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THE
Qanoon-e-Shahadat Order
20th October 1984
[20th October 1984]

Q No.1- When Qanun-e-Shahadat Order was enacted?

Ans: It was enacted on 20th October 1884.

Q No.2- The Rule of evidence are in general the same in civil and criminal proceedings
what are exceptions to that rule?
Ans: The Qanun-e-Shahadat applied to all judicial proceedings in or before any Court. It
is not applied to proceedings, which are not judicial. The term judicial proceeding is not
defined by the QS Order of which evidence is or may be legally taken on oath.

An enquiry is a judicial if the object of it is to determine a judicial relation between one

person and another group of such an object in which is not acting judicially.

General Rules:- The Rules of evidence are in general the same in civil and criminal
proceedings and bind alike state and subject, prosecutor and accused, plaintiff and
defendant, counsel and client. There is no difference between the rules of evidence in
civil and criminal cases.

The exception to the rule:- There are, however some exceptions, for instance, 1. the
doctrine of estoppels applies to civil proceedings only, similarly rules of 2. Admission as
laid down in Article 31-33 and 3. those relating to the character as laid down in article 66
applies to civil cases only. The provisions relating to the confession as laid down in
articles 37 to 43, the character of persons appearing before courts as laid down in articles
67 & 68 and incompetence of parties as witnesses are peculiar to the criminal
proceedings.

Q No. 3- Define Evidence?

Ans: The Word evidence is derived from the Latin word “Evidence” which means to
show clearly to make clear to the sight, to discover clearly and to ascertain or to proof.

Q No.4- Specify and explain various divisions of evidence?

Ans: Direct Evidence: It is a testimony of a witness to the existence or non-existence of
the fact or fact in issue evidence of the fact in issue is generally known as direct evidence.

A-1. Indirect or circumstantial Evidence:- Circumstentional evidence is that which tends

to establish the fact in issue by proving another fact.

A-2. Personal Evidence:- It is the evidence which is afforded by a human agent either in
the way of discourse or by voluntarily sings.

Eg: Oral testimony of a witness.

B-1. Original Evidence:- Original evidence is that evidence which a witness report
himself to have seen or heard through the medium of his sense.

B-2. Hearsay Evidence:- Unoriginally or derivative, second hand or hearsay evidence is

that which a witness is merely reporting not what he saw or heard, not what has come
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under the immediate observation of his bodily senses but what he has learnt respecting
the fact through the medium of the third person. It is a statement made by a witness of
what has been said and declared out of Court by a person, not before the Court.

C-1. Primary evidence:- Primary Evidence means documents itself produced for the
inspection of Court article 73 of QSO.

C-2. Secondary Evidence: It means inferior or substation evidence which itself indicates
the existence of more sources of information 74 of QSO.
Eg. Certified Copy, copies through a mechanical person, compare copies, counterparts,
an oral account of a document by a person who saw it.

D-1. Oral or Parole evidence:- Oral evidence is evidence of fact brought to the
knowledge of the Court by the verbal statement of a witness qualified to speak on the
point he testifies to.

Note:- Oral evidence must be direct Article 70, 71 of QSA.

D-2. Documentary Evidence:- It is evidence of fact brought to the knowledge of the

Court by inspection of documents produced before the Court.

E-1. Judicial evidence:- It is evidence received by the Courts of justice in proof or

disproof of facts, the existence of which comes in question before him.

E-2. Non-Judicial Evidence:- Evidence given in the proceedings before a Magistrate or

officer, not in judicial capacity but an administration one is non-judicial evidence.

Eg:- Statement U/s 164 Cr.P.C recoded by Magistrate.

Q No. 5- Who is a competent witness? Article 3

Ans:- All the persons shall competent to testify unless the Court considers that they are
prevented by understanding the question put to them or from giving rational answers to
those questions, by tender years, extreme old age, decease, whether of body or mind or
any other cause of the same kind.

Note:-
A Lunatic is not incompetent to testify unless he is prevented by his lunacy from
understanding the questions put to him and giving rational answers to them.

Child Witness:- Under Article 3 child can be a competent witness if he understands the
question and gives rational answers to them what the law requires is not the factor of age
but the intelligence. [1998 PCrLJ 1680].

Deaf and Dumb:- A person who is deaf and dumb can also be a competent witness
provided that he understands the question and is capable of giving answers by writings,
signs or in any other manner in which he can make himself intelligible.

Q No.6- Distinguish between competency to give evidence and comparability to give

evidence?
Ans: By competency to give evidence mean that there is no legal bar against the person
concerned to testify in Court. By comparability to give evidence is meant compulsion to
depose, a certain class of persons can not be compelled to give evidence, not because
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they compete to so but because the public policy and interest of justice so require for
instance. A Judge or Magistrate can not be compelled to answer any question as to his
conduct in Court as such as to anything which came to his knowledge in Court as such
Judge or Magistrate. They are competent to testify and there is no legal bar against giving
evidence but there is privileged granted to them in the interest of public policy which
may or may not is involved by them.

Q No.7- What is the privilege of a witness and what is privileged communication?

Ans: The privilege of a witness means the right of a witness to withhold evidence to
disclose certain matters. Article 4 to 9.

Privileged witnesses:-
1. Judges and Magistrates.
2. Public Officers in case of public interest communications.

Privilege communication:-
1. Communication during the marriage, Article 5.
2. Evidence as to affairs of state, Article 6.
3. Official Communication, Article 7.
4. Information as to the commission of offences, Article 8.
5. Professional communication, Article 9.
6. Confidential communication with a legal advisor.

Q No. 8- State the privileges of a witness as regards the production of documents in

Court?
Ans:
1. Production of the title deed of a witness, not a party.
2. Production of documents which another person having possession could refuse to
produce.

Duty of the witness, Summoned to produce documents:-

A witness summoned to produce a document shall if it is in his possession or power bring
it to Court, any objection which there may be to its production or its admissibility. The
validity of any such objections shall be decided by the Court U/a 158.

Q No. 9- who is an accomplice? Is he be competent?

Ans: The word accomplice has not been defined in QSO and should, therefore, be
presumed to have been used in its ordinary sense.

An accomplice means a guilty associate or partner in crime or who make admissions of

the fact showing that he had ____________ in the offence.

An accomplice confesses himself a criminal who had been concerned in the commission
of a crime “Participates Criminis” whether he is concerned in the strict sense of having
indirect hand.

Competency as a witness:- An accomplice shall be a competent witness against an

accused person “and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice, the evidence of accomplice through it is
uncorroborated far form the basis for conviction.

Q No. 10- What is the identification parade, give its value?

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Ans: The mere fact that witness can pick out an accused person from among a crowd
does not prove that he has identified that accused person as having taken part in the
crime. It merely means that the witness happens to know that accused persons.

The principal evidence of identification is the evidence of a witness given in a Court as to

how and under what circumstances he came to pick out a particular accused person and
the details of the part played by him, the statement made by such witness at an
identification parade might be used to corroborate his evidence given in Court but
otherwise, the evidence of identification parade can only be hearsay.

Q No.11- What is res-gastae?

Ans: The term res-gastae may be defied as those circumstances which are the automatic
and undersigned incidents of a particular litigator’s act and which are admissible when
illustrative of such act.

Q No. 12- Under what circumstances facts which are not relevant become relevant?
Ans:
Facts not otherwise relevant are relevant:-
1. If they are inconsistent with any fact in issue or relevant fact.
2. If by themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable.

Q No. 13- Evidence must be confined to matters in issue, what are the exceptions to this
rule?
Ans: General Rule is that evidence must be confined to matter-in-issue. But has ever this
rule subject to certain exceptions as provided U/a 19 to 24.

1. Relevancy of facts forming part of the same transaction, Article 19.

2. Facts which are the occasion, cause or effect of facts in issue, Article 20.
3. Motive, preparation and previous or subsequent conduct, Article 21.
4. Facts are necessary to explain or introduce relevant facts, Article 22.
5. Things said or done by a conspirator, Article 24.
6. Facts not otherwise relevant become relevant, Article 24.

Q No. 14- Define admission? Who were the persons by whom admissions can be made?
Distinguish between Admission and estoppel and Admission and confession?
Ans: Article 30, Admission is defined as “An admission is a statement of fact, oral or
written which waves or dispenses with the production of evidence by considering that the
fact asserted by the opponent is true.

Different between Admission and an Estoppel:-

1. Admission is a statement of fact oral or written asserted by the opponent is true,
while estoppel is a rule of evidence which precludes from contradicting his former
representation or conduct.
2. An Estoppel binds only parties while admission is taken advantage of in certain
circumstances by strangers.

Different between Admission and confession:-

Confession is a statement made by an accused person which is sought to be proved
against him in a criminal proceeding, while admission is usually applied to a
Civil/transaction in comprises all statements amounting to admission.
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Who can record admission:-

1. Party to proceedings or his agent, Article 31.
2. Admission by persons whose position must be proved as against party to suit,
Article 32.
3. Admission by persons expressly referred to by party to a suit, Article 33.

Q No. 15- What is confession?

Ans: Relevant provisions:
➔ Chapter No. 13, Rule 1, 2, 3, 4, 5, 6, 7, 7A, 11, 12, 13 of High Court
Rules.
➔ Section 164, 364 & 533 Cr.P.C
➔ Appendix 25, 27 Rule 1 to 7, 11 & 12 of Police Rules 1934 Volume III.
➔ Qanun-e-Shahadat Article 37 to 43.
➔ Confession is a statement of an accused person in which he admits his
guilt.

Kinds of confession:-
1. Judicial Confession
2. Extra-Judicial Confession

1. Judicial confessions are those confessions which are recorded by a Magistrate or a

Court.

2. It is a confession which is neither recorded by Magistrate nor by Court, but any other
but not by police officer except in the case provided in A. 40 of QSA.

Judicial confession is a strong piece of evidence and solely can be a basis for conviction
but to rule of prudence corroboration is necessary whereas extra-judicial confession is an
evidence of weakness type.

Q No. 16- What is Retracted confession?

Ans: Retracted means act of taking or drawing back or retract means withdraw, take
back, retreat, drawback, pull back.

A retracted confession is a confession subsequently resiled from.

Q No. 17- What is a dying declaration?

Ans: Article 46 of QSA:- Dying declaration is such a statement which a person has made
before his death about the cause and circumstances of his death. Dying declaration is also
an exception to the rule of hearsay evidence.
The dying declaration will carry weight if it is free from foreign influence and animosity
between makers of statement and the accused.

Q No.18- What is judgment in a Ram and judgment in Personam?

Ans: Article 55:- Judgment in Ram is that judgment which binds all men and not only
parties to the suit in which it was passed. Whereas judgment in personam or inter parties
is an ordinary judgment between the parties in cases of contract, tort or crime.

Q No. 19- Who is an expert or and where are the opinion of third persons relevant?
Ans: Article 59 explains as an expert is a person who has devoted time and study to a
special branch of learning and has especially skilled in science, art, foreign law and
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questions as to the identity of handwriting or finger impressions on whether he is asked to

state his opinion.

When the opinion of third-person relevant:-

1. When the Court has to form an opinion upon a point of foreign law, science, art as to
the identity of handwriting or finger impression the opinion upon that point of persons
specially skilled and that opinion of a skilled person relevant.

2. When the Court has to form an opinion as to the existence of any general information
or right the opinion as to be the existence of such issue of person becomes relevant under
Article 62.

3. When the Court has to form an opinion as to the existence of 1. The usages and tenants
of any body of a man or family, 2. constitution or government of any religious or
characterizable foundation, 3. the meaning of words or terms if used in a particular
district or by particular claims of people, the opinions of the persons having special
means of knowledge or relevant u/a 63.

4. When the Court has to form an opinion as to the relationship between such persons, the
opinion expends by contact as to the existence of such relationship, the persons having
special means of knowledge, whether is a member family or otherwise is relevant article
64.

Q No. 20- Define Documents, what are methods of proving documents define and
distinguish between primary and secondary?
Ans: Document means any material, matter expressed or described upon any substance
using letters, figures, marks, intended to be used or which may be used to record that
mater.

Method of Proving a document:

1. By producing a document itself, Article 73.
2. by an oral account of the contents of a document given by a person who had seen the
document in cases where the better evidence is not available.

Primary Documents/Evidence:-
Primary Evidence means documents itself produced for the inspection of Court article 73
of QSO.

Secondary Evidence: It means inferior or substation evidence which itself indicates the
existence of more sources of information 74 of QSO.
Eg. Certified Copy, copies through a mechanical person, compare copies, counterparts,
an oral account of a document by a person who saw it.

Q No. 21- What are Public and Private documents?

Ans: The term public document define U/A 85 of QAS includes:-
1. Documents forming any act or records of the act.
a) A sovereign Authority.
b) The Official bodies or tribunals.
c) Of public officers, legislators, Judicial and executive of any part of
Pakistan or the commonwealth or a foreign country.
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2. Public records kept in Pakistan of Private documents. In other words, any

documents or record evidencing or connected with the public business or
administration of public affairs preserved or issued by.

Private documents:- Those documents which are not declared as public documents are
private documents.

Q No. 22- What is estoppel? Give its kinds?

Ans: Estoppel is a rule of evidence which precludes a party from gainsaying the truth to
ascertain facts, the rule of estoppel is laid in Article 114 of QSA.

Essentials:- 1. There must have been some declaration act or omission on the part of one
person intentionally causing another person to believe a thing to be true.
2. The person to whom the representation is made must believe the thing to be true.
3. There must be an act in pursuance of that belief.

Kinds:
1. Estoppel by deed:- It binds the parties to instrument and those claiming through
them to its statement.
2. Estoppel by conduct or pais:- A person must by word or conduct induce another
to believe that certain state of things exists and to cause that other person to act on
that belief which he otherwise would not have done.
3. Estoppel by the record or by judgment:- It results from the judgment of a
competent Court. It is chiefly concerned with the effect of judgment and its
admissibility in evidence.

This kind of estoppel is R/w Section 24 to 27 CPC and 54 to 58 QSO.

Differentiate Estoppel and Res-Judicata:-

1. Estoppel is based on the principle of equity which res-judicata rests upon rule of
public policy that there should be an end to litigation.
2. Resjudicata acts the jurisdiction of the Court while estoppel does not more than
shut the mouth of the party.
3. Estoppel is not ruled of substantive law while resjudicata prohibits the Court from
inquiring a matter already adjudicated.

Estoppel and Waiver:-

1. Estoppel is not a cause of action whereas waiver is a cause of action.
2. Estoppel is a rule of evidence while the waiver is not.

Q No. 23- What is mean by the burden of proof?

Ans: Responsibility or duty to prove a fact, Article 117 of QSO.

Q No. 24- Examination in chief, Cross-Examination & Re-Examination?

Ans: Article 132 defines Examination in chief as Examination of a witness by the party
who calls him.

Cross-Examination is the examination of a witness by the adverse party and the re-
examination is the examination of a witness after cross exams by the party who call him.

Q. No. 25- Define leading questions, when asked and when not?
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Ans: Leading question is one which admits an answer in yes or no. leading questions
always suggest the answer as well. Article 136 of QSO defines the leading question as
“Any questions suggesting the answer which the person putting it wishes to or excepts to
receive is called the leading question.

When Asked:- Article 138 provides that leading question may be asked in cross-
examination to test the accuracy, credibility and to lift the already stated by the written or
to elicit the facts in support of his case.

When not asked:- Article 137 provides that leading question can not be asked during
examination in chief or re-examination if the adverse party objects it.

The exception to Rule 137:- General Rule is that no leading question can be asked during
examination in chief or reexamination subject to certain exceptions:
1. Permission of Court
2. Introductory matters
3. Undisputed matters
4. Matters sufficiently proved
5. Hostile witness
6. Witness wanting in understanding
7. To develop witness’s testimony
8. To facilitate witness’s introductions of the subject of inquiry

Q No. 26- Who is a hostile witness?

Ans: According to article 150, a hostile witness is one who from how he gives evidence
shows that he is not desirous of telling the truth to the Court (1984 SCMR 560).