feeling of mutual confidence, which is the most endearing
solace of married life.

c. Evidence as to Affairs of State

Art. 6

 AIR 1994 SC 1918

 Justification
Art. 6 protects the discovery of document referring to matters of State and it is based on the
General Rule that no person shall be compelled to give evidence of state secrets including
communication between public officers.

d. Official Communication

Art. 7

 AIR 1970 SC 1372

 Justification

The Article-7 itself says “no public officer shall be compelled to disclose communication
made to him in official confidence, when he considers the public interest would suffer by
the disclosure”

e. Communication as to Commission of an Offence

Art. 8

 Justification

It is absolutely essential to the welfare of the state that name of informer should be
concealed, it will give a sign of protection to public to disclose the information regarding
commission of an offence.

f. Professional Communication

Art. 9 & 10

 Justification

If such communication were not protected, no one would dare to consult a professional
adviser with a view to his defense or to the enforcement of his right and no man could
safely come into the court with a view to enforce or defend his right.

g. Confidential Communication with Legal Advisor

Art. 12

 Justification
Communication with professional advisors should be unembarrassed by any fear as contrary
decisions give rise to. Moreover a compulsory disclosure of confidential communication is so
apposed to the popular conscience on that point that it would lead to frequent falsehood as
to what had really taken place.

10. Rule of ‘Without Prejudice’

LORD GRIFFITHS:……The ‘ without Prejudice’ rule is the rule governing admissibility of
evidence and is founded upon the public policy of encouraging litigants to settle their
differences rather than litigants them to finish.

11. General Instances of Privilege Communication

i. Attorney-Client Privilege:

 Communication must be confidential (intended not to be disclosed to

3rd parties except attorney's employees)

 Communication must be during representation or consultation about

possible employment

 It is not necessary that attorney was actually retained

 Client holds the privilege and only he may waive it. Attorney has a duty to
protect client's privilege unless informed otherwise

ii. Exceptions to privilege:

o Aiding in commission of crime,

o Disputes between attorney and client (malpractice),

o Joint clients,

o Documents attested by attorney, and

o Claimants through same deceased client

iii. Physician-Patient Privilege

 A professional relationship during course of treatment, and the statements

were necessary to treatment

 Patient holds the privilege

 Exceptions to privilege:
 o Aiding in commission of crime,

o Disputes between physician and client (malpractice),

o Patient puts physical condition at issue,

o Agreed contract to waive privilege, and

o Federal case applying the federal law of privilege

iv. Psychotherapist / Social Worker Privilege

 Operates the same as attorney client privilege

v. Husband-Wife Privilege

 Spousal immunity

o One spouse cannot be compelled to testify against the other

spouse in criminal proceeding unless spouse waives privilege

o Testimonial spouse is holder of privilege, and can only be claimed

during marriage even if statements cover information learned
before of after marriage

o Confidential marital communication

 Holder is usually the person who made the statements

(both spouses have privilege)

o Privilege covers statement made during marriage

o Privilege survives the marriage

12. Preclude Remarks

To preclude that, privilege communication is exception to disclose………………………………..

Q.13: Relevancy of Character

1. Preface

 To determine whether character of an accused or wrong doer is

relevant or not, it should be helpful to concern with the provisions
enshrined in the Qanun-e-Shahdat Order, 1984.

 Generally, there are two main classes of laws; i.e. Civil Laws and
Criminal Laws. Therefore, in both the cases the relevancy of character
should vary.

 Character of Accused, in criminal matters, helps to explain his

innocence or criminality.

2. Relay Articles
1. Qanun-e-Shahadat Order, 1984

 Art. 66 – 69

2. Code of Criminal Procedure, 1898

3. The Evidence Act, 1872

3. Lexical Meanings of Character

1. The combination of qualities or features that distinguishes one person,
group, or thing from another.

2. A description of a person's attributes, traits, or abilities.

4. Requisites of Character
1. Reputation

2. Disposition

5. Values of Good Character

1. It shows the reputation among society.
 2. It is directly in issue, therefore, material.

3. Generally useful in doubtful cases.

4. Once good character of a person is proved, then to rebut it there must be

some unimpeachable piece of evidence.

6. Nature of Character
1. Positive

2. Negative

7. Relevancy of Character
Character of an accused person should be considered differently in Civil Cases and Criminal
Cases.

8. Relevancy of Character In Civil Cases

1. Relay Artical

Art. 66 , 69

2. General Rule

The Character of parties, i.e. Plaintiff, Defendant, etc. is not relevant in Civil Cases.

3. Exception

o If the question rises, as to the determination of the damages which he ought

to receive, the character of such person should be considered.

(Art.69)

o Character itself involved in fact-in-issue

o The Character can be relevant, if it appears prima facie while going through
the circumstances / otherwise relevant to the civil matter.

4. Basis of non-relevancy of Character in Civil Cases

 Purpose of Administration of Justice

 Protection of Right

 Enforcement of Right
  Maintenance of Right

 Re-Enforcement of Right

4. Explanations

9. Relevancy of Character in Criminal Cases

1. Relay Artical

Art. 67 , 68

2. General Rule

 Good Character

The previous good character of a person is relevant in Criminal Cases.

(Art. 67)

 Bad character

Generally Irrelevant

3. Exceptions

It becomes relevant in reply

(If it was falsely proved by evidence that such person has a previous good character)

4. Rules

 Mere lodging of FIR does not amount to conviction

 Previous conviction is relevant as evidence of bad character

5. Explanation

10. Preclude Remarks

Q. 14: Competency of witness

1. Preface:

“Witnesses in adversary litigation occupy pivotal position. Without truthful witness it

may be impossible for courts to reach a correct Preclude Remarks in a case. The witnesses
should therefore be treated with dignity and respect by courts in any case before them. The
witnesses while deposing in cases should feel assured that any attempt by party, against
whom he is deposing, to intimidate or humiliate him, will not be allowed by court & that he
will be provided full protection against all such attempts” as laid in NLR 2000 cr,109 & PLJ
1999 SC 1702.

2) LEXICAL MEANING OF WITNESSES:

“A person who appears in court to give evidence.”

BLACK’S LAW DICTIONARY

3) RELAY ARTICAL:
 Articles 3 & 17 of Qanun -e- Shahadat Order,1984

 Sections 118 & 134 of Evidence Act,1872

4)Case Law Definition:

Winning

Vs.

Order of United Commercial Travelers Of America

Ratio Decidendi:

“One who testifies to what he has seen heard or otherwise.”

5) Definition Of Witness:

Muhammed Riaz

Vs.

State

PLD 2003 LHR 291

Ratio Decidendi:

“Persons who are acquainted with the of the case are termed as “witnesses”only such
persons whose testimony is operational are to be termed as witnesses and not those whom
the prosecution calls for evidence.

6) STATUORY REQUIREMENT:

 Competency of witness under Art.3

 Number of witness under Art.17

7) STATUS OF WITNESSES:

CASE LAW:

1999 P. Cr .L.J

“Testimony of person, how high so ever his status ,must be taken with grain of salt
i.e such testimony could not be treated as gospel truth unless corroborated by independent
reliable evidence.”

8) RELIABILITY OF WITNESSES:
CASE LAW:

AIR 1959 Cal.306

“The competency of a witness is a condition precedent to the administration to him of an

oath or affirmation and is a question distinct from that his credibility when he has sworn or
has affirmed.”
9) TEST OF COMPETENCY:
Muhammed Feroz Vs.

Shabbir Ahmed J.

PLD 2003 Karachi 365

Ratio Decidendi:

“The court under article 3 of Q.S.O has to test the capacity of a witness to depose by
putting proper question. It has to ascertain in the best way it can whether from the extent
of his intellectual capacity & understanding. He is able to give rational account of what he
has seen or heard on a particular occasion”.

10) SARKAR’S LAW OF EVIDENCE:

15TH Edition 1999 Page 1959:

“The court should examine the evidence of child witness with care & caution
bearing in mind the suspectibility & possible immaturity of the child.”

11) CONCEPT OF “Tazkiya-Al-Shuhood:

Tazkiya-al-Shuhood means purgation of witnesses. Tazkiya of witnesses is conducted

primarily with the object to know their competency and other virtues in oder to place
implicit faith in their statements to record conviction in cases Hudood and Qisas as laid
down in PLD 1988 SC AJ&K 190.

 According To Islamic View:

Sura Baqra,Ayat No 283:

“Conceal not evidence,for whoever conceal it,His heart is tainted with sin”

12)ISLAMIC INJUNCTION DOES NOT APPLY UNDER QANUN-E-

SHAHADAT:

CASE LAW:
1995 P.Cr.L.J 803 (SC AJ &K)

Art.3 of Qanun-e-Shahadat Order is not repugnant to injunctions of Islam.The

general rule on the subject of the competency of witness is contained in Art.3.But the rule
enunciated in Art.3 is not an absolute or flexible rule.

13)WHO MAY TESTIFY:

ARTICLE 3:

All persons shall be competent to testify unless the court considers that they are prevent
from

 understanding the question put to them,

 or from giving rational answers to those questions by
 tender year,
 extreme old age,
 disease,
 whether of mind or
 any other cause of the same kind:

I. Exception
a person shall not be competent to testify

 if he has been
 convicted by a court
 perjury or
 giving false evidence:

II. EXPLANATION:
A lunatic is not incompetent to treaty,unless he is presented by his lunacy
from understanding the questions put to him and giving rational answers to them.

14)QUALIFICATIONS FOR A WITNESS:

 Physically fit
  Competent to record evidence

 Capable of five senses

 Not debarred under Qazf

 Person of good reputation

 Having good motive behind it

 Having same religion as parties

 Must qualify Tazikiya-al-Shuhood

 Not debarred otherwise by court of law

15)DISQUALIFICATION:

Holy Prophet(SAW) HAS SAID:

“Three persons have been exempted:

 The minor he attains puberty

 The mad until he recovers

The sleeping person until he awakes.”

I. UNDER ARTICLE.3:
1. Unable to understand questions

2. Incapable of giving rational answers

3. Perjury and giving false evidence

4. Lunacy

5. Qazf

6. Existence of certain relationship or interest

7. Person known for his lying

16)COMPETENCY:
The competency of witnesses is as above:

CHILD WITNESS:
Under Article 3 a child can be competent witness. Before admitting or recording statement
of child, the court must testify that:

 The witness understand the question

 Ascertain in the best way it can, whether from the extent of his intellectual
capacity and understanding he is able to give a rational account of what he
has seen or heard or done on a particular occasion.

 If a person of tender years can satisfy these requirements, his competency as

a witness is established.

CASE LAW:

STATE VS.

FARMAN HUSSAIN SHAH

PLD 1995 SC 1

“Evidence of a child witness is a delicate matter & normally it is not save to rely upon unless
it is corroborated. It is rule of prudence. Great care is to be taken that in the evidence of
child element of coaching is not involved. As a rule the evidence of a child witness is not to
be relied upon unless corroborated.”

i. RATIONAL BEHIND THE TEST FOR THE TESTIMONY OF CHILD:

The rational for this is that it is common experience that a child witness is most suspectible
to tutoring. Both on account of fear and inducement, he can be made to depose about a
thing which he has not seen and once having been tutored, he goes on repeating in a parrot
like manner what he has been tutored to state. Such witnesses are most dangerous
witnesses.

2) LUNATIC WITNESS:
A lunatic is one that had understanding in intervals in which he is in his senses. He is capable
to give evidence
3)DEAF & DUMB:
Under Qanun -e- Shahadat Order a person who is deaf and dumb can also be competent
witness, provided that he understands the questions and capable of giving answers by
writing, signs or in any other manner in which he can make him self intelligible.

i. DIFFERENCE BETWEEN CHILD AND DEAF & DUMB WITNESS:

The case of a deaf and dumb differs from that of a child in the following two ways:

1) The deaf and dumb must understand the nature of an oath. The child need not to
understand it.

2) The deaf and dumb can give evidence by means of signs under Article 3.

4) CHANCE WITNESS:

CASE LAW:

2001 Cr.L.J.762

Testimony of a chance witness is not liable to an outright rejection as the courts can
accept his testimony provided the same is corroborated by others evidence. Chances

Do occur in life as the happening of the chances is integral with life and it is not a mere
impossibly. Facing the testimony of a chance witness, the court has to remain only alert to
look for corroborative evidence.
5) FEMALE WITNESS:

“Production of two female witnesses jointly is only necessary in case of financial matters or
future, obligations and not in criminal cases” as laid down PLD 2001 SC(AJ & K)1

6) INTERESTED WITNESS:

“An interested witness is one who has a motive for false implication of an accused
person” as laid down in PLJ 2001 SC 1531.

7) POLICE OFFICERS:

Where only witness are the police officers or other government employees such a officers

of Excise Department in a case falling under Prohibition (Enforcement of Hadd) Order, 1979
and they have no enmity with the accused, court may convict the accused on their evidence
as laid down PLD 1990 SC 1176.

8) FEMALE WITNESSES IN RAPE CASES:

In cases under Zina (Enforcement of Hudood) Ordinance, 1979 a female is much

qualified to appear as a witness in proceedings under section 10 of the Ordinance as is a
Male and the question of qualitative and numerical evidence indicated in section 8 and 9 of
the Ordinance should not govern the section 10 of the Ordinance.

9) HUSBAND EVIDENCE:

“The effect of Article 3 is to make a husband a witness for all purposes and his
evidence as to non-access is admissible in divorce proceedings.”
10) PROSECUTOR AS A WITNESS:
A police officer or advocate conducting a prosecution should never be sworn unless he is
called as a witness and so called he should be allowed to depose only to those facts, which
he knows and of which he is, in accordance with the provisions of the Qanun-e-Shahadat,a
competent witness.

11) WON OVER WITNESS:

NLR 2000 Cr.547 (DB)

“Abandonment of witness who had been won over would not at all effect the case of
prosecute which otherwise is fully proved.”

12) RESPECTABLE WITNESS:

1999 PLJ Cr. C Lah 17

“Evidence can not be discarded only on the ground that it does not belong to the locality.”

13) ACCUSED NOT A COMPETENT WITNESS:

Under subsection (2) of section 340, THE CODE OF CRIMINAL PROCEDURE, the accused has
been made a competent witness for the defense.

PLD 1983 FSC 173

14) COURT WITNESSES:

“Evidence of court rightly preferred by lower courts to evidence of prosecution
witnesses”

1974 SCMR 251

15) INDEPENDENT WITNESSES:

PLJ 1996 SCMR 251

“Witnesses not related to decease does not necessarily prove that he is a witness of truth
intrinsic words of his is the test of his veracity.”
16) NATURAL WITNESS:
“Natural witnesses are way-fares and not the residents of nearby a bodes when crime is
committed on the public path.”

1978 SCMR 114

17) SOLITARY WITNESSES:

1995 SCMR 1979

“Such witness is absolutely dependable.”

17) NUMBER OF WITNESSES:

ARTICLE 17:

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

(2) Unless otherwise provided by any law relating to Hudood or any other special
law.

(a) In matters pertaining to financial and future obligation, it reduced to writing the
instrument shall be attested by two men, and two women, so that may remind the other if
necessary ,shall be led accordingly, and

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

CASE LAW:

Maqsood Ahmed

Vs.
 Salman Ali

PLD 2003 SC 31

RATIO DECIDENDI:

“Attestation of instrument by two witnesses u/a 17(2) (a) Q.S.O was

mandatory.”

18) QUANTUM OF EVIDENCE:

1980 P.Cr.LJ 898

“It is not the number of witnesses which is important but the quality of the evidence which
is to be considered.”

19) Explanation:
(i) a) Financial Matters:
Minimum requirement of a evidence is either two males or one male and two females the
reason for requiring the evidence of two females is that if one forgets the other may remind
her if required as laid down in PLD 1995 LAH.395

HOLY QURAN SAYS:

“And call to witnesses from among your men, two witnesses.”(Al-Baqra: 282)

“And if two men be not (at hand) than a man and two women of such as you approve as
witnesses, so that one forgets the other will remember.”(Al-Baqra: 282)

(ii) b) Criminal Matters:

1991 P.Cr L.J 2576

“Art.17 does not require a particular number of witnesses for profit of a murder charge.
Quantity of witnesses certainly gives way to quality of witnesses are weighed and not
numbered.”

(iii) c) Hudood Cases:

1985 P.Cr.L.J 349
Where the case is tried under Hudood laws, the number of witnesses required to prove the
offence as provided in that Law is necessary. Otherwise even in rape cases no particular
number of witness is required for that fact and finding may be based on testimony of a
single witness.

(iv) d)Dacoity Cases:

1956 Cr.L.J.349

No hard and fast rule can be laid down that in every case of Dacoity, if there is identification
by only one person, that identification should never be expected. Every instance of
identification in the circumstances, which usually accompany a case foe Dacoity, has to be
rudged on the facts on that particular case presented by the prosecution and if after care
full scrutiny there was possibility of mistaken identificationor that the statement of the sole
witness was influenced by some other cause,the accused is entitled as a matter o course, to
the benefit of the doubt.

20) Preclude Remarks:

Article 3 of Qanun-e-Shahadat Order is not repugnant to injunctions of Islam. The general

rule enunciated in Section 3 is neither inflexible nor absolute.
Q. 15: primary and secondary evidence

1. Preface
Primary & Secondary Evidence In civil as well as in criminal cases, litigant parties are
required to produce evidences in support of their claims. Great caution and care is taken by
the law while admitting evidence produced by the litigant parties. It is carefully examined
that whether the evidence so produced is primary or secondary. As it is the evidence
produced before the court which is the key instruments in determining a fact in issue.
Document must be proved by primary evidence but in certain cases they can be prove by
secondary evidence as enumerated in Art.74,76 of the order where existence of original
documents was not in issue and same was not available, the only course available to trail
court was to allow secondary evidence. Secondary evidence can only be produced when
original was either lost or was not in custody of the party wishing to produce the same.

2. Relay Article

3. Lexical Meaning of Evidence

i. Statements, information, and things that are used to prove or disprove an alleged
fact.

ii. The available body of the fact or information indicating whether a belief or
proposition is true or valid. .

4. Lexical Meaning of Document

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

4.1. Documentary Evidence

Define in Qanun-e-Shahadat Order 1984

“ALL DOCUMENTS PRODUCED FOR THE INSPECTION OF THE COURT SUCH DOCUMENTS ARE
CALLED DOCUMENTARY EVIDENCE”
5. Lexical Meaning of Primary Evidence
Primary evidence means the documents itself produced for the inspection of the court.

5.1. Another meaning

a. Evidence such as the original of a document that by its nature does not suggest that
better evidence is available.

b. The term that is applied to the best evidence that is available.

6. Lexical Meaning of Secondary Evidence

a. Secondary evidence is that the evidence that is not best evidence there is but it will
be admitted to court if there is no primary evidence.

7. Types of Evidence
There are two main types of evidence

i. Primary evidence

ii. Secondary evidence

7.1. Primary Evidence

U/Article 73 QSO

“Primary evidence mean documents itself produced for the inspection of the court”

7.2. Secondary Evidence

U/Article 74 QSO

Secondary evidence means and includes –

1) Certified copy given under the provisions hereinafter contained;

2) Copies made from the original by mechanical processes which in themselves insure
the accuracy of the copy , and copies compared with such copies;

3) Copies made from or compared with original ;

4) Counterparts of documents as against the parties who did not execute them;

5) Oral account of the contents of a documents given by some person who has himself
seen it;

7.3. Some furtherance types of evidence

i. Real evidence
ii. Demonstrative

iii. Documentary

iv. Testimonial

v. Scientific Evidence

vi. Prima Facie Evidence

vii. Physical Evidence

viii. Exculpatory Evidence

ix. Digital Evidence

x. Testimonial Evidence

xi. Biological evidence

8. Approximate Range of Primary Evidence

Rely Article 73 QSO

In each case best available evidence should be produced primary evidence is the best or
highest evidence. It is kind of proof which in the eye of law affords the greatest certainty of
fact in question [2000 MLD 901] The Primary evidence of the contents of a document is the
document itself. The material evidence of a mortgage is the bond itself.

8.1. Scope of primary evidence

Each fact must be proved as well as criminal and civil in primary evidence. Primary evidence
is the best or highest evidence. Whereby documents must be prove by primary evidence
except in case therein mention.

8.2. Documents include are primary evidence

Some are document must be prove necessary in any case except in where law may give the
exception, documents mention hereinafter.

9. Definition of a Primary Source

Primary sources are firsthand documents that provide direct evidence on your topic.
i. Where several copies are prepared by inserting carbon papers between different
leaves each copy is as much primary evidence as the first copy. But it is to be noticed that
the whole documents with signature must have been made by one uniform process.

9.1. Types and Category of Primary documents

There are some category of primary evidence in eye of law and its value to

admissible in court.

Original Documents Creative Works Relics and Artifacts

Diaries Art works Pottery
Speeches Photographs Decorative arts
Correspondence Novels Clothing
Interviews Poetry Buildings
Manuscripts Music Textiles
Government Architectural Needlework
Documents drawings/plans
News film footage
Archival Materials
Autobiographies

28. 10. Approximate range of secondary evidence

Secondary sources discuss and analyze primary sources; they're called secondary sources
because they are at least one step removed from the primary source.

In short definition
“Something in particular documentation, which confirms the existence of unavailable
primary evidence ”
11. Secondary Evidence
Relay Article 74

Secondary evidence means and includes–

1. Certified copies given under the provisions hereinafter contained.

2. Copies made from the original by mechanical processes which in themselves insure
the accuracy of the copy, and copies compared with such copies.

3. Copies made from or compared with the original.

4. Counterparts of documents as against the parties who did not execute them.

5. Oral accounts of the contents of a document given by some person who has himself
seen it.

11.1. Illustrations
a) A photograph of an original is secondary evidence of its contents, though the two
have not been compared, if it is proved that the thing photographed was the original.

b) A copy compared with a copy of a letter made by a copying machine is secondary

evidence of the contents of the letter, if it is shown that the copy made by the copying
machine was made from the original.

c) A copy transcribed from a copy, but afterwards compared with the original, is
secondary evidence; but the copy not so compared is not secondary evidence of the
original, although the copy from which it was transcribed was compared with the original.

d) Neither an oral account of a copy compared with the original, nor an oral account of
a photograph or machine-copy of the original, is secondary evidence of the original.

12. Case in which Secondary Evidence may be given

Relay Article 76 QSO 1984

Documents must be proved by primary evidence except in the cases hereinafter mentioned.

Secondary evidence may be given of the existence, condition or contents of a document in

the following cases:

a) when the original is shown or appears to be in the possession or power- of the

person against whom the document is sought to be proved, or of any person out of reach
of, or not subject to, the process of the Court, or of any person legally bound to produce it,
and when, after the notice mentioned in Article 77 such person does not produce it;
b) when the existence, condition or contents of the original have been proved to be
admitted in writing by the person against whom it is proved or by his representative in
interest;

c) When the original has been destroyed or lost, or when the party offering evidence of
its contents cannot, for any other reason not arising from his own default or neglect,
produce it in reasonable time;

d) When due to the volume or bulk of the original, copies thereof have been made by
means of microfilming or other modern devices;

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

f) When the original is a public document within the meaning of Article 85

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

h) When the originals consist of numerous accounts or other documents which cannot
conveniently be examined in Court and the fact to be proved is the general result of the
whole collection;

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

13. Difference between both evidence

No. Primary Evidence Secondary Evidence

1 Primary Evidence is original
document which is presented to the
court for its inspection.
It is the main source of Evidence.
2
Section 72 of the Evidence Act
Secondary Evidence is the document
which is not original document but
those documents which are mentioned
in Section.73.
It is an alternative source of Evidence.
Section 73 of the Evidence Act defines
 3 defines Primary Evidence Secondary Evidence

Primary Evidence is the best Evidence Secondary Evidence is not best evidence
4 but is evidence of secondary nature and
is admitted in exceptional circumstances
mentioned in Section 73.

5 Giving Primary Evidence is general Giving Secondary Evidence is exception

rule. to the general rule.

6 Primary Evidence itself is admissible. Secondary Evidence is admissible in the

7 No notice required before giving
Primary Evidence.
8 The value of Primary Evidence is
highest.
absence of the Primary Evidence.
Notice is required to be given before
giving Secondary Evidence.
The value of Secondary Evidence is not
that of Primary Evidence

14. Scope of both Evidence

15. Applicable of both

Both in civil or criminal cases

16. Preclude
Q. 16: Dying Declaration

1. Preface
Article 46 (1) Qanun-e-Shahadat Order 1984 deals with dying declaration. General
presumption is that dying persons usually speak truth. And also ancient principle is “no one
on point of death should be presumed to be lying.”

2. Relay Article
Article 46 (1) of Qanun-e-Shahadat Order 1984

3. Meaning
Dying declaration means a statement by that person, who believes that death is imminent
especially when such statement relates to cause of circumstances of such person’s
impending death.

4. Definition
Statement by a person who believes that he near to die by some injuries inflicted on him by
some persons.

5. Form of Dying Declaration

A dying declaration may be made in following form

(i) (i) written

(ii) (ii) Oral

(iii) (iii) By Signals ( Signs and Gestures)

6. Person who may Record it
Following are the persons record the dying declaration

(i) Who can Record the statement

Anyone can the record declaration by the person likely to be die.

(ii) Statement recorded by magistrate

A magistrate can record dying declaration under section 164 of Cr.P.C.

(iii) Recording by Police officer

According to section 41 (1) of Qanun-e-Shahadat Order 1984, Police officer record the
statement during the court of investigation and police officer record statement admissible
in evidence with satisfaction of the court.

(iv) Recording by the Doctor

Doctor only record dying declaration in exceptional cases where he is firm that declarant is
lightly to be die.

7. Concept of Dying Declaration under Islamic Law

Dying declaration have great importance in Islamic Law. It is recognized principle in Islamic
Fiqha.

8. Essentials of Dying Declaration

Following are the essentials/ importance

(i) Voluntarily
The statement of a record must be true and voluntarily and made without any influence or
ill will.
(ii) Satisfaction of Court
It is a most important essential, the court easily decided that the declarant mind fit when
record a statement and he had a clear opportunity to observe and identify his assailant.

(iii) Competency
A dying declaration must be that of a person competent to testify as a witness. The child or
tender age is not admissible.

(iv) Statement must be complete

It is essential to the admissibility of statement that it must be complete. Cut short and
ambiguous form is not admissible.

(v) Statement must be causes to death

A dying declaration will not be admissible unless it is proved that the death of the
declaration was caused.

(vii) Death of Declarant

Before a statement is admitted as a dying declaration, it must be proved that the person
who made it is dead.

(viii) Admitted in case in which question of death arises

Dying declaration could be admitted in evidence in those cases only in which the causes of
the declarants death comes into question.

9. 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.

Exception
If dying declaration which is incomplete and partly touched-up by interested parties cannot
be relied upon.

10. Conviction on Dying declaration

An admitted principle is that dying declaration can be basis of conviction when it has not
only been duly proved, but has also has been admitted in evidence. For explanation of this
principle, following are the points.

(i) Essential Conditions

Dying declaration can be basis of conviction when it has fulfilled all essentials conditions.

(ii) Complete
Dying declaration can be basis of conviction if it is complete. It means that incomplete dying
declaration cannot be basis of conviction. Reason is that complete dying declaration never
reveals what deceased declaration intended to further state in his dying declaration.

(iii) True and Genuine

When dying declaration is true and genuine declaration, it can be basis of conviction. In fact,
conviction can be awarded on basis of dying declaration when dying declaration does not
suffer any infirmity.

(iv) Interested Parties

If interested parties improves dying declaration, such dying declaration cannot be made
basis of conviction.

11. 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,
 worthy of great weight.

12. 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.

16. Preclude Remarks

To conclude that Qanune-e-Shahadat Order 1984 explains that direct evidence is original,
positive and pregnant with first hand and fresh knowledge. Therefore, it emphasizes that
there should be direct evidence. It reveals that Qanun-e-Shahadat order does not allow
admission of hearsay evidence. However, dying declaration is an exception to principle
about hearsay evidence. Therefore, it can be admissible evidence and can also be basis of
conviction.
Q. 17: Identification Parade and its evidentiary Value

1. Preface
Objects of identification parade are to enable witness to identify these persons or things,
which are involved in commission of offence and which are not previously authority on
involvement of such person or things in commission of offence. Identification Parade is
related to those facts which are declared as relevant facts about place, name, person or
date. The conduct of an identification parade is part of the investigation and is held not as a
rule of law but as a rule of prudence to eliminate possibility of any mistake.

2. Relay Article
Article 22 of Qanun-e-Shahadat order 1984

3. Meaning
Identification Parade is identification of stranger offender, who is not previously known to
the witness.

4. Importance of Identification Parade

Identification parade is a procedure to identify the accused by the witnesses under the
custody of magistrate. It is admissible evidence in the court.

5. When identification parade should be conducted

Identification parade should be conducted at the earliest possible time because the witness
to indentify the accused easily, as by the lapse of time of memory may fade. Identification
parade held after 12 to 15 days loses its evidentiary value.
6. Who conducts identification Parade?
Identification Parade is conducted only by a magistrate having jurisdiction to do so.

7. Modes of conducting identification Parade

Identification Parade is conducted or carried out by modern devices of tape recorders,
cameras, videos, audios and maps or sometime the help animals like dog etc is taken.

8. Scope of Identification Parade

Identification parade is relevant both are civil as well as criminal cases.

9. Rules relating to identification Parade

Follow are the rules

(i) Time
Identification parade should be conducted at the earliest possible time.

(ii) Supervision
It is always supervised by a magistrate having jurisdiction to do so.

(iii) Place
It is conducted, generally, in jail or some other secured place.

(iv) Investigating officer

After beginning of identification parade, investigating officer or any police officer, who helps
investigating office, should not have any access to identifying witnesses.
(v) Complainant a witness

If the complainant is himself a witness, only then he can participate in the Parade.

(vi) Separation of witnesses from each other

For holding of identification parade, it is necessary that witnesses should be kept separated
from each other so that cannot share any information about accused.

(vii) Separation of witness from accused

It is most important for holding of identification parade that witness should be kept
separated from accused at some distance from place of deification parade that they cannot
see accused or other concerned person until they are called for identification parade.

(viii) Bringing of witnesses for identification

It is necessary that witnesses should be brought separately for identification parade.

(ix) Dummies
For one accused there should be a serial of 1-9 Dummies.

10. Evidentiary value of Identification Parade

Following two views to explanation

(i) Corroborative value

When witness deposes during identification parade that he has seen some of persons, who
are present in identification parade, on time, date and place of incident, it is considered that
such deposition has corroborative value.
(ii) Admissible Evidence
Another view is that identification parade can be substantive piece of evidence especially
when proper procedure is adopted for holding of identification and all legal requirements
are fulfilled.

11. Preclude Remarks

To conclude that the Identification Parade are held by the police in the course of their
investigation for the purpose of enabling witness to identify the property which is the
subject matter of the offence or to identify the person who is concerned in the offence. The
identification parades are held a rule of prudence to eliminate the possibility of any mistake
and not as a rule of law.
Q. 18: Kinds of Evidence Under Qanun-e-Shahadat Order 1984

1. Preface
Evidence is the most important part of procedural law. Term “evidence” has been derived
from Latin term, and this Latin term is evident or evidere, which means to show clearly, to
discover, to ascertain or to prove. Evidence refers to anything, which is necessary to prove a
certain fact. In short words, evidence is a mean of proof. There can be different kinds of
evidence.

2. Definition of Evidence
(i) According To Salmond
“Evidence may be defined as any fact which possesses probative force.”

(Bantham)
The testimony whether oral, documentary or real, which maybe legally received in order to
prove or disprove some fact in dispute.

(Phipson)

All the legal means exclusive of mere argument which tend to prove or disprove any fact,
the truth of which is submitted to judicial investigation.

(Taylor)

Any matter of fact, which is furnished to a judicial tribunal otherwise than by Reasoning, or
a reference to what is noticed without proof, as the basis of an inference to some other
matter of fact.

(Thayer)
Any knowledge, fact or group of facts, not a legal or logical principle, considered with a view
to its being offered before a legal tribunal for the purpose of producing a persuasion,
positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law,
or of logic, on which the determination of the tribunal is to be asked.
3. Meaning of Probative force
A probative force means the quality by virtue of which the Court presumed that one fact is
evidence of another fact.

Any species of proof or probative matter legally presented at the trail of an issue, by the act
of all parties and through the medium of witnesses, records, documents, exhibits, concrete
objects etc., for the purpose of including belief in the minds of the Court or jury as to their
contentions.

(Black's Law Dictionary)

^ Anything that provides material or information on which Preclude Remarks or proof may
be based on indication, information, given by witness in Court (oral), contained in the
document (documentary), or proved by things (real), used to prove or disprove the point at
issue or to arrive at truth.

(Webster's Dictionary)

4. Evidence includes
i. All statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact in inquiry, such statements are called oral evidence,
and

ii. All documents produced for the inspection of the Court; such documents are called
documentary evidence; (Qanun-e-Shahdat Order, 1984)

5. Evidence May Be

 Judicial and Extra-judicial

 Direct & Indirect
 Real & Personal
 Original & Unoriginal

1. Judicial &, Extra-judicial:

Judicial evidence is that which is produced directly before the Court It consists of all fact
which are actually brought before the knowledge and observation of the Court.
Extra-judicial evidence is that which, though does not come directly under the judicial
cognizance, but is an important intermediate link between judicial evidence and the fact
requiring proof.

2. Direct & Indirect:

Direct evidence has the following general rules;

i. His statement must be accepted as prima facie evidence of his possession of such
knowledge for their would be an infinite regress if this fact has to be proved by another
witness.

ii. The part against whom the testimony is given has a right to cross-examine the witness.

EXCEPTION
The only exception to this general rule is the testimony of an expert which may be based on
information derived from text books or what he learnt from other people.

Indirect or circumstantial evidence is that which relates to a series of facts ( sometimes

called evidentiary facts, factum probans, or fact relevant to the issue) other than the fact in
issue (sometimes called principal/act or factum probandum) but which are closely
connected with that fact in such a way that it leads to some definite Preclude Remarks. The
law requires that circumstantial evidence should be used with causation.

6. Various kinds of Evidence

Following are most prominent kinds of evidence

1. Original Evidence
Original evidence means production of documents in their original forms.

Explanation
Following points are important for explanation of original evidence

(i) Original evidence is, in fact, primary evidence.

(ii) Original evidence relates to documents

(iii) In most of cases, original evidence is given more importance over oral evidence.
(iv) Written documents, which can be public or private documents, are usually produced as
original evidence.

2. Un-original Evidence
Un-original evidence means production of copy of document in place of original document.

Explanation
Following points are important for explanation of un-original evidence.

(i) Secondary evidence

Un-original evidence is, in fact, secondary evidence.

(ii) Insufficient Evidence

Usually un-original evidence is considered insufficient evidence. Therefore, it is not relied
upon in most of cases. It is only relied upon when it is proved through other evidence that
production of original document has become impossible and therefore, its copy has been
produced.

(iii) When can un-original evidence be given?

Un-original evidence can be given when original document is not available or is lost or is
destroyed or is in possession of some person, who does not produce. There can also be
other reason due to which un-original evidence can be given.

3. Direct Evidence

Direct evidence means that evidence, which relates to real disputed question of case and
which is sufficient to determine responsibility.

(i) Direct evidence can be oral evidence. In fact, Qanoon-e-Shahadat Order has provided
that oral evidence should be direct in all cases.
(ii) Even direct evidence can be documentary evidence too.

(iii) Direct evidence is based on personal knowledge or observation.

(iv) Direct evidence cannot be based in inference or presumption.

4. Real Evidence
Real evidence usually takes from of some kinds of material object, which is produced be
before court.

Explanation
Following points are important for explanation of real evidence

(i) Material or physical evidence

Real evidence is also termed as material or physical evidence.

(ii) Purpose of Real evidence

On purpose of real evidence can be to prove existence of some material object and real
evidence can be to make inference about use of some material object in commission of
some offence. And also to prove presence of any material object at some place or
possession of some person can be purpose of real evidence.

5. Circumstantial Evidence
Circumstancial evidence means that evidence, which is based on inference and which is not
based on personal knowledge or observation.

6. Personal Evidence
When some person himself sees any incident or situation and gives statement about it in
court, such statement is called personal evidence.
7. Preclude

it can be stated that concept of evidence is an old concept. Inquisitorial principle and
adversary principle played important role in development of concept of evidence. According
to inquisitorial principle, judge was to search for facts, listen to witnesses and experts,
examine documents, and order to take evidence. Contrary to this, parties and their counsels
are primarily responsible for finding and presenting evidence and judge does not investigate
facts according to adversary principle.
Q. 19: Plea of Alibi

1. Preface
Plea of alibi is that form of defense through which accused attempts to prove that he was in
some other place at the time when alleged offense was committed. In fact, criminal’s laws
have provided accused different defenses to prove his innocence against accusation. No-
doubt, plea of alibi is one of such defenses. However, plea of alibi is considered different
from all of other such defenses.

2. Relay Article
Article 24 of Qanun-e-Shahadat Order 1984

3. Meaning of Plea Alibi

Alibi is Latin World, which means elsewhere. And plea of alibi means that accused was
physically not present at time of scene of offence because he was present at another place.
In fact, if accused suggests to court that he was some where else at time of commission of
alleged offence, such suggestion is called plea of alibi.

4. Definition of Plea Alibi

“The plea of absence of a person accused from the place of occurrence, at the time of the
commission of the offence is called the plea of Alibi.”

5. Essentials of Plea of Alibi

(a) Who may taken plea of Alibi
A person taking Plea of Alibi must be accused of an offence.

(b) Absence of accused at place where crime was committed

He must plead his presence elsewhere, at the time of the commission of alleged offence.
(c) Covering of Entire time
It should be impossible for him to reach the place of occurrence at the time of commission
of offence. Therefore plea should be cover the whole time of the alleged offence.

(d) Raised at earliest opportunity

The plea of Alibi must be raised by accused at the earliest possible time.

6. Explanation of Plea of Alibi

Explain through following points

(a) Physical impossibility of accused

Plea of alibi can only be taken when such plea postulates physical impossibility of accused’s
presence at scene of offence due to his presence at some other place.

(b) Time to raise Plea of Alibi

Plea of alibi should be raised at the earliest time.

(c) Evidence to prove Plea of Alibi

Plea of alibi is considered the weakest type of plea. Therefore, cogent, convincing and
plausible evidence is needed to prove it. It reveals that plea of alibi should be supported by
strong evidence.

(d) Burden of Proof

Under Article 119, it is established rule of of evidence that burden of prove plea of alibi is on
the accused which is to be proved in accordance with law, and the plea fo alibi must be
proved with absolute certainty so as to completely exclude the presence of the person
concerned at the time when and the place where the incident took place.
(e) Quantum of Proof
The quantum of proof required to prove a plea of alibi various from case to case. Sometime
the accuse taking plea of alibi need not to strictly prove meaning thereby more creation of
doubt in the mind of court is sufficient. But most cases the accused has to strictly prove his
plea.

(f) Absence and Presence

To prove his innocence against accusation, accused is required to raise reasonable question
about his absence in place of offence at time of commission of offence and about his
presence in some other place at such time. In this way, he is to raise reasonable doubt in
mind of court about his participation in commission of offence to get benefit of such doubt
against accusation.

(g) Non access of Husband

Since legitimacy of a child implies a begetting by the husband. In order to prove illegitimacy
it would be relevant to prove, that the husband had no access to the wife at the probable
time of begetting.

(h) Consideration of whole Evidence

In case of plea of alibi, court is considering the whole evidence to make any Preclude
Remarks about guilt or innocence of that accused, which makes plea of alibi.

7. Preclude Remarks

To conclude, that honorable Apex Courts have explained two important principles about
plea of alibi. Among these principles, one principle is that guilt cannot be inferred from
making of false plea of alibi. And other principle is that accused cannot take benefit through
plea of alibi when reasonable doubt is not created in mind of court about accused’s
participation in commission of offence.
Q. 20: Leading Question

1. Preface
A leading is a questions, framed in such a manner that if throws a hint as to, or suggests
directly, the answer which the examiner desires to elicit from the witness. Therefore,
questions should be put to him about relevant facts and then he should be given the fullest
freedom to use his personal knowledge to answer these questions.

2. Relay Article
Article 136 to 138 of the Qanun-e-Shahadat Order 1984.

3. Definition of Leading Questions

Any question, which suggests that answer, which person, who puts it, wishes or expects to
receive, is called a leading question.

4. Questions Regarded as Leading Questions

Following are the questions which regarding as leading questions

a. Questions Assuming a controverter fact

A question is leading, where the question assures any fact which is in controversy so that
the answer may really or apparently admit that fact.

b. Questions calling for answer Yes or No

A question admitting of being answered by a simple “Yes” or “No” is regarded as generally a
leading question.
c. Alternative Question
A questions is an alternative from e.g the question “Di you or did you not refuse” does not
admit of an answer by a simple Yes or No weather question in this form is leading or not
depend upon whether it does or does not suggest any particular answer.

5. When should Leading Questions not be asked?

The following points are important to explain it under Sec 137 of the Qanun-e-Shahadat
Order 1984

a. Examination-in-Chief or Re-examination
According to article 137 of the Qanun-e-Shahadat order 1984, the leading questions can not
be asked in examination-in-chief or re-examination but this article also described some
exceptions.

b. Objection of Adverse party

It is a right of adverse party should arise objection against asking any leading question. In
fact, It has been provided in Qanun-e-Shahadat that leading questions cannot be asked in
examination-in-chief or re-examination when adverse party object such question.

c. Exception
An exception also be provided that leading question can be asked when court permission to
asked leading question during examination-in-chief or re-examination. But, if opposite party
objects, then court can decide matter and can exercise its discretion either to permit a
leading questions or disallow it.

29. 6. When Court can permit Leading Questions

Under the following circumstance, court can permit leading questions

a. Introductory matters
A witness may be asked about matter preliminarily to the main topics of controversy e.g
witness’s name, age, residence etc.

b. In undisputed matter
A leading question may be asked in examination in chief in undisputed matter’s to being the
witness, as soon as possible, on the material points on which he is to speak counsel may
lead him a non to that length may tell him the acknowledged facts of the case which have
been already established.

c. Proved matters
Court can permit to asked leading in examination in chief or re-examination when court
opines that the mater already sufficiently proved.

7. When Leading Questions may be asked

The leading questions may be asked in Cross-examination.

a. Examination-in-Chief
The leading questions can be asked in examination-in-chief if court permit to asked leading
questions.

b. Re-examination
If court permits leading questions, party, when calls some witness, can asked leading
questions to such witness during re-examination.

8. Preclude Remarks
To conclude, it can be stated that examination includes examination-in-chief, cross-
examination and re-examination, and examination-in-chief, cross-examination and re-
examination all make one statement. Basic purpose of such statements to extort truth so as
to dispense complete justice. However asked of leading questions in examination-in-chief or
re-examination can defeat this purpose. Due to this reason, it has been provided that
leading questions should not be asked in examination-in-chief or re-examination.
Q. 21: Public and Private Documents in QSO 1984

1. Preface
Evidence have great important in both civil and Criminal cases and major part of procedural
law. Evidence is a mean of proof. There can be different kinds of evidence. Among these
kinds, two major kinds of evidence are oral and documentary evidence. Sometimes
evidence is established by producing or presenting documents before the court. The
document so produced for the inspection of the court, is called documentary evidence. Two
types of documentary evidence, first is public documents and second is Private documents.

2. Relay Article
Articles 85 to 89 of Qanun-e-Shahadat Order 1984

3. Definition of Document
A document may be defined as “Document is any written things capable of being evidence”
IT is immaterial on what the writing may be inscribed.

4. Public Document
The definition of Public documents does not define in Qanun-e-Shahadat Order 1984, it only
provides a number of list of documents which are called public documents. So, following
documents are considered public documents.

i. Sovereign authority
Documents, which are about act or records of act of sovereign authority (such as statutes,
gazettes, proclamations and the like) are public documents.
ii. Official bodies and Tribunals
Documents, which are about acts or records of acts of official bodies and tribunals (such as
records of courts of justice, Judgments, decrees, writ, warrants, bill etc) are public
documents.

iii. Public officers

Documents, which are about acts or records of acts of public legislative, judicial and
executive officers of any part of Pakistan or some foreign country, are public documents.

iv. Public Records of Private documents

When some documents are public records of private documents and these public records
are kept in Pakistan, such public records are public documents.

v. Documents forming part of Judicial Proceedings

All the documents forming part of the records of judicial proceeding are regarded as public
documents. Documents which were not copies of judicial record shall not be received in
evidence without proof of signatures and handwriting of a person alleged to have signed or
written them.

vi. Maintenance of documents by Public Servant

Documents, which some public servant is to maintain under any law (like Municipal register
of death and birth) are a public documents.

vii. Registered Documents

Registered documents are public documents when their execution is not disputed.

Viii. Certificates
Certificates are public documents when such certificate is deposited in a repository
according to provisions of Electronic Transactions Ordinances, 2002.
5. Proof of Public Documents
Public documents may be proved by either ways,

By production of certified copies under Article 88 of Q.S.O 1984

The contents of the public documents or parts of the public documents may be proved by
the production of certified copies. And other ways to mentioned in Article 89 of Q.S.O 1984.

6. Private Documents

The Q.S.O does not define the term “Private document” It only indicates that the
documents which are not public documents are private documents.

In the eye’s or Article 86, Private documents simply define “Any documents prepared by any
person or group of persons in his individual or collective capacity, is called a Private
Documents.

Examples of Private Documents

Contract of sale, lease, mortgage deeds, power of attorney, etc. are some examples of
private documents.

7. Proof of Private documents

Private documents can be proved either by the production of the original itself or by its
copy. But the copy of private documents is only admissible in the evidence under the
circumstances mentioned in Article 76 of the Q.S.O 1984 and not otherwise.

The proof of Private documents is subject to the general provisions of the act relating to the
proof of documentary evidence contained in Article 82 to 84.
8. Preclude Remarks
To conclude, it can be stated that an important principle of law of evidence is that
documents speak more truth than men. Therefore, documentary evidence is preferred over
oral evidence, and as far as public and private documents are concerned, public documents
are preferred over private documents.
Q. 22: Expert Opinion or Witness

1) Preface :
The general rule is that opinion of a witness on a question, whether of fact or law
is irrelevant. Opinion of expert (third person) is relevant as an exception to this general rule.
These are the parties not directly or indirectly connected in any manner to the suit or
proceeding which is pending in the court, but they are called by the Court to assist the
Court, when the Court cannot form the judgement himself. the provisions relating to
"opinion of experts/ third person when relevant.,

2). Relay Article

59 to 65 QSO 1984

3) Who is Expert?

An expert is a skillful professional in a particular field capable of possessing specialized

knowledge concerning the matter in issue, which a common man cannot possess.

4) Definition of opinion of Experts :

defines Opinions of experts as, "When the Court has to form an opinion upon a point of
foreign law, or of science, or art, or as to identity of hand writing or finger-impressions, the
opinions upon that point of persons specially skilled in such foreign law, science or art, or in
questions as to identity of handwriting or finger impressions, are relevant facts. Such person
called experts.

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

(c) The question is, whether a certain document was written by A. Another document is
produced which is proved or admitted to have been written by A. The opinion of experts on
the question whether the two documents were written by the same person or by different
persons are relevant.

The expert witnesses are the persons who have not seen a commission of a
particular act and they are not personally interested in the suit or proceeding but they are
called upon to help the Court pf law.

5) Relevancy of Opinion :

i) Opinion of examiner of Electronic Evidence

When in a proceeding, the court has to form an opinion on any matter relating to any
information transmitted or stored in any computer resource or any other electronic or
digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of
the Information Technology Act, 2000 (21 of 2000), is a relevant fact.

Explanation - For the purposes of this section, an Examiner of Electronic Evidence shall be
an expert.

ii) Facts bearing upon opinions of experts

Facts, not otherwise relevant, are relevant if they support or are inconsistent with the
opinion of experts when such opinions are relevant.

Illustrations :
 (a) The question is, whether A was poisoned by a certain poison. The fact that other
persons who were poisoned by that poison, exhibited certain symptoms which experts
affirm or deny to be the symptoms of that poison, is relevant.

iii) Opinions as to handwriting, when relevant

When the Court has to form an opinion as to the person by whom document was
written or signed, the opinion of any person acquainted with the handwriting of the person
by whom it is supposed to be written or signed that it was or was not written or signed by
that person, is a relevant fact.

Explanation –

A person is said to be acquainted with the handwriting of another person when he

has seen that person write, or when he has received document purporting to be written by
that person in answer to documents written by himself to under his authority and
addressed to that person, or when in the ordinary course of business document purporting
to be written by that person have been habitually submitted to him.

Illustrations :

The question is whether a given letter is in the handwriting of A, a merchant in

London. B is a merchant in Calcutta, who has written letters addressed to A and received
letters purporting to be written by him. G is B’s clerk, whose duty it was to examine and file
B’s correspondence. D is B’s broker, to whom B habitually submitted thee letters purporting
to be written by A for the purpose advising with him thereon.

The opinions of B,C and D on the question, whether the letter is in the handwriting of
A, are relevant though neither B, C or D ever saw A, write.
iv) Opinion as to digital signature when relevant

When the Court has to form an opinion as to the "digital signature" of any person, the
opinion of the Certifying Authority which has issued the Digital Signature Certificate is a
relevant fact.

v) Opinion as to existence of right or custom when relevant

When the Court has to form an opinion as to existence of any general custom or right,
the opinions as to the existence of such custom or rights, of persons who would be likely to
know of its existence if it existed, are relevant.

Explanation –

The expression “general custom or right” includes customs or right common The Orient
Tavern any considerable class of persons.

Illustration

The right of the villagers of a particular village to use the water of a particular well is a
general right within the meaning of this section.

vi) Opinion as to usage’s, tenants, etc., when relevant

When the Court has to form an opinion as to - the usage’s and tenants of any body of
men or family, the constitution and government of any religious or charitable foundation, or
the meaning of words or terms used in particular districts or by particular classes of people,
the opinions of persons having special means of knowledge thereon, are relevant facts.
vii) Opinion on relationship, when relevant

When the Court has to form an opinion as to the relationship of one person to another,
the opinion, expressed by conduct, as to the existence of such relationship, or any person
who, as a member of the family or otherwise, has special means of knowledge on the
subject, is a relevant fact:

Illustrations

(a) The question is, whether A and B were married. The fact that they were usually
received and treated by their friends as husband and wife, is relevant.

(b) The question is, whether A was the legitimate son of B. The fact that A was always
treated as such by members of the family, is relevant.

viii) Grounds of opinion when relevant

Whenever the opinion of any living person is relevant, the grounds on which such
opinion is based are also relevant. Illustration An expert may give an account of experiments
performed by him for the purpose of forming his opinion.

6) Evidentiary Value of Expert Opinion/ Admissibility of

Expert :

According to Law ofEvidence Act, before a person characterized as an expert,

it is necessary that there must be some material on record to show that he is skilled in
particular science and is possessed of a particular knowledge concerning the same.

He must have special study of the subject or acquired special experience therein.

Thus testimony of witness becomes admissible, his competency of an expert must be

shown, may be,

by showing that he was possessed of necessary qualification or that he has acquired special
skilled therein by experience,

It is for judge his expatriation of the particular subject.

7). Preclude
Q. 23

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."

Q. 24
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.
 ‫آپ سب کی دعاؤں کا ہمہ وقت طلب گار‬

‫لیکچرار‪ :‬مــبشراقبال‬
‫ایڈووکیٹ ھائی کورٹ‬
‫‪LL.B, LL.M, MSC, Dipl Communication Skills‬‬

‫آفس‪ :‬فاطمہ اینڈ اقبال الء چیمبر الھور‬

‫ایڈریس‪ :‬ھجویری ٹاور بیسمنٹ ‪ 01-B‬چوبرجی چوک‬
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