The
Qanun-e-Shahadat Order, 1984
[P.O. NO. 10 OF 1984]
____________
[P.O. NO. 10 OF 1984]
____________
[Gazette of Pakistan
28th October, 1984 ,
pp. 587-642]
No.
F. 17 (2)/84-Pub. --- The following Order made by the President on the 30th
Muharram-ul-Haram, 1405 (26th
October, 1984 ), is hereby published for general information: ---
WHEREAS
it is expedient to revise, amend and consolidate the law of evidence so as to
bring it in conformity with the Injunctions of Islam as laid down in the Holy
Quran and Sunnah;
NOW,
THEREFORE, in pursuance of the Proclamation of the fifth day of July, 1977, and
in exercise of all powers enabling him in that behalf, the President is pleased
to make the following Order: --
PART I
RELEVANCY OF FACTS
CHAPTER I
PRELIMINARY
1.
Short title, extent and commencement. --- (1) This Order may be called
the Qanun-e-Shahadat, 1984.
(2)
It extends to the whole of Pakistan
(3)
It shall come into force a once.
COMMENTARY
Provisions
of Qanun-e-Shahadat apply to proceedings before any Court, Court martial, a
Tribunal or other authority exercising judicial or quasi-judicial powers.
Qanun-e-Shahadat, however, does not apply to proceedings before an arbitrator.
Deputy
Commissioner and Tribunal under Criminal Law (Special Provisions) Ordinance (II
of 1968) are “Tribunals” within meaning of Art. I. Proceedings before them are
governed by provisions of Order/1984.
2.
Interpretation. --- (1) In this Order, unless
there is anything repugnant in the subject or context,---
(a)
“Court” includes all Judges and Magistrates, and all persons, except
arbitrators, legally authorized to take evidence;
(b)
“document” means any matter expressed or described upon any substance by means
of letters, figures or marks, or by more than one of those means, intended to
be used, or which may be used, for the purpose of recording that matter;
Illustrations
A
writing is a document;
Words
printed, lithographed or photographed are documents;
A
map or plan is a document;
An
inscription on a metal plate or stone is a document;
A
caricature is a document.
(c)
“evidence” includes:---
(i)
all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry; such statements are
called oral evidence; and
(ii)
all documents produced for the inspection of the Court; such documents are
called documentary evidence;
(d)
“fact” includes---
(i)
anything, state of things, or relation of things capable of being perceived by
the senses; and
(ii)
any mental condition of which any person is conscious.
(a)
That there are certain objects arranged in a certain order in a certain place,
is a fact.
(b)
That a man heard or saw something, is a fact.
(c)
That a man said certain words, is a fact.
(d)
That a man holds a certain opinion, has a certain intention, acts in good faith
or fraudulently, or uses a particular word in a particular sense, or is or was
at a specified time conscious of a particular sensation, is a fact.
(e)
That a man has a certain reputation, is a fact.
(2)
One fact is said to be relevant to another when the one is connected with the
other in any of the ways referred to in the provisions of this Order relating
to the relevancy of facts.
(3)
The expression “facts in issue” includes any fact from which, either by itself
or in connection with other facts, the existence, non-existence, nature or
extent of any right, liability, or disability, asserted or denied in any suit
or proceeding, necessarily follows.
Explanation.
Whenever, under the provisions of the law for the time being in force relating
to civil procedure, any Court records on issue of fact, the fact to be asserted
or denied in the answer to such issue is a fact in issue.
Illustrations
A
is accused of the murder of B.
At
his trial the following facts may be in issue:--
that
A caused B’s death;
that
A had intended to cause B’s death;
that
A had received grave sudden provocation from B;
that
A, at the time of doing the act which caused B’s death, was by reason of
unsoundness of mind, incapable of knowing its nature.
(4)
A fact is said to be proved when, after considering the matters before it, the
Court either believes it to exist, or considers its existence so probable that
a prudent man ought, under the circumstances of the particular case, to act
upon the supposition that it exists.
(5)
A fact is said to be disproved when, after considering the matters before it,
the Court either believes that it does not exist, or considers its
non-existence so probable that a prudent man ought, under the circumstances of
the particular case, to act upon the supposition that it does not exist.
(6)
A fact is said not to be proved when it is neither proved nor disproved.
(7)
Whenever it is provided by this order that the Court may presume a fact, it may
either regard such fact as proved, unless and until it is disproved, or may
call for proof of it.
(8)
Whenever it is directed by this Order that the Court shall presume a fact, it
shall regard such fact as proved, unless and until it is disproved.
(9)
When one fact is declared by this Order to be conclusive proof of another, the
Court shall, on proof of the one fact, regard the other as proved, and shall
not allow evidence to be given for the purpose of disproving it.
COMMENTARY
Facts
alleged by prosecution are to be proved by evidence on oath in Court. Evidence
provides a basis for proof of such facts which consequently result in
conviction of accused.
Evidence,
Agreement to sell. Plaintiff is to succeed on the basis of his own evidence and
not on the basis of weakness of the evidence of the defence. Civil matter is to
be decided on the basis of preponderance of evidence and the Court is to
consider the entire evidence on record, whether it is of the plaintiff or of
both plaintiff and defendant, in order to arrive at correct conclusion. Once
the evidence is brought on record, the question of burden of proof loses its
significance.
Dying
declaration. Dying declaration having not been subjected to cross-examination,
needed to be scrutinized closely and could be accepted only if it received
satisfactory corroboration from the physical circumstances of the case.
Proof.
Standard of proof in civil cases. Rules of evidence for civil and criminal
cases, are, in general, identical but some provisions in Qanun-e-Shahadat are
peculiar to criminal cases while others are peculiar to civil cases. In civil
cases all that was necessary to insist upon was that proof adduced in support
of a fact was such that should make a prudent man to act upon the supposition
that it in fact existed. Whether alleged fact was either a fact in issue or a relevant
fact, Court could draw no inference from its existence till it believed it to
exists; and belief of Court in the existence of a given fact ought to proceed
upon grounds, altogether independent of the relation of the fact to the object
and nature of proceedings in which its existence was to be determined.
Revision.
Appellate Court applying its mind to real controversy between parties and the
admission of main witness. Appraisal of evidence by Appellate Court was
strictly in accordance with rules of evidence. No misreading or non-reading of
material evidence which might have affected judgment of Appellate Court was
pointed out. No exception could be taken to concurrent findings of Courts below
on specific issues. Findings of Courts below were maintained in circumstances.
Evidence,
appreciation of. Mere deposition of a close relative (uncle) of a party in
favour of its rival would not by itself be a ground to attach absolute
evidentiary value to his testimony particularly when such witness had admitted to
be on inimical terms with his defendant relative. To place implicit reliance on
the evidence of such a highly interested witness was not warranted.
Proof.
Probative force of individual material in establishing the general truth.
Essentials. Proof must rest on evidence. Conclusion should not be based on mere
conjectures and surmises.
Evidence,
appreciation of. Witnesses produced in evidence. Testimony of such witnesses
was not shaken in cross-examination. Defendant’s plea, that witnesses produced
by plaintiff in proof of his claim for damages were not “independent” but
“interested” was fallacious, for no enmity or mala fides, whatsoever, had been
alleged; the fact that such witnesses were in similar profession as that of
plaintiff would not mean that statements given on oath by them were false,
especially those which remained unshaken during cross-examination.1
General
statement of a witness. Evidentiary value. Statement of a witness which was
general in nature would be hardly of any worth in proof of a specific issue.2
Educational
institution. Unfair means allegedly used in examination. Rustication of
examinee for three years. Punishment by way of rustication challenged before Civil Court which dismissed examinee’s suit. Examinee’s
appeal against decision of trial Court met the same fate. Validity. Scrutiny of
evidence showed that reliance had mainly been placed by examinee on certificate
of innocence issued by Deputy Superintendent and one invigilator of the
examination centre to the effect that no unfair means whatsoever had been used
by examinee. Such officials of the examination centre were not, however,
produced in evidence in support of “certificate of innocence”. Certificates
issued by such officials carried title weight for they were not produced as
witnesses to be subjected to cross-examination because it could not be inferred
otherwise as to what extent contents of their certificate could be relied upon.
“Certificate of innocence” thus, could not be considered in evidence in
circumstances.3
CHAPTER II
OF WITNESSES
3.
Who may testify. --- All persons shall be competent
to testify unless the Court considers that they are prevented from
understanding the questions put to them, or from giving rational answers to
those questions, by tender year, extreme old age, disease, whether of body or
mind, or any other cause of the same kind;
Provided
that a person shall not be competent to testify if he has been convicted by a
Court for perjury or giving false evidence:
Provided
further that the provisions of the first proviso shall not apply to a person
about whom the Court is satisfied that he has repented thereafter and mended
his ways:
Provided
further that the Court shall determine the competence of a witness in
accordance with the qualifications prescribed by the Injunctions of Islam as
laid down in the Holy Quran and Sunnah for a witness, and, where such witness
is not forthcoming, the Court may take the evidence of a witness who may be
available.
Explanation.
A lunatic is not incompetent to testify, unless he is prevented by his lunacy
from understanding the questions put to him and giving rational answers to
them.
COMMENTARY
Child
witness. Evidentiary value. Evidence of child witness is to be assessed with
care and caution.4
Child
witness, evidence of. Value. Evidence of a child witness being a delicate
matter, was not safe to rely upon unless corroborated.5
Witness.
Who may testify.6
Child
witness. Competency. What the law requires is not the factor of age, but the
intelligence of a particular child witness in the circumstances of the case.7
Competency
of persons to testify. Rule enunciated in Art. 3 of Qanun-e-Shahadat, 1984, is
not an absolute or inflexible rule.8
4.
Judges and Magistrates. --- No Judge or Magistrate shall,
except upon the special order of some Court to which he is subordinate, be
compelled to answer any questions, as to his own conduct in Court as Judge or
Magistrate, or as to anything which come to his knowledge in Court as such
Judge or Magistrate; but he may be examined as to other matters which occurred
in his presence whilst he was so acting.
Illustrations
(a)
A, on his trial before the Court of Session, says that a deposition was
improperly taken by B, the Magistrate. B cannot be compelled to answer
questions as to this, except upon the special order of a superior Court.
(b)
A is accused before the Court of Session of having given, false evidence before
B, a Magistrate, B cannot be asked what A said except upon the special order of
the superior Court.
(c)
A is accused before the Court of Session of attempting to murder a
police-officer whilst on his trial before B, a Sessions Judge, B may be
examined as to what occurred.
5.
Communications during marriage. --- No person who is or has been
married shall be compelled to disclose any communication made to him during
marriage by any person to whom he is or has been married; nor shall he be
permitted to disclose any such communication, unless the person who made it, or
his representative-in-interest consents, except in suits between married persons,
or proceedings in which one married person is prosecuted for any crime
committed against the other.
6.
Evidence as to affairs of State. --- No one shall be permitted to
give any evidence derived from unpublished official records relating to any affairs
of state, except with the permission of the officer at the head of the
department concerned, who shall give or withhold such permission as he thinks
fit.
Explanation.
In this Article “official records relating to the affairs of State” includes
documents concerning industrial or commercial activities carried on, directly
or indirectly, by the Federal Government or a Provincial Government or any
statutory body or corporation or company set up or controlled by such
Government.
COMMENTARY
Preventive
detention. Grounds for. Privilege claimed. Under provisions of
Qanun-e-Shahadat, privilege can be claimed. Held: It is open to Court to
inspect material and give finding whether such claim should be allowed or not.9
Document.
Privilege in respect of. Claim of. If in a criminal trial, such important and
sensitive document covering national security was required by an accused in his
defence and was not allowed to be produced on ground of privilege, fate of
accused would be deemed. Held: Whether such a claim for privilege would not
obstruct or debar an accused from fully and fairly meeting prosecution case or
asserting his defence and thus vitiate whole trial on ground of its suffering
from an inherent vice or being against elementary principle of natural justice,
would call for careful examination.1
7.
Official communications. --- No public officer shall be
compelled to disclose communications made to him in official confidence, when
he considers that the public interests would suffer by the disclosure.
Explanation.
In this Article, “communications” includes communications concerning industrial
or commercial activities carried on, directly or indirectly, by the Federal
Government or a Principal Government or any statutory body or corporation or
company set up or controlled by such Government.
8.
Information as to commission of offences. No Magistrate or Police Officer shall
be compelled to say whence he got any information as to the commission of any
offence, and no Revenue Officer shall be compelled to say whence he got any
information as to the commission of any offence against the public revenue.
Explanation.
In this Article, “Revenue Officer” means any officer employed in or about the
business of any branch of the public revenue.
9.
Professional communications. No advocate shall at any time be permitted. Unless
with his client’s express consent, to disclose any communication made to him in
the course and for the purpose of his employment as such advocate, by or on
behalf of his client, or to state the contents or condition of any document
with which he has become acquainted in the course and for the purpose of his
professional employment, or to disclose any advice given by him to his client
in the course and for the purpose of such employment:
Provided
that nothing in this Article shall protect from disclosure—
(1)
any such communication made in furtherance of any illegal purpose; or
(2)
any fact observed by any advocate, in the course of his employment as such,
showing that any crime or fraud has been committed since the commencement of
his employment, whether the attention of such advocate was or was not directed
to such fact by or on behalf of his client.
Explanation.
The obligation stated in this Article continues after the employment has
ceased.
Illustrations
(a)
A, a client says to B, an advocate “I wish to obtain possession of property by
the use of a forged deed on which I request you to sue”.
The
communication, being made in furtherance of a criminal purpose, is not
protected from disclosure.
(b)
A, being charged with embezzlement, retains B, an advocate, to defend him. In
the course of the proceedings, B observes that an entry has been made in A’s
account book charging A with the sum said to have been embezzled, which entry
was not in the book at the commencement of his employment.
This
being a fact observed by B in the course of his employment, showing that a
fraud has been committed since the commencement of the proceedings, it is not
protected from disclosure.
10.
Article 9 to apply to interpreters, etc. This provisions of Article 9 shall
apply to interpreters, and the clerks or servants of advocates.
11.
Privilege to waived by volunteering evidence. If any party to a suit gives
evidence therein at his own instance or otherwise, he shall not be deemed to
have consented thereby to such discourse as is mentioned in Article 9, and, if
any party to a suit or proceeding calls any such advocate as a witness, he
shall be deemed to have consented to such disclosure only if he questions such
advocate on matters which, but for such question, he would not be at liberty to
disclose.
12.
Confidential communications with legal advisors. No one shall be compelled to
disclose to the Court, Tribunal or other authority exercising judicial or
quasi-judicial powers or jurisdiction any confidential communication which has
taken place between him and his legal professional adviser, unless he offers
himself as a witness, in which case he may be compelled to disclose any such
communications as may appear to the court necessary to be known in order to
explain any evidence which he has given, but no others.
13.
Production of title deed of witness, not a party. No witness who is not a party
to a suit shall be compelled to produce his title deeds to any property or any
document in virtue of which he holds any property as pledge or mortgagee or any
document the production of which might tend to criminate him, unless he has
agreed in writing to produce them with the person seeking the production of
such deeds or some person through whom he claims.
14.
Production of documents which another person, having possession, could refuse
to produce. No one shall be compelled to produce documents in his possession,
which any other person would be entitled to refuse to produce if they were in
his possession, unless such last-mentioned person consents to their production.
15.
Witness not excused from answering on ground that answer will criminate. A
witness shall not be excused from answering any question as to any matter
relevant to the matter in issue in any suit or in any civil or criminal
proceedings, upon the ground that the answer to such question will criminate,
or may tend directly or indirectly to criminate, such witness, or that it will
expose, or tend directly or indirectly to expose, such witness to a penalty or
forfeiture of any kind:
Provided
that no such answer, which a witness shall be compelled to give, shall subject
him to any arrest or prosecution, or be proved against him in any criminal
proceedings, except a prosecution for giving false evidence by such answer.
COMMENTARY
Statement
of witness in Court in judicial proceedings whether privileged. Qualified
protection. Witness enjoys absolute privilege as the ultimate object of
dispensing justice may rest on his testimony which in all probability must
convey truth relating to the inquiry. Placing any fetters on witness may detain
him from deposing truth or at least all that he knows about the point in issue
and the same might misdirect the course of justice. Even alternate case of
giving qualified privilege to witnesses’ statement had to be confined to his
deposition, which being available in its entirety on the record was scrutinized
at length by the Court in revision for neither of the Courts below had
expressed opinion as to whether the statement in question, could not be
afforded qualified protection. Remarks of witness, during judicial proceeding
did not appear to have been wanton, reckless or beyond the plea of inquiry.2
Defamatory
remarks made by a witness in his testimony in judicial proceeding against
counsel in answer to a question in cross-examination. Privilege. Extent of.
Plaint, in suit for damages against such witness showed that no motive or
ulterior reason was attributed therein to witness in having made such typical
remarks against the counsel. Element of malice was thus missing in the plaint;
instead plea taken was that those remarks were made deliberately which
expression was not synonymous with the motive besmearing thinking of witness
against the counsel. Remarks attributed to witness related to a case wherein,
the property in question, as “Tarka” of the propositus on whose demise
partition thereof, was being sought. Witness in answer to a question, had
explained lamenting how the counsel earlier persuaded him to make a typical
statement before Court on the pretext that it was conducive to the interest of
the minor orphans: witness thought in his own way that the statement obtained
from him by the counsel was detrimental to the interest of minor orphans; and
in that context he had dubbed counsel to be cruel. Witness had reiterated in
the later part of his statement that his testimony before the Court presumably
against the interest of orphans, was the result of deceitful and unconscionable
promptings of counsel. Witness, while making such remarks against counsel was
feeling qualms of conscience in recalling that he was obliged to make
involuntarily a statement against the interest of orphans because of counsel’s
careless and unconscionable attitude. Such remarks having been obtained in
cross-examination were not voluntary and were, thus, privileged. Defamatory
remarks made voluntarily were, however, not privileged. Remarks attributed to
witness were not unconnected or irrelevant to the matter in issue; remarks in
question were evoked when witness was apparently confronted with his previous
statement and were deeply relatable to the subject-matter of suit; purport
where of was, to express how a false suggestion was made to witness pertaining
to the interest of orphans in the property. Remarks attributed to witness were
germane to the matter in inquiry and were fully protected.3
Defamatory
remarks made by a witness in his testimony in judicial proceeding whether
privileged. Witness was bound to say all that he knew even though defamatory.
Such latitude to witness was indispensable for searching truth to render
justice. Where statement of a witness dealt with a matter which was not in any
reasonable sense germane to the subject-matter in issue, the protection of
privilege should not be extended to that statement. Test applicable to the
statement of a witness was that he was not showing malice; was not trying to
degenerate the privilege into a licence; was stating something quite connected
with and relevant to the issue in question; and was not dealing with a matter
not germane to the point in issue; where there were indications that witness
was actuated by any of such considerations, his statement would not be
protected.4
16. Accomplice. An accomplice shall be a competent witness against an accused person, except in the case of an offence punishable with hadd; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
16. Accomplice. An accomplice shall be a competent witness against an accused person, except in the case of an offence punishable with hadd; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
COMMENTARY
Evidence
of accomplice, admissibility of. Evidence of an accomplice against co-accused
is inadmissible only in cases of ‘Hadd’ and ‘Qisas’, and though admissible in
cases relating to offences liable to ‘Tazir’ only but conviction in such cases
cannot be based solely on the uncorroborated testimony of such accomplice.5
Provision
relating to conviction on sole testimony of accomplice as provided in Art. 16
declared, for reasons stated in judgment, to be repugnant to Injunctions of
Islam w.e.f. 31st December, 1991 whereafter Art. 3 would become void and shall
be of no effect.6
Uncorroborated
evidence of an accomplice can be made basis of conviction in all criminal cases
except those punishable with Hadd. Courts, however, as a rule of prudence
seeking corroboration in material particulars of evidence of an accomplice before
making it basis of conviction.7
17.
Competence and number of witnesses. --- (1) The competence of a person to
testify, and the number of witnesses required in any case shall be determined
in accordance with the Injunctions of Islam as laid down in the Holy Quran and
Sunnah.
(2)
Unless otherwise provided in any law relating to the enforcement of Hudood or
any other special law,---
(a)
in matters pertaining to financial or future obligations, if reduced to
writing, the instrument shall be attested by two men, or one man and two women,
so that one may remind the other, if necessary, and evidence shall be led
accordingly; and
(b)
in all other matters, the Court may accept or act on, the testimony of one man
or one woman or such other evidence as the circumstances of the case may
warrant.
COMMENTARY
In
criminal cases, where accused is being proceeded against for awarding Tazir
punishment, Tazkiya-al-Shahood is not required. Court can legitimately act on
evidence without Tazkiya which, to satisfaction of Court, establishes guilt of
accused beyond reasonable doubt.8
Court
can convict an accused person on the testimony of one dependable witness. Law
attaches more importance to quality than to quantity of evidence.
Proof
of a fact would depend upon the character of witnesses and their competency to
speak to that fact.9
Clause
(1) of Art. 17 of Qanun-e-Shahadat is not exhaustive because it enjoins a Judge
or a Qazi to find out for himself from the Holy Qur’an and Sunnah the
competence and number of witnesses in a given case.1
Tazkiyah-al-shuhood
– Non observance of --- Effect: - Contention that the process of
tazkiyah-al-shuhood was not resorted to, therefore, the appellants could not
have been punished on the basis of the statements of the P.Ws, --- repelled. It
was held, the record does not indicate that the requirements of
tazkiyah-al-shuhood as envisaged by section 7 of the Hudood Ordinance, in the
case were satisfied yet, the fact remains that statements of the witnesses
which other-wise were, recorded on oath, could not have been straight away
rejected No doubt, tazkiyah-alshuhood is a condition precedent to impose the
sentence of hadd, yet, it cannot be said that ta’zir punishment, cannot be
inflicted on an accused, if it has not been undertaken. Since, every Muslim is
a competent witness and he is ordained to speak the truth therefore, his
testimony, so far as ta’zir punishment is concerned, cannot be discarded, if it
is otherwise, believable. In a number of cases, where the requirements of
tazkiya-al-shahood, were not fulfilled testimonies of the witnesses were
believed, by the court, to award ta’zir punishments.[P-39]D1a
CHAPTER III
OF THE RELEVANCY OF FACTS
OF THE RELEVANCY OF FACTS
18.
Evidence may be given of facts in issue and relevant facts. Evidence may be
given in any suit or proceeding of the existence or non-existence of every fact
in issue and of such other facts as are hereinafter declared to be relevant,
and of no others.
Explanation. This Article shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.
Illustrations
(a)
A is tried for the murder of B by beating him with a club with the intention of
causing his death.
At
A’s trial the following facts are in issue:---
A’s
beating B with the club;
A’s
causing B’s death by such beating;
A’s
intention to cause B’s death.
(b)
A suitor does not bring with him and have in readiness for production at the
first hearing of the case, a bond on which he relies. This Article does not
enable him to produce the bond or prove its contents at a subsequent stage of
the proceedings, otherwise than in accordance with the conditions prescribed by
the law for the time being in force relating to Civil Procedure.
19.
Relevancy of facts forming part of same transaction. Facts which though not in
issue, are so connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same time and place or
at different times and places.
Illustrations
(a)
A is accused of the murder of B by beating him. Whatever was said or done by A
or B or the by-standers at the beating, or, shortly before or after it as to
form part of the transaction, is a relevant fact.
(b)
A is accused of waging war against Pakistan by taking part in an armed
insurrection in which property is destroyed, troops are attacked, and goals are
broken open. The occurrence of these facts is relevant, as forming part of the
general transaction, though A may not have been present at all of them.
(c)
A sues B for a libel contained in a letter forming part of a correspondence.
Letters between the parties relating to the subject out of which the libel
arose, and forming part of the correspondence in which it is contained, are
relevant facts, though they do not contain the libel itself.
(d)
The question is, whether certain goods ordered from B were delivered to A. The
goods were delivered to several intermediate persons successively. Each
delivery is a relevant fact.
COMMENTARY
A
portion of the statement of a witness based on personal observation and
knowledge of the witness cannot be regarded as hearsay. --- because statements
made under immediate influence of a transaction being resiesdae are admissible
under Article 19 of the Qanun-e-Shahadat Order 1984. --- Hearsay testimony
would be admissible if it is proved that the object of the maker of the
statement was to elucidate and explain the circumstances connected with the
same transaction provided the possibility of concoction or distortion, to the
advantage of the maker or to the disadvantage of the accused, is ruled out.1b
Statement
made immediately after murder occurrence under influence of occurrence in order
to characterize it and explain circumstances connected therewith would be
admissible under Art. 19 as res gestate evidence.2
Statement
made by an independent witness of murder occurrence would be relevant under
Art. 19 for determining guilt of accused.3
20.
Facts which are the occasion, cause or effect of facts in issue. Facts which
are the occasion, cause or effect, immediate or otherwise, of relevant facts,
or facts in issue, or which constitute the state of things under which they
happened, or which afforded an opportunity for their occurrence or transaction,
are relevant.
Illustrations
(a)
The question is, whether A robbed B.
The
facts that, shortly before the robbery, B went to a fair with money in his
possession, and that he showed it or mentioned the fact that he had it, to
third person, are relevant.
(b)
The question is, whether A murdered B.
Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts.
Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts.
(c)
the question is, whether A poisoned B.
The
state of B’s health before the symptoms ascribed to poison, and habits of B.
Known to A, which afforded an opportunity for the administration of poison, are
relevant facts.
21.
Motive, preparation and previous or subsequent conduct. (1) Any fact is
relevant which shows or constitutes a motive or preparation for any fact in
issue or relevant fact.
(2)
The conduct of any party, or any agent to any party, to any suit or proceeding,
in reference to such suit or proceeding, or in reference to any fact in issue
therein or relevant thereto, and the conduct of any person an offence against
whom is the subject of any proceeding, is relevant, if such conduct influences
or is influenced by any fact in issue or relevant fact, and whether it was
previous or subsequent thereto.
Explanation
1. The word “conduct” in this clause does not include statements, unless those
statements accompany and explain acts other than statements but this explain is
not to affect the relevancy of statements under any other Article of this
Order.
Explanation
2. When the conduct of any person is relevant, any statement made to him or in
his presence and hearing, which affects such conduct, is relevant.
Illustrations
(a)
A is tried for the murder of B.
The
facts that A murdered C, that B knew that A had murdered C, and that B had
tried to extort money from A by threatening to make his knowledge public are
relevant.
(b)
A sues B upon a bond for the payment of money. B denies the making of the bond.
The
fact that, at the time when the bond was alleged to be made, B required only
for a particular purpose, is relevant.
(c)
A is tried for the murder of B by poison; the fact that, before the death of B.
A procured position similar to that which was administered to D, is relevant.
(d)
The question is whether a certain document is the will of A.
The
facts that, not long before the date of the alleged will A made inquiry into
matters to which the provisions of the alleged will relate, that he consulted
advocates in reference to making the will, and that he caused drafts of other
wills to be prepared of which he did not approve, are relevant.
(e)
A is accused of a crime.
The
facts that, either before or at the time of, or after the alleged crime, A
provided evidence which would tend to give to the facts of the case an
appearance favourable to himself, or that he destroyed or concealed evidence or
prevented the presence or procured the absence of persons who might have been
witnesses, or suborned persons to give false evidence respecting it, are
relevant.
(f)
The question is whether a robbed B.
The
facts that, after B was robbed, C said in A’s presence;
The
Police are coming to look for the man who robbed B, and that immediately
afterwards A ran away, are relevant.”
(g)
The question is whether A owes B Rs. 10,000.
The
facts that A asked C to lend him money, and that D said to C in A’s presence
and hearing: “I advice you not to trust A, for he owes B 10,000 rupees”, and
that A went away without making any answer, are relevant facts.
(h)
The question is, whether A committed a crime.
The
fact that A absconded after receiving a letter warning him that inquiry was
being made for the criminal, and the contents of the letter, are relevant.
(i)
A is accused of a crime.
The
facts that, after the commission of the alleged crime, he absconded, or was in
possession of property or the proceeds of property acquired by the crime, or
attempted to conceal things which were or might have been used in committing
it, are relevant.
(j)
The question is whether A was ravished.
The
facts that, shortly after the alleged rape, she made a complaint relating to
the crime, the circumstances under which, and the terms in which, the compliant
was made are relevant.
The
fact that, without making a complaint, she said, that she had been ravished is
not relevant as conduct under this Article though it may be relevant as a dying
declaration under Article 46m paragraph (1), or as corroborative evidence under
Article 153.
(k)
The question is, whether a was robbed.
The
fact that, soon after the alleged robbery, he made a complaint relating to the
offence, the circumstances under which, and the terms in which, the complaint
was made, are relevant.
The
fact that he said he had been robbed without making any complaint, is not
relevant, as conduct under this Article, though it may be relevant as a dying
declaration under Article 46, paragraph (1), or as corroborative evidence under
Article 153.
22.
Facts necessary to explain or introduce relevant facts. Facts necessary to
explain or introduce a fact in issue or relevant fact, or which support or
rebut an inference suggested by a fact in issue or relevant fact, or which
establish the identity of anything or person whose identity is relevant, or fix
the time or place at which any fact in issue or relevant facts happened, or
which show the relation of parties by whom any such fact was transacted, are
relevant insofar as they are necessary for that purpose.
Illustrations
(a)
The question is, whether a given document is the will of A.
The
state of A’s property and of his family at the date of the alleged will may be
relevant facts.
(b)
A sues B for a libel imputing disgraceful conduct to A; B affairs that the
matter alleged to be libelous is true.
The
position and relations of the parties at the time when the libel was published
may be relevant facts as introductory to the facts in issue.
The
particulars of a dispute between A and B about a matter unconnected with the
alleged libel are irrelevant, though the fact that there was a dispute may be
relevant if it affected the relations between A and B.
(c)
A is accused of a crime.
The
fact that, soon after the commission of the crime, A absconded from his house,
is relevant under Article 21, as conduct subsequent to and affected by facts in
issue.
The
fact that at the time when he left home he had sudden and urgent business at
the place to which he went is relevant, as tending to explain the fact that he
left home suddenly.
The
details of the business on which he left are not relevant except insofar as
they are necessary to show that the business was sudden and urgent.
(d)
A sues B for inducing C to break a contract of service made by him with A, C,
on leaving A’s service, says to A “I am leaving you because B has made me a
better offer.” This statement is a relevant fact as explanatory of C’s conduct,
which is relevant as a fact in issue.
(e)
A, accused of theft, is seen to give the stolen property to B, who is seen to
give to A’s wife. B, says as he delivers it: “A says you are to hide this.” B’s
statement is relevant as explanatory of a fact which is part of the
transaction.
(f)
A is tried for a riot and is proved to have marched at the head of a mob. The
cries of mob are relevant as explanatory of the nature of the transaction.
COMMENTARY
Identification
parade. When culprits were not known to the witnesses and witnesses had only a
monetary glimpse of the culprits at the time of occurrence, prosecution was
bound to prove that culprits, soon after their arrest, were put to
identification test and got identified by eye-witnesses through an
identification test/parade held in presence of a Magistrate.4
Identification
test. Nature. Holding of identification test was not a requirement of law but
was only one of the methods to test veracity of evidence of an eye-witness who
had an occasion to see accused and claimed to identify the culprit.5
Identification
test. Nature. Identification test was not a requirement of law, but it was only
one of the methods to test the veracity of evidence of an eye-witness who had
an occasion to see accused and claimed to identify him.6
Identification
parade. Delay in holding identification parade was not always fatal to case of
prosecution. Credibility of identification parade depended upon a host of
circumstances including type of witnesses, manner in which same was carried out
including proportion of innocent persons to be mixed with suspects and fact as
to how and in what manner and circumstances prosecution witnesses came to pick
out a particular accused and details of part which that accused had, in fact,
taken in crime. Delay simpliciter in conducting identification parade, would
not prejudice capability, if otherwise enough, of eye-witnesses to identify
culprits.8
23.
Things said or done by conspirator in reference to common design. --- Where
there is reasonable ground to believe that two or more persons have conspired
together to commit an offence or an actionable wrong anything said, done or
written by any one of such persons in reference to their common intention,
after the time when such intention was first entertained by any one of them, is
a relevant fact as against each of the persons believed to be so conspiring, as
well for the purpose of proving the existence of the conspiracy as for the
purpose of showing that any such person was a party to it.
Illustrations
Reasonable
ground exists for believing that A has joined in a conspiracy to wage war
against Pakistan
The
facts that B procured arms in Europe for the purpose of the conspiracy, C
collected money in Peshawar for a like object, D persuaded persons to join the
conspiracy in Karachi . E published writings
advocating the object in view at Multan, and F transmitted from Lahore to G at
Kabul the money which C had collected at Peshawar and contents of a letter
written by H giving an account of the conspiracy are each relevant, both to
prove the existence of the conspiracy, and to prove A’s complicity in it,
although he may have been ignorant of all of them, and although the persons by
whom they were done were strangers to him and although they may have taken
place before he joined the conspiracy or after he left it.
24.
When facts not otherwise relevant become relevant. Facts not otherwise relevant
are relevant ---
(a)
if they are inconsistent with any fact in issue or relevant fact;
(2)
if by themselves or in connection with other facts they make the existence or
non-existence of any fact in issue or relevant fact highly probable or
improbable.
Illustrations
(a)
The question is, whether A committed a crime at Peshawar
on a certain day.
The
fact that, on that day, A was at Lahore is
relevant.
The
fact that near the time when the crime was committed, A was at a distance from
the place where it was committed, which would render it highly improbable,
though not impossible, that he committed it, is relevant.
(b)
The question is, whether A committed a crime.
The
circumstances are such that the crime must have been committed either by A, B,
C, or D. Every fact which shows that the crime could have been committed by no
one else and that it was not committed by either B, C or D, is relevant.
25.
In suits for damages facts tending to enable Court to determine amount are
relevant. In suits in which damages are claimed, any fact which will enable the
Court to determine the amount of damages which ought to be awarded, is
relevant.
26.
Facts relevant when right or custom is in question. Where the question is as to
the existence of any right or custom, the following facts are relevant:---
(a)
any transaction by which the right or custom in question was created, claimed,
modified, recognized, asserted or denied, or was inconsistent with its
existence;
(b)
particular instances in which the right or custom was claimed recognized or
exercised, or in which its exercise was disputed, asserted or departed from.
Illustrations
Illustrations
The
question is whether A has a right to a fishery. A deed conferring the fishery
on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant
of the fishery by A’s father, irreconcilable with mortgage, particular
instances in which A’s father exercised the right, or in which the exercise of
the right was stopped by A’s neighbours are relevant facts.
27.
Facts showing existence of state of mind, or of body, or bodily feeling. Facts
showing in the existence of any state of mind, such as intention, knowledge,
good faith, negligence, rashness, ill-will or good-will towards any particular
person, or showing the existence of any state of body or bodily feeling, are
relevant, when the existence of any such state of mind or body or bodily
feeling is in issue or relevant.
Explanation
1. A fact relevant as showing the existence of a relevant state of mind must
show that the state of mind exists, not generally but in reference to the
particulars matter in question.
Explanation
2. But where, upon the trial of a person accused of an offence, the previous commission
by the accused of an offence is relevant within the meaning of this Article,
the previous conviction of such person shall also be a relevant fact.
Illustrations
(a)
A is accused of receiving stolen goods knowing them to be stolen. It is proved
that he was in possession of a particular stolen article.
The
fact that, at the same time, he was in possession of many other stolen articles
is relevant, as tending to show that he knew each and all of the articles of
which he was in possession to be stolen.
(b)
A is accused of fraudulently delivering to another person a counterfeit coin
which, at the time when he delivered it, he knew to be counterfeit.
The
fact that, at the (sic) its delivery, A was possessed of a number of other
pieces of counterfeit (sic) relevant.
The
fact that A had been previously convicted of delivering to another person as
genuine a counterfeit coin knowing it to be counterfeit is relevant.
(c)
A sues B for damages done by a dog of B which B knew to be ferocious.
The facts that the dog had previously bitten X, Y and Z and that they had made complaints to B, are relevant.
The facts that the dog had previously bitten X, Y and Z and that they had made complaints to B, are relevant.
(d)
The question is whether a, the acceptor of a bill of exchange, knew that the
name of the payee was fictitious.
The
fact that A had accepted other bills drawn in the same manner before they could
have been transmitted to him by the payee if the payee had been a real person,
is relevant as showing that A knew tht the payee was a fictitious person.
(e)
A is accused of defaming B by publishing an imputation intended to harm the
reputation of B.
The
fact of previous publications by A respecting B, showing ill-will on the part
of A towards b is relevant, as proving A’s intention to harm B’s reputation by
the particular publication in question.
The
facts that there was no previous quarrel between A and b, and A repeated the
matter complained of as he heard it, are relevant, as showing that A did not
intended to harm the reputation of B.
(f)
A is sued by B for fraudulently representing to B that C was solvent whereby B,
being inducted to trust C, who was insolvent, suffered loss.
The
fact that at the time when A represented C to be solvent, C was supposed to be
solvent by his neighbours and by persons dealing with him, is relevant, as
showing that A made the representation in good faith.
(g)
A is sued by B for the price of work done by B, upon a house of which A is
owner by the order of C, a contractor.
A’s
defence is that B’s contract was with C.
The
fact that paid C for the work in question is relevant, as proving that A did,
in good faith, make over to C the management of the work in question, so that C
was in a position to contract with B on C’s own account, and not as agent for
A.
(h)
A is accused of the dishonest misappropriation of property which he had found,
and the question is whether, when he appropriated it, he believed in good faith
that the real owner not be found.
The
fact that public notice of the loss of the property had been given in the place
where A was, is relevant, as showing that A did not in good faith believe that
the real owner of the property could not be found.
The
fact that A knew, or had reason to believe, that the notice was given
fraudulently by C, who had heard of the loss of the property and whished to set
up a false claim to it, is relevant, as showing that the fact that A knew of
the notice did not disprove A’s good faith.
(i)
A is charged with shooting at B with intent to kill him. In order to show A’s
intent the fact of A’s having previously shot at B may be proved.
(j)
A is charged with sending threatening letters to B. Threatening letter
previously sent by A to B may be proved, as showing the intention of the
letters.
(k)
The question is, whether A has been guilty of cruelty towards B, his wife.
Expressions
of their feeling towards each other shortly before or after the alleged cruelty
are relevant facts.
(l)
The question is whether A’s death was caused by poison. Statements made by A
during his illness as to his symptoms are relevant facts.
(m)
The question is, what was the state of A’s health at the time an assurance on
his life was effected.
Statement
made by A as to the state of his health at or near the time in question are
relevant facts.
(n)
A sues B for negligence in providing him with a carriage for hire not reasonably
fit for use, whereby A was injured.
The
fact that B’s attention was drawn on other occasion to the defect of that
particular carriage is relevant.
The
fact that B was habitually negligent about the carriages which he let to hire
is irrelevant.
(o)
A is tried for the murder of B by intentionally shooting him dead.
The
fact A on other occasions shot at B is relevant as showing his intention to
shoot B.
The
fact that A was in the habit of shooting at people with intent to murder them
is irrelevant.
(p)
A is tried for a crime.
The
fact that he said something indicating an intention to commit that particular
crime is relevant.
The
fact that he said something indicated general disposition to commit crimes of
that class is irrelevant.
28.
Facts bearing on question whether act was accidental or intentional. When there
is a question whether an act was accidental or intentional, or done with a
particular knowledge or intention, the fact that such act formed part of a
series of similar occurrence, in each of which the person doing the act was
concerned, is relevant.
Illustrations
(a)
A is accused of burning down his house in order to obtain money for which it is
insured.
The
facts that A lived in several houses successively each of which he insured, in
each of which a fire occurred, and after each of which fires A received payment
from different insurance officers, are relevant as tending to show that the
fires were not accidental.
(b)
A is employed to receive money from the debtors of B. It is A’s duty to make
entries in a book showing the amounts received by him. He makes an entry
showing that on a particular occasion he received less than he really did
receive.
The
question is whether this false entry was accidental or intentional.
The
facts that other entries made by A in the same book are false and that the
false entry is in each case in favour of A, are relevant.
(c)
A is accused of fraudulently delivering to B a counterfeit rupees.
The
question is, whether the delivery of the rupee was accidental.
The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D and E are relevant as showing that the delivery to B was not accidental.
The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D and E are relevant as showing that the delivery to B was not accidental.
29.
Existence of course of business when relevant. When there is a question whether
a particular act was done, the existence of any course of business, according
to which it naturally would have been done, is a relevant fact.
Illustrations
(a)
The question is, whether a particular letter was dispatched.
The
facts that it was the ordinary course of business for all letters put in a
certain place to be carried to the post, and that particular letter was put in
that place are relevant.
(b)
The question is, whether a particular letter reach A.
The
facts that it was posted in due course, and was not returned through the Dead
Letter Office, are relevant.
ADMISSIONS
30.
Admission defined. An admission is a statement, oral or documentary, which
suggests any inference as to any fact in issue or relevant fact, and which is
made by any of the persons, and under the circumstances, hereinafter mentioned.
COMMENTARY
Admission
of fact by plaintiffs. Effect. Plaintiff in his statement before Court had
admitted part of defendant claim viz. value of tube well. Such payment would be
made by plaintiffs in addition to payment of decretal amount.7
Judgment
on admission. Essentials. Party to suit can seek decree on admission made in
pleadings or otherwise without waiting for determination of any other question
between parties. Admission sought to be the basis of decree was in fact
qualified admission of an official of the defendant and inter-departmental
communications which would not amount to conceding plaintiff’s claim. Any
admission as contemplated by O.XII, R. 6, C.P.C. has to be unequivocal admission
which could amount to estoppel against the party making such admission.
Defendant had yet to file written statement while application in terms of
O.XII. R. 6, C.P.C. had been filed before defendants had submitted their
written statement. Plaintiffs were thus, not entitled to decree on basis of
qualified admission in terms of O.XII, R. 6, C.P.C.8
31.
Admission by party to proceeding or his agent, etc. (1) Statement made by a
party to the proceedings, or by an agent to any such party, whom the Court regards,
under the circumstances of the case, as expressly or impliedly authorized by
him to make them, are admissions.
(2)
Statements made by parties to suits suing or sued in a representative
character, are not admissions, unless they were made while the party making
them held that character.
(3)
Statements made by---
(a)
persons who have any proprietary or pecuniary interest in the subject-matter of
the proceeding, and who make the statement in their character of persons so
interested, or
(b)
persons from whom the parties to the suit have derived their interest in the
subject-matter of the suit,
are
admissions if they are made during the continuance of the interest of the
persons making the statements.
COMMENTARY
Admission
of fact by illiterate lady. Effect. Where illiterate lady who did not
understand the meaning of legal words, like “decree” had admitted in her
statement factum of decree against here and in the same statement denied the
existence of any such decree, decree in question, was not proved in absence of
production of copy of decree/judgment in question.1
32.
Admission by persons whose position must be proved as against party to suit.
Statements made by persons, whose position or liability it is necessary to
prove as against any party to the suit, are admissions, if such statement would
be relevant as against such persons in relation to such position or liability
in a suit brought by or against them, and if they are made whilst the person
making them occupies such position or is subject to such liability.
Illustrations
A
undertakes to collect rents for B.
B
sues A for not collecting rent due from C to B.
A
denies that rent was due from C to B.
A
statement by C that he owed B rent is an admission, and is a relevant fact as
against A, if A denies that C did owe rent to B.
33.
Admission by persons expressly referred to by party to suit. Statements made by
persons to whom a party to the suit has expressly referred for information in
reference to matter in dispute are admissions.
Illustrations
The
question is, whether a horse sold by A to B is sound.
The
says to B: “Go and ask C: C knows all about it.” C’s statement is an admission.
34.
Proof of admissions against persons making them, and by or on their behalf.
Admission are relevant and may be proved as against the person who makes them,
or his representative in interest; but they cannot be proved by or on behalf of
the person who makes them or by his representative-in-interest, except in the
following cases:---
(1)
An admission may be proved by or on behalf of the person making it, when it is
of such a nature that, if the person making it were dead, it would be relevant
as between third persons under Article 46.
(2)
An admission may be proved by or on behalf of the person making it, when it consists
of a statement of the existence of any state of mind or body, relevant or in
issue, made at or about the time when such state of mind or body existed, and
is accompanied by conduct rendering its falsehood improbably.
(3)
An admission may be proved by or on behalf of the person making it, if it is
relevant otherwise than as an admission.
Illustrations
(a)
The question between A and B is, whether a certain deed is or is not forged. A
affirms that it is genuine, B that it is forged.
A
may prove a statement by B that the deed is genuine, and B may prove a
statement by A that the deed is forged; but A cannot prove a statement by
himself that the deed is genuine, nor can B prove a statement by himself that
the deed is forged.
(b)
A, the captain of a ship, is tried for casting her away.
Evidence
is given to show that the ship was taken out of her proper course.
A
produces a book kept by him in the ordinary course of his business showing
observations alleged to have been taken by him from day to day, and indicating
that the ship was not taken out of her proper course. A may prove these
statements, because they would be admissible between third parties, if he were
dead, under Article 46, paragraph (2).
(c)
A is accused of a crime committed by him at Peshawar .
He
produces a letter written by himself and dated at Lahore on that day, and
bearing the Lahore post-marks of that day.
The
statement in the date of the letter is admissible, because, if A were dead, it
would be admissible under Article 46, paragraph (2).
(d)
A is accused of receiving stolen goods knowing them to be stolen.
He
offers to prove that he refused to sell them below their value.
A
may prove these statements though they are admissions, because they are
explanatory of conduct influenced by facts in issue.
(e)
A is accused of fraudulently having in his possession counterfeit coin which he
knew to be counterfeit.
He
offers to prove that he asked a skilful person to examine the coin as he
doubted whether it was counterfeit or not, and that person did examine it and
told him it was genuine.
A
may prove these facts for the reasons stated in the last preceding
illustration.
35.
When oral admissions as to contents of documents are relevant. Oral admissions
as to the contents of a document are not relevant, unless and until the party
proposing to prove them shows that he is entitled to give secondary evidence of
the contents of such documents under the rules hereinafter contained, or unless
the genuineness of a document produced is in question.
36.
Admissions in civil cases when relevant. In civil cases no admission is
relevant, if it is made either upon an express condition that evidence of it is
not to be given, or under circumstances from which the Court can infer that the
parties agreed together that evidence of it should not be given.
Explanation.
Nothing in this Article shall be taken to exempt any advocate from giving
evidence of any matter of which he may be compelled to give evidence under
Article 9.
37.
Confession caused by inducement, threat or promise, when irrelevant in criminal
proceedings. A confession made by an accused person is irrelevant in a criminal
proceeding, if the making of the confession appears to the Court to have been
caused by any inducement, threat or promise having reference to the charge
against the accused person, proceeding from a person in authority and
sufficient, in the opinion of the Court, to give the accused person grounds
which would appear to him reasonable for supporting that by making it he would
gain any advantage or avoid and evil of a temporal nature in reference to the
proceedings against him.
COMMENTARY
Confessional
Statement. Omission by recording Magistrate to ask question whether
confessional statement was made under promise by Police, would not affect
evidentiary value of confessional statement when accused did not say in their
statement u/s. 342 and u/s. 340(2), Cr.P.C. that their confessional statement
was made under promise.2
Extra-judicial
confession. Extra-judicial confession was weakest type of evidence which
required that before it was relied upon, it must be supported by some
independent circumstantial evidence coming from an unimpeachable source.3
38.
Confession to police officer not to be proved. No confession made to a police
officer shall be proved as against a person accused of any offence.
COMMENTARY
Confession
by accused before Police would inadmissible in evidence under Art. 38.3a
39.
Confession by accused while in custody of police not to be proved against him.
Subject to Article 40, no confession made by any person whilst he is in the
custody of a police-officer, unless it be made in the immediate presence of a
Magistrate, shall be proved as against such person.
Explanation.
In this Article, “Magistrate” does not include the head of a village
discharging magisterial functions unless such headman is a Magistrate
exercising the powers of a Magistrate under the Code of Criminal Procedure,
1898 (Act V of 1898).
COMMENTARY
Mere
pointing out the place to police as being the place where children had been
thrown by accused but such pointing out did not lead to discovery of any fact.
Held: For purpose of Art. 40, this evidence cannot be relied upon as
corroboratory evidence.4
Confession.
Retracted confession. Constitution of Pakistan
40.
How much of information received from accused may be proved. When any fact is
deposed to as discovered in consequence of information received form a person
accused of any offence, in the custody of a police-officer, so much of such
information, whether it amounts to a confession or not, as relates distinctly
to the fact thereby discovered, may be proved.
COMMENTARY
COMMENTARY
Recovery
made on pointation of accused is relevant under Art. 40.6
Place
of occurrence. Discovery. Place of occurrence known to everyone and site plan
having been prepared prior to the pointation of the same by the accused, such
pointation could not be treated as a discovery to bring it within the four
corners of Art. 40 of Qanun-e-Shahadat, 1984.7
41.
Confession made after removal of impression caused by inducement, threat or
promise, relevant. If such a confession as is referred to in Article 37 is made
after the impression caused by any such inducement, threat or promise has, in
the opinion of the Court, been fully removed, it is relevant.
42.
Confession otherwise relevant not to become irrelevant because of promise of
secrecy, etc. If such a confession is otherwise relevant, it does not become
irrelevant merely because it was made under a promise of secrecy, or in
consequence of a deception practiced on the accused person for the purpose of
obtaining it, or when he was drunk, or because it was made in answer to
questions which he need not have answered, whatever may have been the form of
those questions, or because he was not warned that he was not bound to make
such confession, and that evidence of it might be given against him:
43.
Consideration of proved confession affecting person making it and others
jointly under trial for same offence. When more persons than one are being
tried jointly for the same offence, and a confession made by one of such
persons is proved, ---
(a)
such confession shall be proof against the person; making it; and
(b)
the Court may take into consideration such confession as circumstantial
evidence against such other person.
Explanation.---
“Offence”, as used in this Article, includes the abetment of, or attempt to
commit, the offence.
Illustrations
(a)
A and B are jointly tried for the murder of C. It is proved that A said: “B and
I murdered C”. The Court may consider the effect of this confession as against
B.
(b)
A is on his trial for the murder of C. There is evidence to show that C was
murdered by A and B, and that B said: “A and I murdered C”.
This
statement may not be taken into consideration by the Court against A, as B is
not being jointly tried.
44.
Accused persons to be liable to cross-examination. All accused persons,
including an accomplice, shall be liable to cross-examination.
45.
Admission not conclusive proof but may estop. Admissions are not conclusive
proof of the matters admitted but they may operate as estoppels under the
provisions hereinafter contained.
COMMENTARY
Admissions
made in pleadings and evidentiary admissions. Connotation. Effect. Admission
embodied in Art. 113, Qanun-e-Shahadat is a rule of procedure while Art. 45
thereof, is to be given effect through the rule of evidence. Admissions in
pleadings were conclusive but not the others. Admissions in pleadings would
have overriding role which does not permit that admissions through evidence or
unrebutted statements be made basis of adjudication in exclusion to admissions
in pleadings. Defendants having admitted ownership of plaintiff’s predecessor
in their written statement and thereafter, claiming themselves to be the owners
thereof, onus to prove such ownership should have been on defendants.
Plaintiff’s job to prove ownership ends successfully when admission of their
ownership had been made in written statement by defendants. Defendant’s oral
statement that they had become owners of property in question, through decree
of Court, without producing on record such decree or copy of judgment was of no
effect and their ownership of property in question, was not established. Oral
evidence could not be of any value in absence of production of available
documentary evidence.9
STATEMENT
BY PERSONS WHO CANNOT BE
CALLED AS WITNESSES
CALLED AS WITNESSES
46.
Cases in which statement of relevant fact by person who is dead or cannot be
found, etc., is relevant. Statements, written or verbal, of relevant facts made
by a person who is dead, or who cannot be found, or who has become incapable of
giving evidence or whose attendance cannot be procured without an amount of
delay or expense which under the circumstances of the case appears to the Court
unreasonable, are themselves relevant facts in the following cases:---
(1)
When it relates to cause of death. When the statement is made by a person as to
cause of his death, or as to any of the circumstances of the transaction which
resulted in his death, in cases in which the causes of that person’s death
comes into question. Such statements are relevant whether the person who made
them was or was not, at the time when they were made, under expectation of
death, and whatever may be the nature of the proceeding in which the cause of
his death comes into question.
(2)
Or is made in course of business. When the statement was made by such person in
the ordinary course of business, and in particular when it consists of any
entry or memorandum made by him in books kept in the ordinary course of
business, or in the discharge of professional duty; or of an acknowledgement
written or signed by him of the receipt of money, goods, securities or property
of any kind; or of a document used in commerce written or signed by him; or of
the date of a letter or other document usually dated, written or signed by him.
(3)
Or against interest of make. When the statement is against the pecuniary or
proprietary interest of the person making it, or when, if true, it would expose
or would have exposed him to a criminal prosecution or to a suit for damages.
(4)
Or gives opinion as to public right or customs, or matters of general interest.
When the statement gives the opinion of any such person, as to the existence of
any public right or custom or matter of public or general interest, of the
existence of which if it existed, he would have been likely to be aware, and
when such statement was made before any controversy as to such right, custom or
matter has arisen.
(5)
Or relates to existence of relationship. When the statement relates to the
existence of any relationship by blood, marriage or adoption between persons as
to when relationship by blood marriage or adoption the person making the
statement had special means of knowledge, and when the statement was made
before question in dispute was raised.
(6)
Or is made in will or deed relating to family affairs. When the statement
relates to the existence of any relationship by blood, marriage or adoption
between persons deceased, and is made in any will or deed relating to the
affairs of the family to which any such deceased person belonged, or in any
family pedigree, or upon any tombstone, family portrait or other thing on which
such statements are usually made and when such statement was made before the
question in dispute was raised.
(7) Or in document relating to transaction mentioned in Article 26, paragraph (a). When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Article 26, paragraph (a).
(7) Or in document relating to transaction mentioned in Article 26, paragraph (a). When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Article 26, paragraph (a).
(8)
Or is made by several persons and expresses feelings relevant to matter in
question. When the statement was made by a number of persons, and expressed
feelings or impressions on their part relevant to the matter in question.
Illustrations
(a)
The question, is whether A was murdered by B; or A dies of injuries received in
a transaction in the course of which she was ravished. The question is, whether
she was ravished by B; or
The
question is, whether A was killed by B under such circumstances that a suit
would lie against B by A’s widow.
Statements
made by A as to the cause of his or her death, referring respectively to the
murder, the rape and the actionable under consideration are relevant facts.
(b)
The question is as to the date of A’s birth
An
entry in the diary of a deceased surgeon regularly kept in the course of
business, stating that, on a given day, he attended A’s mother and delivered
her of a son, is a relevant fact.
(c)
The question is, whether A was in Peshawar on
a given day.
A
statement in the diary of a deceased solicitor, regularly kept in the course of
business that on a given day the solicitor attended A at a place mentioned, in Peshawar , for the purpose of conferring with him upon
specified business, is a relevant fact.
(d)
The question is, whether a ship sailed from Karachi
harbour on a given day.
A
letter written by a deceased member of a merchants firm by which she was
chartered to their correspondents in London, to whom the cargo was consigned,
stating that the ship sailed on a given day from Karachi
harbour is a relevant fact.
(e)
The question is, whether rent was paid to A for certain land.
A
letter from A’s deceased agent to A saying that he had received the rent on A’s
account and held it at A’s order, is a relevant fact.
(f)
The question is, whether A and b were legally married.
The
statement of a deceased clergyman that he married them under such
circumstances, that the celebration would be a rime is relevant.
(g)
The question is, whether A, a person who cannot be found, wrote a letter on a
certain day. The fact that a letter written by him is dated on that day is
relevant.
(h)
The question is, what was the cause of the wreck of a ship.
A
protest made by the Captain, whose attendance cannot be procured, is a relevant
fact.
(i)
The question is, what was the cause of the wreck of a ship.
The
statement made by the Captain, whose attendance cannot be procured, is a
relevant fact.
(j)
The question is, what was the price of grain on a certain day in a particular
market. A statement of the price, made by a deceased banya in the ordinary
course of his business, is a relevant fact.
(k)
The question is, whether A, who is dead, was the father of B.
A statement by A that B was his son is a relevant fact.
A statement by A that B was his son is a relevant fact.
(l)
The question is, what was the date of the birth of A.
A
letter from A’s deceased father to a friend, announcing the birth of A on a
given day, is a relevant fact.
(m)
The question is, whether and when, A and B were married.
An
entry in a memorandum-book by C, the deceased father of B, of his daughter’s
marriage with A on a given date, is a relevant fact.
(n)
A sues B for a libel expressed in a pointed caricature exposed in a shop
window. The question is as to the similarity of the caricature and its libelous
character. The remarks on a crowd of spectators on these points may be proved.
COMMENTARY
Dying
declaration. Nothing was available on record that official had not recorded the
dying declaration in verbatim, though in the translated form. Nothing could be
brought out in the cross-examination of recording Magistrate which could cast
doubt as to the veracity of the contents of the dying declaration which was
made in Urdu and translated into Sindhi and English. Contention that dying
declaration was liable to be discarded as it was not recorded in the language
namely Urdu, in which it was made, particularly in the absence of any material
that the Recording Magistrate was well conversant with Urdu, Sindhi and English
languages, was repelled. Dying declaration, if did not suffer from any
infirmity, was sufficient to warrant conviction for an offence.1
Dying declaration. Presence of relatives around the deceased. Effect. Dying declaration made in presence of relatives be always taken with a pinch of salt and the same renders the dying declaration doubtful. Prompting of relatives to the deceased at the time of recording of dying declaration. Effect. No sanctity can be attached to a dying declaration where the relatives are present around and where the names of the accused are prompted by such relatives.2
Admissibility
of depositions and former testimony. Depositions taken by Magistrate who was
incompetent to do so, cannot be transferred under provisions of Art. 47.
Requirements of Art. 47 must be proved in letter and spirit before depositions
of witnesses are transferred to file of Sessions Court. It was held that in
circumstances of case, depositions of witnesses brought on record of Sessions
Court could not be treated as evidence.3
Dying
declaration. No mandatory pre-requisites of law exist that a dying declaration
cannot be made before a police officer or that it should always be in writing.
Dying declaration can be oral and communicated by means of gestures when the
victim cannot speak due to his critical condition.4
Dying
declaration. Admissibility. Admissibility of dying declaration not affected by
S. 164, Cr.P.C. Provisions of S. 164, Cr.P.C. do not in any way affect the
admissibility of a statement made by a person if it falls within the terms of
Art. 46 of Qanun-e-Shahadat, 1984.5
Oral
dying declaration. Admissibility. Dying declaration is admissible even if
orally made.6
Dying
declaration. Sufficiency to sustain conviction thereon. Conditions. Dying
declaration, by itself, was sufficient to sustain conviction thereon provided
there was no chance of mistaken identity; deceased was capable of making
statement; the time elapsed after sustaining injury before deceased made
statement; whether statement rang true; statement was free from promptness of
others and deceased was not a man of questionable charcter.6a
Appreciation
of evidence. Dying declaration. Great caution is to be taken before placing
reliance on a dying declaration because it is a weak piece of evidence as its
maker is not subjected to cross-examination.7
47.
Relevancy of certain evidence for proving, in subsequent proceedings, the truth
of facts therein stated. Evidence given by a witness in a judicial proceeding,
or before any person authorized by law to take it, is relevant for the purpose
of proving, in a subsequent judicial proceeding, or in a later stage of the
same judicial proceeding, the truth of the facts which states, when the witness
is dead or cannot be found, or is incapable of giving evidence, or is kept out
of the way by the adverse party, or if his presence cannot be obtained without
an amount of delay or expense which, under the circumstances of the case, the
Court considers unreasonable:
Provided that---
the proceeding was between the same parties or their representatives-in-interest;
Provided that---
the proceeding was between the same parties or their representatives-in-interest;
the
adverse party in the first proceeding had the right and opportunity to
cross-examine;
the
questions in issue were substantially the same in the first as in the second
proceeding.
Explanation. A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Article.
Explanation. A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Article.
STATEMENTS
MADE UNDER SPECIAL CIRCUMSTANCES
48. Entries in books of account when
relevant. Entries in books of account, regularly kept in the course
of business, are relevant whenever they refer to a matter into which the Court
has to enquire, but such statements shall not alone be sufficient evidence to
charge any person with liability.
Illustration
A
sues B for Rs. 1,000, and shows entries in his account books showing B to be
indebted to him to this amount. The entries are relevant, but are not
sufficient, without other evidence, to prove the debt.
COMMENTARY
Banker
and customer. Entries in account of account-holder by bank alleged that credit
entries in the account of account-holder were made by Bank by oral instructions
of the account-holders thus making deviation from the rule or practice of the
Bank. Burden would shift to the Bank alleging aid deviation to prove that said
credit entries were made on oral instructions of the account-holder. Where the
Bank failed to discharge the burden to prove the oral instructions, presumption
would be that account of account-holder was credited by the Bank only after
receiving the proper advice and cash.8
49.
Relevancy of entry in public record made in performance of duty. An entry in
any public or other official book, register or record, stating a fact in issue
or relevant fact, and made by a public servant in the discharge of his official
duty, or by any other person in performance of a duty specially enjoined by the
law of the country in which such book, register or record is kept, is itself a
relevant fact.
COMMENTARY
Entries
in death register maintained in regular course of business would be conclusive.
Presumption of correctness of such entries shall prevail over conflicting
entries about date of death in inheritance mutation.9
Death
entry made in 1918 when there was no dispute between parties. It remained in
existence ever since which enhanced its evidentiary value. Held; There was no
warrant for Courts below to have kept such death entry out of consideration.1
Long-standing
entry made in Register of Deaths in 1918. Evidentiary value. Entry of death in
Register of Deaths kept as a public record and having remained in existence
ever since 1918, had enhanced its evidentiary value. Courts below in keeping
such entry out of consideration had committed an illegality justifying High
Court to interfere in its revisional jurisdiction.2
Original
register maintaining death entries. Such register on the face of it appeared to
have been duly maintained in regular course of business and contained death
entry of person in question. Entries in such register were relevant under Art.
49, Qanun-e-Shahadat, 1984.3
50.
Relevancy of statements, in maps, charts and plans. Statements of facts in
issue or relevant facts made in published maps or charts generally offered for
public sale, or in maps or plans made under the authority of the Federal
Government or any Provincial Government, as to matters usually represented or
stated in such maps, charts or plans, are themselves relevant facts.
51.
Relevancy of statements as to facts of public nature, contained in certain Acts
or notifications. When the Court has to form an opinion as to the existence of
any fact of a public nature, any statement of it, made in a recital contained
in any Act of the Central Legislature or of any other legislative authority in Pakistan
52.
Relevancy of statements as to any law contained in law-books. When the Court
has to form an opinion as to a law of any country, any statement of such law
contained in a book purporting to be printed or published under the authority
of the Government of such country and to contain any such law, and any report
of a ruling of the Courts of such country contained in a book purporting to be
a report of such rulings, is relevant.
COMMENTARY
Foreign
law. Mode of proof. Foreign law can be proved by producing a book purporting to
be printed or published under the authority of the Government of the country
concerned containing a statement of the relevant law. Expert opinion on a
foreign law is also a relevant fact and therefore, an expert can also be
examined.4
HOW
MUCH OF A STATEMENT IS TO BE PROVED
53.
What evidence to be given when statement forms part of a conversation,
document, book or series of letters of papers. When any statement of which
evidence is given forms part of a longer statement, or of a conversation or
part of an isolated document, or is contained in a document which forms part of
a book or of a connected series of letters or papers, evidence shall be given
of so much and no more of the statement, conversation, document, book or series
of letters or papers as the Court considers necessary in that particular case
to the full understanding of the nature and effect of the statement, and of the
circumstances under which it was made.
JUDGMENTS
OF COURTS OF JUSTICE WHEN RELEVANT
54.
Previous judgments relevant to bar a second suit or trial. The existence of any
judgment, order or decree which by law prevents any Court from taking
cognizance of a suit or holding a trial, is a relevant fact when the question
is whether such Court ought to take cognizance of such suit or to hold such
trial.
55.
Relevancy of certain judgments in probate, etc., jurisdiction. A final
judgment, order or decree of a competent Court in the exercise of probate,
matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes
away from any person any legal character, or which declares any person to be
entitled to any such character, or to be entitled to any specific thing, not as
against any specified person but absolutely, is relevant when the existence of
any such legal character, or the title of any such person to any such thing, is
relevant.
Such
judgment, order or decree is conclusive proof---
that
any legal character which it confers accrued, at the time when such judgment,
order or decree came into operation;
that
any legal character, to which it declares any such person to be entitled,
accrued to that person at the time when such judgment, order or decree declares
it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;
that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;
and
that anything to which it declares any person to be so entitled was the
property of that person at the time from which such judgment, order or decree
declares that it had been or should be his property.
56.
Relevancy and effect of judgments, orders or decrees, other than those
mentioned in Article 55. Judgments, order or decrees other than those mentioned
in Article 55 are relevant if they relate to matters of a public nature
relevant to the enquiry; but such judgments, orders or decrees are not
conclusive proof of that which they state.
Illustrations
A
sues B for trespass on his land, B alleges the existence of a public right of
way over the land, which A denies.
The
existence of a decree in favour of the defendant, in a suit by A against C for
a trespass on the same land, in which C alleged the existence of the same right
of way, is relevant, but it is not conclusive proof that the right of way
exists.
57.
Judgments, etc. other than those mentioned in Articles 54 to 56, when relevant.
Judgments orders or decrees, other than those mentioned in Articles 54, 55 and
56, are irrelevant, unless the existence of such judgment, order or decree is a
fact in issue, or is relevant under some other provision of this Order.
Illustrations
(a)
A and B separately sue C for a libel which reflects upon each of them, C in
each case says that the matter alleged to be libelous is true, and the
circumstances are such that it is probably true in each case, or in neither.
A obtains a decree against C for damages on the ground that C failed to made out his justification. The fact is irrelevant as between B and C.
A obtains a decree against C for damages on the ground that C failed to made out his justification. The fact is irrelevant as between B and C.
(b)
A prosecutes B for adultery with C, A’s wife.
B
denies that C is A’s wife but the Court convicts B of adultery.
Afterwards,
C is prosecuted for bigamy in marrying B during A’s lifetime C says that she
never was A’s wife.
The
judgment against B is irrelevant as against C.
(c)
A prosecutes B for stealing a cow from him, B is convicted. A afterwards sues C
for the cow, which B had sold to him before his conviction. As between A and C,
the judgment against B is irrelevant.
(d)
A has obtained a decree for the possession of land against B. C, B’s son,
murders A in consequence.
The
existence of the judgment is relevant, as showing motive for a crime.
(e)
A is charged with theft and with having been previously convicted of theft. The
previous conviction is relevant as a fact in issue.
(f)
A is tried for the murder of B. The fact that B prosecuted A for libel and that
A was convicted and sentenced is relevant and under Article 21 as showing the
motive for the fact in issue.
58.
Fraud or collusion in obtaining judgment, or incompetency of Court, may be
proved. Any party to a suit or other proceeding may show that any judgment,
order or decree which is relevant under Article 54, 55 or 56, and which has
been proved by the adverse party, was delivered by a Court not competent to
deliver it, or was obtained by fraud or collusion.
OPINION
OF THIRD PERSONS WHEN RELEVANT
59.
Opinions of experts. When the Court has to form an opinion upon a point of
foreign law, of science, or art, or as to identity of hand-writing or finger
impressions, the opinion upon that point of persons specially skilled in such
foreign law, science or art or in questions as to identity of hand-writing or
finger impressions are relevant facts.
Such
persons are called experts.
Illustrations
Illustrations
(a)
The question is, whether the death of A was caused by poison. The opinion of
experts as to the symptoms produced by the poison by which A is supposed to
have died, are relevant.
(b)
The question is, whether A at the time of doing a certain act, was by reason of
unsoundness of mind, incapable of knowing he nature of the act, or that he was
doing what was either wrong or contrary to law.
The
opinions of experts upon the question whether the symptoms exhibited by
commonly show unsoundness of mind, and whether such unsoundness of mind usually
renders persons incapable of knowing the nature of the acts which they do, or
of knowing that what they do is either wrong or contrary to law, are relevant.
(c)
The question is, whether ascertain document was written by A. Another document
is produced which is proved or admitted to have been written by A.
The
opinions of experts on the question whether the two documents were written by
the same person or by different persons, are relevant.
COMMENTARY
Opinion
of finger-point expert taken on file without objection. Objection to mode of proof
at revisional stage. Competency. Opinion of finger-point expert was taken on
file by trial Court without any objection having been raised about its made of
proof. Neither in lower Appellate Court nor in grounds of revision objection
about improper admission of opinion of finger-print expert in evidence was
taken. Defendant in default of clear objection at appropriate time was
precluded from objecting to mode of proof regarding admission of opinion of
expert or his examination on commission in revision.5
Expert
opinion. Objection to mode of proof. In default of clear objection taken at the
appropriate time, defendant was precluded from objecting to the mode of proof
regarding admission of the opinion of expert or his examination on commission.
Such evidence was rightly read in evidence in Courts below.6
Criminal
trial. Whether the opinion of a person who had investigated the case does or
does not fall within the ambit of Arts. 59 to 65 of Qanun-e-Shahadat and
whether such an opinion could or could not be brought on record as legal
evidence. Statement of an Investigating Officer that according to his
investigation a particular person was innocent or guilty, as the case may be,
is an expression of opinion which expression or statement is irrelevant and inadmissible
in evidence.7
Opinion
of a witness. Evidentiary value. Exception.8
Belated
and unilateral examination of disputed signatures with those obtaining on
record by trial Court, without providing adequate opportunity of hearing to
contestants, would not only be irregular but even illegal, being violative of
principles of naturals justice.9
Disputed
handwriting or signatures of a person. Proof. Best way of proving disputed
handwriting or signature of a person. Natural variations in the signatures of a
person. Factors.1
Handwriting
Expert, opinion of. Evidentiary value. Opinion of Handwriting Expert supported
by reasons deserves preference if the opinion is in accord with the direct
evidence.2
Appeal
to Supreme Court. Suit for specific performance of agreement to sell property.
Allegation of forged signatures of executant on agreement to sell and other
contended documents. Handwriting Expert’s opinion and concurrent findings of
all the three Courts below was that signatures were not forged. Valuable property
being involved in the case and there being wild allegations of fraud, Supreme
Court made an exercise of comparison of the signatures of the executant with
the help of magnifying glass and found the reasonings advanced by the expert
quite plausible and convincing. Concurrent finding of fact of the three lower
forums regarding the genuineness of the agreement to sell also did not suffer
from any legal infirmity, misreading or non-reading of evidence. Supreme Court
declined interference in appeal.3
60.
Facts bearing upon opinions of experts. Facts, not otherwise relevant, are
relevant if they support or are inconsistent with the opinions of experts, when
such opinions are relevant.
Illustrations
(a)
The question is, whether A was poisoned by a certain poison. The fact that
other persons, who were poisoned by that poison, exhibited certain symptoms
which experts affirm or deny to be the symptoms of that poison, is relevant.
(b)
The question is, whether an obstruction to a harbour is caused by a certain
sea-wall.
The
fact that other harbours similarly situated in other respects, but where there
were no such sea-walls, began to be obstructed at about the same time, is
relevant.
61.
Opinion as to hand-writing when relevant. When the Court has to form an opinion
as to the person by whom any document was written or signed, the opinion of any
person acquainted with the handwriting of the person by whom it is supposed to
be written or signed that it was or was not written or signed by that person,
is a relevant fact.
Explanation.
A person is said to be acquainted with the handwriting of another person when
he has seen that person write, or when he has received documents purporting to
be written by that person in answer to documents written by himself or under
his authority and addressed to that person, or when, in the ordinary course of
business, documents purporting to be written by that person have been
habitually submitted to him.
Illustration
The
question is, whether a given letter is in the hand-writing of A, a merchant in London .
B
is merchant in Peshawar , who has written
letters addressed to A and received letter purporting to be written by him. C
is B’s clerk, whose duty it was to examine and file B’s correspondence. D is
B’s broker, to whom B habitually submitted the letters purporting to be written
by A for the purpose of advising him thereon.
The
opinions of B, C and D on the question whether the letter is in the
hand-writing of A are relevant, though neither B, C or D every saw A write.
COMMENTARY
Traced
forgery becomes virtually identical in outward form with the genuine signature
and unless a person is fully conversant with the signature and handwriting of
the other, it is not safe to base conviction upon such opinion alone.4
Handwriting
Expert’s opinion. Opinion of Handwriting Expert is nothing more than a mere
opinion of the person / Handwriting Expert who purports to have issued the same
and such opinion is not evidence until the person who has given it is brought
before the Court and is subjected to the test of cross-examination.5
62.
Opinion as to existence of right or custom, when relevant. When the Court has
to form an opinion as to the existence of any general custom or right, the
opinion, as to the existence of such custom or right, of persons who would be
likely to know of its existence if it existed, are relevant.
Explanation.
The expression “general custom or right” includes custom or rights common to
any considerable class of persons.
Illustration
The
right of the villagers of a particular village to use the water of a particular
well is a general right within the meaning of this Article.
63.
Opinion as to usages, tenets, etc., when relevant. When the Court has to form
an opinion as to---
the
usages and tenets of any body of men or family,
the
constitution and government of any religious or charitable foundation, or
the
meaning of words or terms used in particular districts or by particular classes
of people.
the
opinions of person having special means of knowledge thereon, are relevant facts.
64.
Opinion on relationship when relevant. When the Court has to form an opinion as
to the relationship of one person to another, the opinion, expressed by
conduct, as to the existence of such relationship, of any person who, as a
member of the family or otherwise, has special means of knowledge on the
subject, is a relevant fact;
Provided
that such opinion shall not be sufficient to prove a marriage in proceedings
under the Divorce Act, 1869 (IV of 1869), or in prosecutions under section 494
or 495 of the Pakistan Penal Code (Act XLV of 1860).
Illustrations
(a)
The question is, whether A and B were married.
The
fact that they were usually received and treated by their friends as husband
and wife, is relevant.
(b)
The question is, whether A was the legitimate son of B. The fact that A was
always treated as such by members of the family, is relevant.
COMMENTARY
Family
affairs. Best evidence. Best evidence regarding family affairs, would be that
of a close relative of both the parties. Witness produced by plaintiff claiming
that he was related to both parties yet he could not tell parentage of father
of parties and admitted in cross-examination that his nephew was married to
plaintiff’s daughter. Evidence of such witness did not inspire confidence and thus,
same could not be relied upon.6
Witnesses
deposing as to relationship of parties did not belong to the concerned village
and were not on visiting terms with the relevant families. Such persons would
not be presumed to have special means of knowledge as to the relationship of
parties concerned. Concurrent findings of Courts below on such aspect of the
case was eminently just, which neither suffered from any misreading of evidence
nor any non-reading of evidence nor was in defiance of any rule of appraisement
of evidence. Concurrent findings of Courts below were affirmed in
circumstances.7
Conduct
evidence. Opinion of a person expressed by conduct. Evidentiary value. Person
whose opinion was sought to be given in evidence, must be proved to have
special means of knowledge and then alone his opinion would be evidence.
Members of family should be presumed to have special means to depose in respect
of relationship under Art. 64, Qanun-e-Shahadat, 1984.8
65.
Grounds of opinion when relevant. Whenever the opinion of any living person is
relevant, the grounds on which such opinion is based are also relevant.
Illustration
An
expert may give an account of experiments performed by him for the purpose of
forming his opinion.
CHARACTER
WHEN RELEVANT
66.
In civil cases character to prove conduct imputed irrelevant. In civil cases
the fact that the character of any person concerned is such as to render
probable or improbable any conduct imputed to him is irrelevant, except insofar
as such character appears from facts otherwise relevant.
67.
In criminal cases previous good character relevant. In criminal proceedings the
fact that the person accused is of a good character is relevant.
68.
Previous bad character not relevant, except in reply. In criminal proceedings
the fact that the accused person has a bad character is irrelevant, unless
evidence has been given that he has a good character, in which case it becomes
relevant.
Explanation
1. This Articles does not apply to cases in which the bad character of any
person is itself a fact in issue.
Explanation
2. A previous conviction is relevant as evidence of bad character.
69.
Character as affecting damages. In civil cases the fact that the character of
any person is such as to affect the amount of damages which he ought to
receive, is relevant.
Explanation.
In Articles 66, 67, 68 and 69 the word “character” includes both reputation and
disposition: but, except as provided in Article 68, evidence may be given only
of general reputation and general disposition, and not of particular acts by
which reputation of disposition were shown.
CHAPTER
IV
OF ORAL EVIDENCE
OF ORAL EVIDENCE
70.
Proof of facts by oral evidence. All facts except the contents of documents,
may be proved by oral evidence.
COMMENTARY
Evidence,
oral and documentary. Misreading by Courts below. Effect. Three Courts below
misread evidence on the question whether plaintiffs were daughters of vendors
and failed to give proper consideration to material facts which had direct
bearing on such question. Admitted piece of evidence viz. Nikahnamas of
plaintiffs showed vendor as the father of plaintiffs; such document was
corroborated by the statement of Pesh Imam who had performed Nikah of
plaintiffs and such statement was further reinforced by Nikah Registrar who had
registered Nikah of plaintiffs. Nothing was brought out in cross-examination to
shake evidence of those witnesses who were independent witnesses. Birth
certificates being not clear were rightly discarded by Courts below. If Birth
certificates were to be excluded, documentary and oral evidence was sufficient
for concluding that plaintiffs were daughters of vendor. No reliable evidence
was produced in rebuttal. Evidence produced by vendees on such question did not
inspire confidence. Veracity of statement of plaintiff about the pedigree of
her father was not challenged in cross-examination. Plaintiffs were proved to
be the daughters of vendor. Three Courts below having misread evidence on the
question of relationship of plaintiffs with vendor had failed to give proper
consideration to material facts. Findings of three Courts below on such
question was set aside and plaintiffs were proved to be the daughters of
vendors on basis of material on record.9
Proof
of facts by oral evidence. Oral statement would not be of any value where
documentary evidence in support of such fact being available was not produced.1
71.
Oral evidence must be direct. Oral evidence must, in all cases whatever be
direct, that is to say---
If
it refers to a fact which could be seen, it must be the evidence of a witness
who says he saw it;
If
it refers to a fact which could be heard, it must be the evidence of a witness
who says he heard it;
If it refers to a fact which could be perceived by an other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to a fact which could be perceived by an other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If
it refers to an opinion or to the grounds on which that opinion is held, it
must be the evidence of the person who holds that opinion on those grounds:
Provided
that the opinions of experts expressed in any treatise commonly offered for
sale, and the grounds on which such opinions are held, may be proved by the
production of such treaties if the author is dead, or cannot be found, or has
become incapable of giving evidence, or cannot be called as a witness without
an amount of delay or expense which the Court regards as unreasonable:
Provided
further that, if oral evidence refers to the existence or condition of any
material thing other than a document, the Court may, if it thinks fit, require
the production of such material thing for its inspection:
Provided
further that, if a witness is dead, or cannot be found or has become incapable
of giving evidence, or his attendance cannot be procured without an amount of
delay or expense which under the circumstances of the case the Court regards as
unreasonable, a party shall have the right to produce shahadaala-alshahadah by
which a witness can appoint two witnesses to depose on his behalf, except in
the case of Hudood.
COMMENTARY
Application
of Art. 71, Qanun-e-Shahadat, 1984. Oral evidence means the evidence recorded
by the Court. Article 71 of Qanun-e-Shahadat, 1984 applies to oral evidence
which means the evidence recorded by the Court and does not apply to first
information report lodged with the police.2
CHAPTER
V
OF DOCUMENTARY EVIDENCE
OF DOCUMENTARY EVIDENCE
72.
Proof of contents of documents. The contents of documents may be proved either
by primary or by secondary evidence.
COMMENTARY
Arts.
72, 75, 78, 79. Court can consider a document admissible if a document produced
is on record but Presiding Officer has not put exhibit number on the document.
2a
Evidence,
admissibility of. Petitioner contended that copies of forms regarding sanction
of plan were not public documents and could not have been exhibited without
formal proof. Held: No objection having been raised when such documents were
tendered in evidence and exhibited, no objection could be allowed to be raised
at later stage in revision.3
Non-production
of original document before Settlement Authorities. Effect. Joint allotted of
shop in dispute. Defendant claimed that plaintiff had surrendered his claim to
the extent of his ½ share in shop in question and had executed deed of
surrender in his favour. Such deed, however, having not been placed before
Settlement Authorities, could not be verified and accepted after notice without
recording the statement of plaintiff. Deed of surrender, therefore, had no
value and on basis thereof, P.T.D. for the whole shop should not have been
issued in favour of defendant alone. Permanent Transfer Deed issued in favour
of defendant to the extent of plaintiff’s share in shop in question, was thus
not valid.4
73.
Primary evidence. “Primary evidence” means the document itself produced for the
inspection of the Court.
Explanation
1. Where a document is executed in several parts, each part is primary evidence
of the document.
Where
a document is executed in counterpart, each counterpart being executed by one
or some of the parties only, each counterpart is primary evidence as against
the parties executing it.
Explanation
2. Where a number of documents are all made by one uniform process, as in the
case of printing, lithography or photography, each is primary evidence of the
contents of the rest; but, where they are all copies of a common original, they
are not primary evidence of the contents of the original.
Illustration
A
person is shown to have been in possession of a number of placards, all printed
at one time from one original. Any one of the placards is primary evidence of
the contents of any other, but no one of them is primary evidence of the
contents of the original.
COMMENTARY
To
prove contents of documents, claimant is bound to produce primary or secondary
evidence unless execution of the same is admitted by the opponent.5
74.
Secondary evidence. --- “Secondary evidence” means and includes---
(1)
certified copies given under the provisions hereinafter contained;
(2)
copies made from the original by mechanical processes which in themselves
insure the accuracy of the copy, and copies compared with such copies;
(3)
copies made from or compared with the original;
(4)
counterparts of documents as against the parties who did not execute them;
(5)
oral accounts of the contents of a document given by some person who has
himself seen it.
Illustrations
(a)
A photograph of an original is secondary evidence of its contents though the
two have not been compared, if it is proved that the thing photographed was the
original.
(b)
A copy, compared with a copy of a letter made by a copying machine is secondary
evidence of the contents of the letter, if it is shown that the copy made by
the copying machine was made from the original.
(c)
A copy transcribed from a copy, but afterwards compared with the original is
secondary evidence; but the copy not so compared is not secondary evidence of
the original, although the copy from which it was transcribed was compared with
the original.
(d)
Neither an oral account of a copy compared with the original, nor an oral
account of a photograph or machine-copy of the original, is secondary evidence
of the original.
COMMENTARY
Report
of Magistrate would be enough to justify attraction of Art. 76(c) for purpose
of production of secondary evidence in terms of Art. 74.4a
Qanun-e-Shahadat
Order is applicable to Provincially Administered Tribal Areas including
Malakand Division. Murder cases cannot be decided on basis of Qasamat as it is
not recognized as a mode of evidence under Qanun-e-Shahadat Order. Courts in
PATA should follow provisions of Qanun-e-Shahadat Order, particularly Art. 17,
in their true perspective.
75.
Proof of documents by primary evidence. --- Documents must be proved by primary
evidence except in the cases hereinafter mentioned.
COMMENTARY
Execution
of sale-deed by a person claiming to be holding power-of-attorney from the
owner. Owner denying having executed any power-of-attorney in favour of said
person. Original power-of-attorney was not produced in Court, Photostat copy
produced could not, in the absence of original, be taken into consideration.
Person holding purported power-of-attorney did not appear in Court to contest
suit by the owner (plaintiff). Defendant (vendee) acknowledge in his statement
before Court that he was not supplied original power-of-attorney at the time of
execution of sale-supplied original power-of-attorney at the time of execution
of sale-deed. Power-of-attorney was thus, a forged document and person
executing sale-deed on basis thereof, had no authority to execute any sale-deed
on behalf of the owner (plaintiff). Sale-deed executed in favour of
vendee-defendant was, thus, not valid.6
76.
Cases in which secondary evidence relating to document may be given. ---
Secondary evidence may be given of the existence, condition or contents of a
document in the following cases:---
(a)
when the original is shown or appears to be in the possession or power of the
person against whom the document is sought to be proved, or of any person out
of reach of, or not subject to, the process of the Court; or of any person
legally bound to produce it; and when, after the notice mentioned in Article 77
such person does not produce it;
(b)
when the existence, condition or contents of the original have been proved to
be admitted in writing by the person against whom it is proved or by his representative-in-interest;
(c)
when the original has been destroyed or lost, or when the party offering
evidence of its contents cannot, for any other reason not arising from his own
default or neglect, produce it in reasonable time;
(d)
when, due to the volume or bulk of the original, copies thereof have been made
by means of microfilming or other modern devices;
(e)
when the original is of such a nature as not to be easily movable;
(f)
when the original is a public document within the meaning of Article 85;
(g)
when the original is a document of which a certified copy is permitted by this
Order, or by any other law in force in Pakistan
(h)
when the originals consists of numerous accounts or other documents which
cannot conveniently be examined in Court, and the fact to be proved is the
general result of the whole collection;
(i)
when an original document forming part of a judicial record is not available
and only a certified copy thereof is available, certified copy of that certified
copy shall also be admissible as a secondary evidence.
In
cases (a), (c), (d) and (e), any secondary evidence of the contents of the
document is admissible.
In case (b), the written admission is admissible.
In case (b), the written admission is admissible.
In
case (f) or (g), certified copy of the document, but no other kind of secondary
evidence, is admissible.
In
case (h), evidence may be given as to the general result of the documents by
any person who has examined them, and who is skilled in the examination of such
document.
COMMENTARY
Secondary
evidence of report of identification parade cannot be allowed or permitted to
be adduced when no effort had been made to locate the original report of
identification parage.6a
77.
Rules as to notice to produce. --- Secondary evidence of the contents of the
documents referred to in Article 76, paragraph (a) shall not be given unless
the party proposing to give such secondary evidence has previously given to the
party in whose possession or power the document is, or to his advocate, such
notice to produce it as is prescribed by law; and, if no notice is prescribed
by law, then such notice as the Court considers reasonable under the
circumstances of the case;
Provided
that such notice shall not be required in order to render secondary evidence
admissible in any of the following cases, or in any other case in which the
Court thinks fit to dispense with it:---
(1)
when the document to be proved is itself a notice;
(2)
when, from the nature of the case, the adverse party must know that he will be
required to produce it;
(3)
when it appears or is proved that the adverse party has obtained possession of
the original by fraud or force;
(4)
when the adverse party or his agent has the original in Court;
(5)
when the adverse party or his agent has admitted the loss of the document;
(6)
when the person in possession of the document is out of reach of, or not
subject to, the process of the Court.
78.
Proof of signature and handwriting of person alleged to have signed or written
document produced. If a document is alleged to be signed or to have been
written wholly or in part by any person, the signature of the handwriting of so
much of the document as is alleged to be in that person’s handwriting must be
proved to be in his handwriting.
COMMENTARY
Suit
for specific performance of agreement to sell property. Disputed signatures.
Plaintiff is required to prove the signatures of the executant of the
agreement.7
79.
Proof of execution of document required by law to be attested. If a document is
required by law to be attested, it shall not be used as evidence until two
attesting witnesses at least have been called for the purpose of proving its
execution, if there be two attesting witnesses alive, and subject to the
process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
COMMENTARY
Revisional
jurisdiction, exercise of. Courts below had recorded very cogent reasons for
decreeing plaintiff’s suit by placing reliance upon circumstantial evidence as
also on evidence on record for coming to conclusion that neither document in
question, was proved to have been executed nor the same was verified in
accordance with law. Original document was also not placed on record. Findings
recorded by Courts below on the question of execution of alleged document being
lawful could not be interfered with. Judgments and decrees of Courts below were
maintained in circumstances.8
Proof
of execution of private document. Execution of such document had to be proved
by examining the scribe and an attesting witness. Such persons having not been
examined, document in question, would be deemed to have not been proved and
could be excluded from consideration.9
Agreement
to sell. Proof and admissibility. Scribe of document when a competent witness.
Evidence of one marginal witness and scribe. Evidentiary value of. Agreement to
sell was proved through the statement of one marginal witness and scribe of the
document in question. Ordinarily a scribe who had merely scribed a document and
handed it over to parties for their signatures and the signatures of attesting
witnesses would not become competent attesting witness, if such document was
executed elsewhere in his absence. Where, however, document in question, was
actually executed in presence of scribe and parties and attesting witnesses had
signed the same in his presence, he (scribe) could be treated as attesting
witness although he had not signed the document in that capacity.1
Agreement
to sell. Execution of. Proof of. Parties had executed document in presence of
scribe and signed it. Even attesting witnesses had signed document in presence
of scribe. Scribe can be treated to be an attesting witness although he has not
signed it in that capacity. Requirements of provisions of Article 79 read with
Article 17 of Qanun-e-Shahadat have been substantially complied with.
Admittedly original document as placed on record, but record having been burnt,
was reconstructed under orders of High Court. No objection was raised at time
of reconstruction of file regarding genuineness of agreement to sell. Held: No
jurisdiction defect in impugned judgments and decrees of Courts below or any
misreading or non-reading of evidence has been pointed out to justify
interference in concurrent findings of fact recorded by Courts below. Petition
dismissed.2
Marginal
witnesses of disputed deed. Evidentiary value of. No lacuna in the evidence of
marginal witnesses was apparent or pointed out, therefore, their veracity could
not be described. Evidence of such witnesses, alone was sufficient to prove the
document in question, even if other evidence was altogether ignored.3
Proof
of execution of document required by law to be attested. Exception. Documents
required by law to be attested would not be used as evidence until two
attesting witnesses, who if alive were amenable to jurisdiction of Court and
capable of giving evidence were produced. Not necessary to call attesting
witnesses to prove execution of a documents, which was (not a will) registered
in accordance with Registration Act, 1908, unless execution thereof, was
specifically denied by the person who allegedly executed the document. Document
in question, being registered one, and its existence having not been denied,
its execution could be proved by certified copy thereof.4
80.
Proof where no attesting witness found. If no such attesting witness can be
found, it must be proved that the witness have either died, or cannot be found
and that the document was executed by the person who purports to have done so.
81.
Admission of execution by party to attested document. The admission of a party
to an attested document of its execution by himself shall be sufficient proof
of its execution as against him, though it be a document required by law to be
attested.
82.
Proof when attesting witness denies the execution. If the attesting witness
denies or does not recollect the execution of the document, its execution may
be proved by other evidence.
83.
Proof of document not required by law to be attested. An attested document not
required by law to be attested may be proved as if it was un-attested.
84.
Comparison of signature, writing or seal with others admitted or proved. (1) In
order to ascertain whether a signature, writing or seal is that of the person
by whom it purports to have been written or made any signature, writing or seal
admitted or proved to the satisfaction of the Court to have been written or
made by that person may be compared with the one which is to be proved,
although that signature, writing or seal has not been produced or proved for
any other purpose.
(2)
The Court may direct any person present in Court to write any words or figures
for the purpose of enabling the Court to compare the words or figures so
written with any words or figures alleged to have been written by such person.
(3)
This Article applies also, with any necessary modifications, to
finger-impressions.
COMMENTARY
Comparison
of signatures. Genuineness. Trial Court’s competency to compare signatures.
Where parties had not brought forward any expert witness to given opinion about
genuineness of signatures in question, trial Court would be competent to form
its own opinion by comparing disputed signatures with admitted signature.5
Comparison
of signatures. High Court compared signatures of vendee on disputed document
with his signatures on admitted document to find out if the signatures were in
fact of the same person i.e., vendee.6
Comparison
of signatures on questioned document with signatures on admitted documents by
Court. Deceased, whose signatures were in dispute being illiterate could not
affix proper signatures, therefore, his signatures would fall in the category
of “shaky signatures”. Close scrutiny of signatures on questioned documents
when compared with admitted signatures, revealed, prima faice that those
signatures were of one and the same person. Trial Court had thus, correctly
discharged its duty while making comparison of disputed signatures with
admitted signatures.7
85.
Public documents. The following documents are public documents: ---
(1)
documents forming the acts or records of the acts---
(i)
of the sovereign authority;
(ii)
of official bodies and tribunals; and
(iii)
of public officers, legislative, judicial and executive, of any part of Pakistan
(2)
public records kept in Pakistan
(3)
documents forming part of the records of judicial proceedings;
(4)
documents required to be maintained by a public servant under any law; and
(5)
registered documents the execution whereof is not disputed.
86.
Private documents. All other documents are private.
87. Certified copies of public documents. Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
87. Certified copies of public documents. Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
Explanation.
Any officer, who, by the ordinary course of official duty, is authorized to
deliver such copies, shall be deemed to have the custody of such documents
within the meaning of this Article.
88.
Proof of documents by production of certified copies. Such certified copies may
be produced in proof of the contents of the public documents or parts of the
public documents of which they purport to be copies.
89.
Proof of other public documents. The following public documents may be proved
as follows: --
(1)
Acts, orders or notifications of the Federal Government in any of its
departments, or of any Provincial Government or any department of any
Provincial Government by the records of the departments, certified by the Heads
of those departments respectively, or by any document purporting to be printed
by order of any such Government;
(2)
the proceedings of the Legislatures,-- by the journal of those bodies
respectively, or by published Acts or abstracts, or by copies purporting to be
printed by order of the Government concerned;
(3)
the Acts of the Executive or the proceedings of the Legislature of a foreign
country,-- by journals published by their authority, or commonly received in
that country as such or by a copy certified under the seal of the country or
sovereign, or by a recognition thereof in some Federal Act;
(4)
the proceedings of a municipal body in Pakistan,-- by a copy of such
proceedings certified by the legal keeper thereof, or by a printed book
purporting to be published by the authority of such body;
(5)
public documents of any other class in a foreign country,-- by the original, or
by a copy certified by the legal keeper thereof, with a certificate under the
seal of a notary public, or of a Pakistan Consul or diplomatic agent, that the
copy is duly certified by the officer having the legal custody of the original,
and upon proof of the character of the document according to the law of foreign
country.
COMMENTARY
Foreign
document. Mode of proof. Foreign document can be proved by the original or by
certified copy thereof, which must be certified by legal keeper of document,
certificate of Notary Public and Pakistan’s Diplomatic Agent in that country.
Presumption of genuineness and accuracy would attach to certified copies of
foreign judicial record, if they were certified in said manner.8
PRESUMPTION
AS TO DOCUMENTS
90.
Presumption as to genuineness of certified copies. (1) The Court shall presume
every document purporting to be a certificate, certified copy or other
document, which is by law declared to be admissible as evidence of any
particular fact and which purports to be duly certified by any officer of the
Federal Government or a Provincial Government to be genuine:
Provided
that such document is substantially in the form and purports to be executed in
the manner directed by law in that behalf.
(2)
The Court shall also presume that any officer by whom any such document
purports to be signed or certified, held, when he signed it, the official
character which he claims in such document.
91. Presumption as to documents produced as record of evidence. Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness is a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by the Judge or Magistrate or by any such officer as aforesaid, the Court shall presume---
that
the document is genuine; that any statements as to the circumstances under
which it was taken, purporting to be made by the person signing it, are true,
and that such evidence, statement or confession was duly taken.
92.
Presumption as to genuineness of documents kept under any law. The Court shall
presume the genuineness of every document purporting to be a document directed
by any law to be kept by any person, if such document is kept substantially in
the form required by law and is produced from proper custody.
93.
Presumption as to maps or plans made by authority of Government. The Court
shall presume that maps or plans purporting to be made by the authority of the
Federal Government or any Provincial Government were so made, and are accurate;
but maps or plans made for the purposes of any cause must be proved to be
accurate.
94.
Presumption as to collections of laws and reports of decision. The Court shall
presume the genuineness of every book purporting to be printed or published
under the authority of the Government of any country, and to contain any of the
laws of that country, and of every book purporting to contain reports of
decision of the Courts of such country.
95.
Presumption as to powers-of-attorney. The Court shall presume that every
document purporting to be a power-of-attorney, and to have been executed
before, and authenticated by, a notary public, or any Court, Judge, Magistrate, Pakistan
Consul or Vice-Consul, or representative of the Federal Government, was so
executed and authenticated.
96.
Presumption as to certified copies of foreign judicial records. (1) The Court
may presume that any document purporting to be a certified copy of any judicial
record of any country not forming part of Pakistan is genuine and accurate, if
the document purports to be certified in any manner which is certified by any
representative of the Federal Government in or for such country to be the
manner commonly in use in that country for the certification of copies of
judicial records.
(2)
An officer who, with respect to any territory or place not forming part of
Pakistan, is a Political Agent therefore, as defined in section 3, clause (40),
of the General Clauses Act, 1897 (X of 1897), shall for the purposes of clause
(1), be deemed to be a representative of the Federal Government in or for the
country comprising that territory or place.
97.
Presumption as to books, maps and charts. The Court may presume that any book
to which it may refer for information on matters of public or general interest,
and that any published map or chart, the statements or which are relevant facts
and which is produced for its inspection, was written and published by the
person, and at the time and place, by whom or at which it purports to have been
written or published.
98.
Presumption as to telegraphic messages. The Court may presume that message,
forwarded from a telegraph office to the person to whom such message purports
to be addressed, corresponds with a message delivered for transmission at the
office from which the message purports to be sent; but the Court shall not make
any presumption as to the person by whom such message was delivered for
transmission.
99.
presumption as to due execution, etc., of documents not produced. The Court
shall presume that every document, called for and produced after notice to
produce, was attested, stamped and executed in the manner required by law.
100.
Presumption as to documents thirty years old. Where any document, purporting or
proved to be thirty years old, is produced from any custody which the Court in
the particular case considers proper, the Court may presume that the signature
and every other part of such document, which purports to be in the handwriting
of any particular person, is in that persons; handwriting, and, in the case of
a document executed or attested, that it was duly executed and attested by the
persons by whom it purports to be executed and attested.
Explanation.
For the purposes of this Article and Article 92, documents are said to be in
proper custody if they are in the place in which, and under the care of the
person with whom, they would naturally be; but no custody is improper if it is
proved to have had a legitimate origin, or it the circumstances of the
particular case are such as to render such an origin probable.
Illustrations
(a)
A has been in possession of landed property for long time. Her produces from
his custody deeds relating to the land, showing his titles to it. The custody
is proper.
(b)
A produces deeds relating to landed property of which he is the mortgagee. The
mortgagor is in possession. The custody is proper.
(c)
A, a connection of B, produces deeds relating to lands in B’s possession which
were deposited with him by B for safe custody. The custody is proper.
COMMENTARY
Presumption
about genuineness of documents thirty years old. Raising of presumption or
refusing to raise presumption is discretionary with Court as Art 100 lays down
that the Court “may presume” and not that Court “shall presume”. However, like
all other discretions, discretion under Art. 100 should be exercised indicially.
Court may refuse to raise presumption where it has reasons to believe the
document to be a fabrication or when grave suspicion attaches to it.10
101.
Certified copy of documents thirty years old. --- The provisions of Article 100
shall apply to such copy of a document referred to in that Article as is
certified in the manner provided in Article 87 and is not less than thirty
years old; and such certified copy may be produced ill proof of the contents of
the document or part of the document of which it purports to be a copy.
CHAPTER VI
OF THE EXCLUSION OF ORAL BY DOCUMENTARY
EVIDENCE
OF THE EXCLUSION OF ORAL BY DOCUMENTARY
EVIDENCE
102.
Evidence of terms of contracts, grants and other disposition of property
reduced to form of documents. --- When the terms of a contract, or of a grant,
or of any other disposition of property, have been reduced to the form of a
document, and in all cases in which any matter is required by law to be reduced
to the form of a document, no evidence shall be given in proof of the terms of
such contract, grant or other disposition of property, or of such matter,
except the document itself, or secondary evidence of its contents in cases in
which secondary evidence of its contents in cases in which secondary evidence
is admissible under the provisions hereinbefore contained.
Exception
1. When a public officer is required by law to be appointed in writing, and
when it is shown that any particular person has acted as such officer, the
writing by which he is appointed need not be proved.
Exception
2. Wills admitted to probate in Pakistan
Explanation
1. This Article applies equally to cases in which the contracts, grants or
dispositions of property referred to are contained in one document and to cases
in which they are contained in more documents than one.
Explanation
2. Where there are more originals than one, are original only need be proved.
Explanation 3. The statement, in any document whatever, of a fact other than the facts referred to in this Articles, shall not preclude the admission of oral evidence as to the same fact.
Explanation 3. The statement, in any document whatever, of a fact other than the facts referred to in this Articles, shall not preclude the admission of oral evidence as to the same fact.
Illustrations
(a)
If a contract be contained in several letters, all the letters in which it is
contained must be proved.
(b)
If a contract is contained in a bill of exchange, the bill of ex change must be
proved.
(c)
If a bill of exchange is drawn in a set of three, one only need be proved.
(d)
A contracts, in writing with B, for the delivery of indigo upon certain terms.
The contract mentions the fact that B had paid A the price of other indigo
contracted for verbally on another occasion.
Oral
evidence is offered that no payment was made for the other indigo. The evidence
is admissible.
(e)
A gives B a receipt for money paid by B. Oral evidence is offered of the
payment. The evidence is admissible.
COMMENTARY
Oral
evidence relating to contents of documents was inadmissible.1
Exclusion
of oral evidence by documentary evidence. Where payment of consideration was
evidence by document only that document would be considered as proof of such
consideration and no oral evidence would be admissible.2
103.
Exclusion of evidence of oral agreement. When the terms of any such contract,
grant or other disposition of property, or any matter required by law to be
reduced to the form of a document, have been proved according to the last
Article, no evidence of any oral agreement or statement shall be admitted, as
between the parties to any such instrument or their
representatives-in-interest, for the purpose of contradicting, varying adding
to, or subtracting from, its terms;
Proviso
(1). Any fact may be proved which would invalidate any document, or which would
entitle any person to any decree or order relating thereto; such as fraud,
intimidation, illegality, want of due execution, want of capacity in any
contracting party, want or failure of consideration, or mistake in fact or law.
Proviso
(2). The existence of any separate oral agreement as to an matter on which a
document is silent, and which is not inconsistent with its terms may be proved.
In considering whether or not to this proviso applies, the Court shall have
regard to the degree of formality of the document.
Proviso
(3). The existence of any separate oral agreement,, constituting a condition
precedent to the attaching of any obligation under any such contract, grant or
disposition of property, may be proved.
Proviso
(4). The existence of any distinct subsequent oral agreement to rescind or
modify any such contract, grant, or disposition of property, may be proved,
except in case in which such contract, grant or disposition or property is by
law required to be in writing, or has been registered according to the law
inforce for the time being as to the registration of documents.
Proviso
(5). Any usage of custom by which incidents not expressly mentioned in any
contract are usually annexed to contract of that description, may be proved:
Provided
that the annexing of such incident would not be repugnant to, or inconsistent
with, the express terms of the contract.
Proviso
(6). Any fact may be proved which shows in what manner the language of a
document is related to existing facts.
Illustrations
(a)
A policy of insurance is effected on goods “in ships from Karachi to London ”. The goods are shipped in a particular ship which
is last. The fact that particular ship was orally excepted from the policy
cannot be proved.
(b)
A agrees absolutely in writing to pay B Rs. 1,000 on the first March, 1984 . The fact that, at
the same time, an oral agreement was made that the money should not be paid
till the thirty-first March cannot be proved.
(c)
An estate called “the Khanpur estate” is sold by a deed which contains a map of
the property sold, the fact that land not included in the map had always been
regarded as part of the estate and was meant to pass by the deed cannot be
proved.
(d)
A enters into a written contract with B to work certain mines, the property of
B, upon certain terms. A was induced to do so by a misrepresentation of B’s as
to their value. This fact may be proved.
(e)
A institutes a suit against B for the specified performance of a contract and
also prays that the contract may be reformed as to one of its provisions, as
that provisions was inserted in it by mistake. A may prove that such a mistake
was made as would by law entitle him to have the contract reformed.
(f)
A orders goods of B by letter in which nothing is said as to the time of
payment, and accepts the goods on delivery. B sues A for the price. A may show
that the goods were supplied on credit for a term still unexpired.
(g)
A sells B a horse and verbally warrants him sound. A gives B a paper in these
words “Bought of A a horse for Rs.500”. B may prove the verbal warranty.
(h)
A hires lodging of B, and gives a card on which is written “Rooms, Rs. 200 a
month.” A may prove a verbal agreement that these terms were to include partial
board.
A
hires lodging of B for a year, an regularly stamped agreement, drawn up by an
advocate is made between them. It is silent on the subject of board. A may not
prove that board was included in the terms verbally.
(i)
A applies to B for a debt due to A by sending a receipt for the money. B keeps
the receipt and does not sent the money. In a suit for the amount A may prove
this.
(j)
A and B make a contract in writing to take effect upon the happening of a
certain contingency. The writing is left with B, who sues A upon it. A may show
the circumstances under which it was delivered.
COMMENTARY
Art.
103 --- Exclusion of evidence of oral agreement --- Party cannot be permitted
to adduce oral agreement or statement to contradict or vary the terms of proved
agreement executed by him.1a
Pre-emption
suit. Compromise. Document of compromise was not stamped and element of
consideration was conspicuously missing in the same. Such document being not a
contract, grant, or other disposition of property reduced to the form of
document to exclude evidence of oral agreement within the contemplation of Art.
103. Qanun-e-Shahadat, case was not covered by O.XXIII, R. 3, C.P.C.3
Pre-emption
suit. Compromise. If the document is silent with regard to matter about which
oral agreement exists, then the same is allowed to be proved provided that same
is not inconsistent with the document.4
Liquidated
damages. Omission in agreement to sell to describe property which was intended
to be sold. Such omission could validly be proved by oral evidence that
specific property was agreed to be sold. Parties to a document could show by
other evidence that a writing executed by them did not represent a completed
transaction. Extrinsic evidence to determine the effort of an instrument was
permissible where there was doubt as to its true meaning. Conduct of parties
was admissible where a document was obscurely framed or any of its clauses
contained a doubt as to its true meaning. Courts below on basis of oral
evidence had rightly decided that defendant had been guilty of breach of
contract and was liable for such breach to pay agreed amount as damages.5
Agreement
to sell. Document of. Whether oral evidence could be led to prove property
which was intended to be sole. Question of. No doubt Article 102 excludes
extrinsic evidence in proof of a contract, grant or other disposition of
property. Under proviso (2) to Article 103, parties to a document may show by
other evidence that a writing executed by them does not represent a completed
transaction. Extrinsic evidence is also permissible to determine effect of an
instrument where its true meaning are doubtful. Held: Other evidence is
admissible to prove property which was intended to be sold but was omitted to
be described in agreement. Petition dismissed.6
104.
Exclusion of evidence against application of document to existing facts. When
language used in a document is plain in itself, and when it applied accurately
to existing acts, evidence may not be given to show that it was not meant to
apply to such facts.
Illustration
A
sells to, by deed, “my estate at Rangpur containing 100 bighas.” A has an
estate at Rangpur containing 100 bighas. Evidence may not be given of the fact
that the estate meant to be sold was not situated at the different place and of
a different size.
105.
Evidence as to document unmeaning in reference to existing facts. When language
used in a document in plain is itself, but is unmeaning in reference to
existing facts, evidence may be given to show that it was used in a peculiar
sense.
Illustration
A
sells to B, by deed “my house in Karachi .”
A
had no house in Karachi , but it appears that
he had a house at Keamari, of which B had been in possession since the
execution of the deed.
These
facts may be proved to show that the deed related to the house at Keamari.
106.
Evidence as to application of language which can apply to one only, of several
persons. When the facts are such that the language used might have been meant
to apply to any one, and could not have been meant to apply to more than one,
of several persons or thing, evidence may be given of facts which show which of
those persons or things it was intended to apply to.
Illustrations
(a)
A agrees to sell to B, for Rs. 1,000 “my white horse.” A has two white horses.
Evidence may be given of acts which show which of them was meant.
(b)
A agrees to accompany B to Hyderabad . Evidence
may be given of facts showing whether Hyderabad in the Dekkhan or Hyderabad in Sindh was meant.
107.
Evidence as to application of language to one of two sets of facts to neither
of which the whole correctly applies. When the language used applies partly to
one set of existing facts, and partly to another set of existing facts, but the
whole of it does not apply correctly to either, evidence may be given to show
to which of the two it was meant to apply.
Illustration
A
agrees to sell to B “my land at X in the occupation of Y”. A has land at X, but
not in the occupation of Y, and he has land in the occupation of Y, but it is
to at X. Evidence may be given of facts showing which he meant to sell.
108.
Evidence as to meaning of illegible characters, etc. Evidence may be given to
show the meaning of illegible or not commonly intelligible characters, of
foreign, absolute, technical, local and provincial expressions, of
abbreviations and of words used in a peculiar sense.
Illustration
A
a sculptor, agrees to sell to B, “All my mods.”
A
has both models and modeling tools. Evidence may be given to show which he
meant to sell.
109.
Who may give evidence of agreement varying terms of document. Persons who are
not parties to a document, or their representatives-in-interest, may give
evidence of any facts tending to show a contemporaneous agreement varying the
terms of the document.
Illustration
A
and B make a contract in writing that B shall sell A certain cotton, to be paid
for on delivery. At the same time they make an oral agreement that three months
credit shall be given to A. This could not be show as between A and B, but it
might be shown by C, if it affected his interest.
110.
Saving of provisions of Succession Act relating to wills. Nothing in this
Chapter contained shall be taken to affect any of the provisions of the
Succession Act, 1925 (XXXIX of 1925), as to the construction of wills.
PART II
ON PROOF
CHAPTER VII
FACTS WHICH NEED NOT BE PROVED
ON PROOF
CHAPTER VII
FACTS WHICH NEED NOT BE PROVED
111.
Fact judicially noticeable need not be proved. No fact of which the Court will
take judicial notice need be proved.
112.
Facts of which Court must take judicial notice. (1) The Court shall take
judicial notice of the following facts: ---
(a)
All-Pakistan laws:
(b)
Articles of War for the Armed Force;
(c)
the course of proceeding of the Central Legislature and any person is
authorized to use by any Legislature established under any law for the time
being in force in Pakistan
(d)
the seals of all the Courts in Pakistan and of all Courts out of Pakistan
established by the authority of the Federal Government or the Government
representative, the seals of Courts of Admiralty and Maritime Jurisdiction and
of Notaries Public and all seals which by any Act or Regulation having the
force of law in Pakistan;
(e)
the accession to office, names, titles, functions and signatures of the persons
filling for the time being any public office in Pakistan, if the fact of their
appointment to such office is notified in the official Gazette;
(f)
the existence, title and national flag of every State or Sovereign recognized
by the Federal Government;
(g) the divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the official Gazette;
(g) the divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the official Gazette;
(h)
the territories under the dominion of Pakistan
(i)
the commencement, continuance and termination of hostilities between Pakistan
(j)
the names of the members and officers of the Court and of their deputies and
subordinate officers and assistants, and also of all officers acting in
execution of its process, and of all Advocates and other persons authorized by
law to appear or act before it;
(k)
the rule of the road on land or at sea.
(2)
In all cases referred to in clause (1), and also on all matters of public
history, literature, science or art, the Court may resort for its aid to
appropriate books or documents of reference.
(3)
If the Court is called upon by any person to take judicial notice of any fact,
it may refuse to do so unless and until such person produces any such book or
document as it may consider necessary to enable it to do so.
COMMENTARY
Official
Gazette notification can be looked into by Court and judicial notice can be
taken under Art. 112.6a
113.
Facts admitted need not be proved. --- No fact need be proved in any proceeding
which the parties thereto or their agents agree to admit at the hearing, or
which, before the hearing, they agree to admit by any writing under their
hands, or which by any rule or pleading in force at the time they are deemed to
have admitted by their pleadings:
Provided
that the Court may, in its discretion, require the facts admitted to be proved
otherwise than by such admissions.
COMMENTARY
Suit
for specific performance of agreement to sell --- Respondent admitted the
execution of agreements in her first written statement and in her
cross-examination, but she subsequently in amended written statement took the
plea that agreements were fictitious, forged and fraudulent --- Trial Court
decreed the suit, but was set aside by Appellate and Revisional Court ---
Validity --- Admission made by respondent in her first written statement would
be binding on her under Art. 113 of Qanun-e-Shahadat, 1984 --- Such admission
stood corroborated by her own further statement made in cross-examination with
regard to due execution of agreements and passing of consideration, besides
overwhelming oral and documentary evidence of appellant and her marginal
witnesses --- Subsequent denial of execution of agreements and receipt of
amounts stated therein, and non-mentioning of Identity Cards of respondent and
marginal witnesses in the agreements would not make them doubtful ---
Respondent could not be allowed to lead oral agreement or make statement to
contradict, vary, add or subtract the terms of agreements, which were reduced
into writing under Art. 103 of Qanun-e-Shahadat, 1984 --- Inconsistent conduct
and denial of admitted facts by respondent proved that she had not come to
Court with clean hands --- Supreme Court allowed the appeal and set aside the
impugned judgments and decrees and restored that passed by the Trial Court.7
CHAPTER VIII
ESTOPPEL
114.
Estoppel. When one person has by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing to be true
and to act upon such belief, neither he nor his representative shall be
allowed, in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing.
Illustration
A
intentionally and falsely leads B to believe that certain land belongs to A,
and thereby induces B to buy and pay for it.
The
land afterwards becomes the property of A, and A seeks to set aside the sale on
the ground that, at the time of the sale, he had no title. He must not be
allowed to prove his want of title.
COMMENTARY
Estoppel.
If a party, by it conduct obliges the Court to adopt a course which is contrary
to its practice, that party will be debarred from raising objection as to the
procedure on the very salutary principle that after having led the Court to do
a certain thing for the benefit of the parties, none of them can be allowed to
challenges the same.7
Estoppel.
Once a mode (procedure) is adopted by the High Court on the request of the
parties, the decision given in pursuance of that mode should be given effect
to. Necessary corollary of such rule would be that the same parties were
estopped from subsequently challenging that mode of decision in an appeal.8
Estoppel.
Party accepting a benefit under a compromise, an award, or a partition was
estopped from questioning the transaction.9
Non-raising
of question of limitation would neither be waiver nor estoppel.1
Estoppel.
Where a party persuaded a Tribunal to adopt a particular course for determining
the issue in question and accepted benefit of such, arrangement, he cannot be
allowed to repudiate when it comes to liabilities and obligations thereunder.2
Estoppel.
Benefit or rule of estoppel. Entitlement of only that party who, while acting
on the representation of another person had changed its position to its
prejudice could claim benefit of rule of estoppel. Where, however, correct
factual position was within knowledge of the represented or would have come to
his knowledge, on making inquiry as he ought to have reasonably made, rule or
estoppel was not attracted.3
115.
Estoppel of tenant and of licensee of person in possession. No tenant of
immovable property, or person claiming through such tenant, shall, during the
continuance of the tenancy, be permitted to deny that the landlord of such
tenant had, at the beginning of the tenancy, a title to such immovable
property; and no person who came upon any immovable property by the licence of
the person in possession thereof shall be permitted to deny that such person
had a title to such possession at the time when which license was given.
COMMENTARY
A
person entering premises as tenant cannot be permitted to deny that status as
estoppel under Art. 115 would operate and principle “once a tenant always a
tenant” would apply.4
Once
a tenant always a tenant. Tenant having been inducted as a tenant cannot claim
adverse to what was acquired by him in a lawful manner. Tenant’s claim that he
had acquired title through sale having not been established, no period of
limitation would stand against owners to seek declaration of title against such
person.5
Tenancy
of land once entered upon would continue until determined in accordance with
requirement of law.6
116.
Estoppel of acceptor of bill of exchange, bailee or licensee. No acceptor of a
bill of exchange shall be permitted to deny that the drawer had authority to
draw such bill or to endorse it; nor shall any bailee or licensee be permitted
to deny that his bailer or licensor had, at the time then the bailment or
license commenced, authority to make such bailment or grant such license.
Explanation
1. The acceptor of a bill of exchange may deny that the bill was really drawn
by the person by whom it purports to have been drawn.
Explanation 2. If a bailee delivers the goods bailed to a person other than the bailer, he may prove that such person had a right to them as against the bailor.
Explanation 2. If a bailee delivers the goods bailed to a person other than the bailer, he may prove that such person had a right to them as against the bailor.
PART III
PRODUCTION AND EFFECT OF EVIDENCE
CHAPTER IX
OF THE BURDEN OF PROOF
PRODUCTION AND EFFECT OF EVIDENCE
CHAPTER IX
OF THE BURDEN OF PROOF
117.
Burden of proof. (1) Whoever desires any Court to give judgment as to any legal
right or liability dependent on the existence of facts which he asserts, must
prove that those facts exist.
(2)
When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.
Illustrations
(a)
A desires a Court to give judgment that B shall be punished for a crime which A
says B has committed.
A
must prove that B has committed the crime.
(b)
A desires a Court to give judgment that he is entitled to certain land in the
possession of B by reason of facts which he asserts, and which B denies be
true.
A
must prove the existence of those facts.
COMMENTARY
Burden
of proof. Transfer of property through mutation. Burden of proof in case of
transfer of property through mutation is on vendee.8
118.
On whom burden of proof lies. The burden of proof in a suit or proceeding lies
on that person who would fail if no evidence at all were given on either side.
Illustrations
Illustrations
(a)
A sues B for land of which B is in possession, and which, as A asserts, was
left to A by the will of C, B’s father.
If no evidence were given on either side. B would be entitled to retain his possession.
If no evidence were given on either side. B would be entitled to retain his possession.
Therefore
the burden of proof is on A.
(b)
A sues B for money due on a bond.
The
execution of the bond is admitted, but B say that it was obtained by fraud,
which A denies.
If
no evidence were given on either side, A would succeed as the bond is not
disputed and the fraud is not proved.
Therefore
the burden of proof is on B.
COMMENTARY
Tort.
Damages. Publication of article in the magazine owned and edited by defendant
relating to murder case of ex-Prime Minister. Plaintiff’s conduct in said
murder case as counsel was ridiculed and his reputation as a lawyer was
injured. Defendant claiming truth of allegations. Initial onus of proving that
contents of said article were true and publication was not made with mala fides
but by intelligent zeal in public interest, was to be discharged by defendant,
who failed in doing so. Anything published against a person rendering him
ridiculous and, contemptible was nothing but defamation. Defendant was, thus,
liable to pay damages to plaintiff for publishing article in question, against
him.1
119.
Burden of proof as to particular fact. The burden of proof as to any particular
fact lies on that person who wishes the Court to believe in its existence,
unless it is provided by any law that the proof of that fact shall lie on any
particular person.
Illustrations
(a)
A prosecutes B for theft, and wishes the Court to believe that B admitted the
theft, to A, A must prove the admission.
(b)
B wishes the Court to believe that, at the time in question, he was elsewhere.
He must prove it.
120.
Burden of proving fact to be proved to make evidence admissible. The burden of
proving any fact necessary to be proved in order to enable any person to give
evidence of any other fact is on the person who wishes to give such evidence.
Illustrations
(a)
A wishes to prove a dying declaration by B. A must prove B’s death.
(b)
A wishes to prove, by secondary evidence, the contents of a lost document.
A
must prove that the document has been lost.
121.
Burden of proving that case of accused comes within exceptions. When a person
is accused of any offence the burden of proving the existence of circumstances
bringing the case within any of the General Exceptions in the Pakistan Penal
Code (Act XLV of 1860), or within any special exception of proviso contained in
any other part of the same Code, or in any law defining the offence, is upon
hi, and the Court shall presume the absence of such circumstances.
Illustrations
(a)
A accused of murder, alleges that by reason of unsoundness of mind, he did not
know the nature of the act.
The
burden of proof is on A.
(b)
A, accused of murder, alleged that, by grave and sudden provocation, he was
deprived of the power of self-control.
The
burden of proof is on A.
(c)
Section 325 of the Pakistan Penal Code (Act XLV of 1860), provides that
whoever, except in the case provided for by section 335, voluntarily causes
grievous hurt, shall be subject to certain punishments.
A
is charged with voluntarily causing grievous hurt under section 325.
The
burden of proving the circumstances bringing the case under section 335 lies on
A.
122.
Burden of proving fact especially within knowledge. When any fact is especially
within the knowledge of any person, the burden to proving that fact is upon
him.
Illustrations
(a)
When a person does an act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that
intention is upon him.
(b)
A is charged with traveling on a railway without a ticket. The burden of
proving that he had a ticket is on him.
123.
Burden of proving death of person known to have been alive within thirty years.
Subject to Article 124, when the question is whether a man is alive or dead,
and it is shown that he was alive within thirty years, the burden of proving
that he is dead is on the person who affirms it.
124.
Burden of proving that person is alive who has not been heard of for seven
years. When the question is whether a man is alive or dead, and it is proved
that he has not been heard of for seven years by those who would naturally have
heard of him if had been alive, the burden of proving that he is alive is
shifted to the person who affirms it.
125.
Burden of proof as to relationship in the cases of partners, landlord and
tenant, principal and agent. When the question is whether persons are partners,
landlord and tenant, or principal and agent, and it has been shown that they
have been acting as such, the burden of proving that they do not stand, or have
ceased to stand, to each other in those relationships respectively, is on the
person who affirms it.
126.
Burden of proof as to ownership. When the question is whether any person is
owner of anything of which he is shown to be in possession, the burden of
proving that he is not the owner is on the person who affirms that he is not
the owner.
127.
Proof good faith in transactions where one party is in relation of active
confidence. When there is a question as to the good faith of a transaction
between parties, one of whom stands to the other in a position of active
confidence, the burden of proving the good faith of the transaction is on the
party who is in a position of active confidence.
Illustrations
Illustrations
(a)
The good faith of a sale by a client to an advocate is in question in a suit
brought by the client. The burden of proving the good faith of the transaction
is on the advocate.
(b)
The good faith of a sale by a son just come of age to a father is in question
in a suit brought by the son. The burden of proving the good faith of the
transaction is on the father.
128.
Birth during marriage conclusive proof of legitimacy. (1) The fact that any
person was born during the continuance of a valid marriage between his mother
and any man and not earlier, that the expiration of six lunar months from the
date of the marriage or within two years after its dissolution, the mother
remaining unmarried, shall be conclusive proof that he is the legitimate child
of that man, unless--
(a)
the husband had refused, or refuses, to own the child; or
(b)
the child was born after the expiration of six lunar months from the date or
which the woman had accepted that the period of iddat had come to an end.
(2)
Nothing contained in clause (1) shall apply to a non-Muslim if it is
inconsistent with his faith.
129.
Court may presume existence of certain facts. The Court may presume the
existence of any fact which it thinks likely to have happened, regard being had
to the common course to natural events, human conduct and public and private
business, in their relation to the facts of the particular case.
Illustrations
The
Court may presume—
(a)
that a man who is in possession of stolen good soon after the theft is either
the thief or has received the goods knowing them to be stolen, unless he can
account for his possession;
(b)
that an accomplice is unworthy of credit, unless he is corroborated in material
particulars;
(c)
that a bill of exchange, accepted or endorsed, was accepted or endorsed for
good consideration;
(d)
that a thing or state of things which has been shown to be in existence within
a period shorter than that within which such things or states of thins usually
cease to exist, is still in existence;
(e)
that judicial and official acts have been regularly performed;
(f)
that the common course of business has been followed in particular cases;
(g)
that evidence which could be and is not produced would, if produced, be
unfavourable to the person who withholds it;
(h)
that, if a man refuses to answer a question which he is not compelled to answer
by law, the answer, if given, would be unfavourable to him;
(i)
that when a document creating an obligation is in the hands of the obliger, the
obligation has been discharged.
But
the Court shall also have regard to such facts as the following, in considering
whether such maxims do or do not apply to the particular case before it;
as
to illustration (a). A shopkeeper has in his till a marked rupee soon after it
was stolen, and cannot account for its possession specifically, but is
continually receiving rupees in the course of his business;
as
to illustration (b). A, person of the highest character, is tried for causing a
man’s death by an act of negligence in arranging certain machinery, B, a person
of equally good character, who also took part in the arrangement, describes
precisely what was done, and admits and explains the common carelessness of A
and himself;
as
to illustration (b). A crime is committed by several persons. A, B and C, three
of the criminals, are captured on the shop and kept apart from each other. Each
gives an account of the crime implicating D, and the accounts corroborate each
other in such a manner as to render previous concert highly improbable;
as
to illustration (c). A, the drawer of a bill of exchange, was a man of
business, B, the acceptor, was a young and ignorant person, completely under
A’s influence;
as
to illustration (d). It is proved that a river ran in a certain course five
years ago, but it is known that there have been floods since that time which
might change its course;
as
to illustration (e). A judicial act, the regularity of which is in question,
was performed under exceptional circumstances;
as
to illustration (f). The question is, whether a letter was received. It is
shown to have been posted, but the usual course of the post was interrupted by
disturbances;
as
to illustration (g). A man refuses to produce a document which would bear on a
contract of small importance on which he is used, but which might also injure
the feelings and reputation of his family;
as
to illustration (h). A man refuses to answer a question which he is not
compelled by law to answer, but the answer to it might cause loss to him in
matters unconnected with the matter in relation to which it is asked;
as
to illustration (i). A bond is in possession of the obligor, but the circumstances
of the case are such that he may have stolen it.
COMMENTARY
Summons
sent in properly addressed and prepaid envelopes. Presumption. Presumption
under Art. 129 (e), Qanun-e-Shahadat Order, 1984 and S. 27, General Clauses
Act, 1897, would be that summons in question, were duly served on defendants by
registered post. Such presumption although was rebuttable but nothing was
brought on record to rebut such presumption.2
Official
acts are presumed to have been performed with regularity.3
Presumption.
Sale of land. Question that the seller of land
was a person of unsound mind. Trial Court and Appellate Court had noted that
although sale-deed was presented for registration on 2nd January, 1964 but it was registered
only after 18th July, 1964
when it was represented. Trial Court had also taken into account interpolation
made in the endorsement which was evident on the face of the document. Written
statement showed that medical certificate was produced by appellants, before
the Sub-Registrar at the time of registration of sale-deed but the said
certificate had not been produced but was withheld by appellants. Courts below,
held, were justified to draw presumption against the appellants.4
Registered
document. Presumption. Presumption of truth is attached to registered
document.5
Evidence
withheld by a party. Held: Inference can be drawn that such evidence should
have adversely affected party with-holding evidence.6
CHAPTER X
OF THE EXAMINATION OF WITNESSES
OF THE EXAMINATION OF WITNESSES
130.
Order of production and examination of witnesses. The order in which witnesses
are produced and examined shall be regulated by the law and practice for the
time being relating to civil and criminal procedure respectively, and, in the
absence of any such law, by the discretion of the Court.
131.
Judge to decide as to admissibility of evidence. (1) When either party proposes
to give evidence of any fact, the Judge may ask the party proposing to give the
evidence in what manner the alleged fact, if proved, would be relevant, and the
Judge shall admit the evidence if he thinks that the fact, if proved, would be
relevant and not otherwise.
(2)
If the fact proposed to be proved is one of which evidence is admissible only
upon proof of some other fact, such last-mentioned fact must be proved before
evidence is given of the fact first-mentioned, unless the party undertakes to
give proof of such fact, and the Court is satisfied with such undertaking.
(3)
If the relevancy of the one alleged fact depends upon another alleged fact
being first proved, the Judge may, in his discretion, either permit evidence of
the first fact to be given before the second fact is proved, or require
evidence to be given of the second fact before evidence is given of the first
fact.
Illustrations
(a)
It is proposed to prove a statement about a relevant fact by a person alleged
to be dead, which statement is relevant under Article 46.
The
fact that the person is dead must be proved by the person proposing to prove
the statement, before evidence is given of the statement.
(b)
It is proposed to prove, by a copy, the contents of a document said to be lost.
The
fact that the original is lost must be proved by the person proposing to
produce the copy, before the copy is produced.
(c)
A is accused of receiving stolen property knowing it to have been stolen.
It
is proposed to prove that he denied the possession of the property.
The
relevancy of the denial depends on the identity of the property.
The
Court may in its discretion, either require the property to be identified
before the denial of the possession is proved or permit the denial of
possession to be proved before the property is identified.
(d)
It is proposed to prove a fact (A) which is said to have been the cause or
effect of a fact-in-issue. There are several intermediate facts (B, C and D)
which must be shown to exist before the fact (A) can be regarded as the cause
or effect of the fact-in-issue. The Court may either permit A to be proved
before B, C or D is proved, or may require proof of B, C and D before
permitting proof of A.
132.
Examination-in-chief, etc. (1) The examination of a witness by the party who
calls him shall be called his examination-in-chief.
(2)
The examination of a witness by the adverse party shall be called his
cross-examination.
(3)
The examination of a witness, subsequent to the cross-examination by the party
who called him, shall be called his re-examination.
133.
Order of examinations. (1) Witnesses shall be first examined-in-chief, then (if
the adverse party so desires) cross-examined, then (if the party calling him so
desires) re-examined.
(2)
The examination and cross-examination must relate to relevant facts but the
cross-examination need not be confined to the facts to which the witness
testified on his examination-in-chief.
(3)
The re-examination shall be directed to the explanation of matters referred to
in cross-examination; and if new matter is, by permission of the Court,
introduced in re-examination, the adverse party may further cross-examine that
matter.
COMMENTARY
Witness
can be re-examined with permission of Court in case any ambiguity crops up
during cross-examination which needs clarification or elucidation.6a
Order
of examination as prescribed in Arts. 133, 150 is meant to elicit true facts
from the witness, the party at whose instance the witness has been produced
would of course examine and as such put forth its case. Thereafter, to test the
credibility or veracity of the witness, the adverse party has been granted the
right of cross-examining him. If some ambiguity or confusion has arisen during
cross-examination, the party can re-examine the witness and if some new fact
has been introduced then the adverse party can cross-examine him further.6b
The
examination-in-chief, cross-examination and re-examination all make one
statement. The whole exercise is undertaken to extort truth so that complete
justice may be dispensed. During course of statement, if a witness produced by
prosecution deviates from true facts and the same are being suppressed in order
to extend concession or due to some other ulterior motive, the Court can permit
the party to cross-examine his own witness.6c
Re-examination
of a witness. It is possible that during the course of re-examination a witness
while clarifying or elucidating a fact may suppress the truth or state something
which appears to be palpably false or self-contradictory or for some allied
reason, then permission can be sought from Court to cross-examine that witness.
In such case Court may grant permission to cross-examine the witness in the
interest of justice.7
134.
Cross-examination of person called to produce a document. A person summoned to
produce a document does not become a witness by the mere fact that he produces
it and cannot be cross-examined unless and until he is called as a witness.
135.
Witnesses to character. Witnesses to character may be cross-examined and
re-examined.
136.
Leading questions. Any question suggesting to answer which the person putting
it wishes or expects to receive is called a leading question.
137.
When leading questions must not be asked. (1) Leading questions must not, if
objected to by the adverse party, be asked in an examination-in-chief, or in a
re-examination, except with the permission of the Court.
(2)
The Court shall permit leading questions as to matters which are introductory
or undisputed; or which have, in its opinion been already sufficiently proved.
138.
When leading questions may be asked. Leading questions may be asked in
cross-examination.
139.
Evidence as to matters in writing. Any witness may be asked, whilst under
examination, whether any contract, grant or other disposition of property, as
to which he is giving evidence, was not contained in a document, and if he says
that it was, or if he is about to make any statement as to the contents of any
documents, which, in the opinion of the Court, ought to be produced, the
adverse party may object to such evidence being given until such document is
produced, or until facts have been proved which entitle that party who called
the witness to give secondary evidence of it.
Explanation.
A witness may give oral evidence of statement made by other persons about the
contents of documents if such statements are in themselves relevant facts.
Illustration
The
question is, whether A assaulted B.
C
deposes that he heard A say to D “B wrote a letter accusing me of theft. And I
will be revenged on him”. This statement is relevant, as showing A’s motive for
the assault, and evidence may be given of it, though no other evidence is given
about the letter.
140.
Cross-examination as to previous statements in writing. A witness may be
cross-examined as to previous statements made by him in writing or reduced into
writing, and relevant to matters in question, without such writing being shown
to him, or being proved; but, if it is intended to contradict him by the
writing, his attention must, before the writing can be proved, be called to
those parts of it which are to be used for the purpose of contradicting him.
COMMENTARY
State
counsel unauthorized to cross-examine his own witness with leave of Court if
witness does not support prosecution during trial. If, however, permission
under Art. 140 is not sought and witness was not got declared hostile, Court is
bound to give credit to statement of witness and give whatever benefit from
evidence of such witness goes to accused. Benefit of such evidence, however,
would not be extended to all accused facing trial, but would be extended only
to accused in whose favour such evidence has been given. For this reason alone,
prosecution case against other accused persons shall not be disbelieved.
141.
Questions lawful in cross-examination. When a witness cross-examined, he may,
in addition to the questions hereinbefore referred to, be asked any questions
which tend--
(1)
to test his veracity,
(2)
to discover who he is and what is his position in life, or
(3)
to shake his credit, by injuring his character, although the answer to such
question might tend directly or indirectly to criminate him or might expose or
tend directly or indirectly to expose him to a penalty or forfeiture.
142.
When witness to be compelled to answer. If any such question relates to a
matter relevant to the suit or proceeding, the provisions of Article 15 shall
apply thereto.
143.
Court to decide when question shall be asked and when witness compelled to
answer. If any such question relates to a matter not relevant to the suit or
proceeding, except insofar as it affects the credit of the witness by injuring
his character, the Court shall decide whether or not the witness shall be
compelled to answer it, and may, if it thinks fit, warn the witness that he is
not obliged to answer it. In exercising its discretion, the Court shall have
regard to the following considerations:--
(1)
such questions are proper if they are of such a nature that the truth of the
imputation conveyed by them would seriously affect the opinion of the Court as
to the credibility of the witness on the matter to which he testified;
(2)
such questions are improper if the imputation which they convey relates to
matters so remote in time, or of such a character, that the truth of the
imputation would not affect, or would affect in slight degree, the opinion of
the Court as to the credibility of the witness on the matter to which he
testified;
(3)
such questions are improper if there is a great disproportion between the
importance of the imputation made against the witness’s character and the
importance of his evidence;
(4)
the Court may, if it sees fit, draw, from the witness’s refusal to answer, the
inference that the answer if given would be unfavourable.
144.
Question not to be asked without reasonable grounds. No such question as is
referred to in Article 143 ought to be asked, unless the person asking it has
reasonable grounds for thinking that the imputation which it conveys is well
founded.
Illustrations
(a)
An advocate is instructed by an attorney that an important witness is a dakait.
This is a reasonable ground for asking the witness whether he is a dakait.
(b)
An advocate is informed by a person in Court that an important witness is a
dakait. The informant, on being questioned by the advocate, given satisfactory
reasons for his statement. This is reasonable ground for asking the witness
whether he is a dakait.
(c)
A witness, of whom nothing whatever is known, is asked at random whether he is
a dakait. There are here no reasonable grounds for the question.
(d)
A witness, of whom nothing whatever is known, being questioned as to his mode
of life and means of living, gives unsatisfactory answers. This may be a
reasonable ground for asking him if he is a dakait.
145.
Procedure of Court in case of question being asked without reasonable grounds.
If the Court is of opinion that any such question was asked without reasonable
grounds, it may, if it was asked by any advocate, report the circumstances of
the case to the High Court or other authority to which such advocate is subject
in the exercise of his profession.
146.
Indecent and scandalous question. The Court may forbid any question or
inquiries which it regards as indecent or scandalous, although such questions
or inquiries may have some bearing on the questions, before the Court, unless
they relate to facts in issue, or to matters necessary to be known in order to
determine whether on not the facts in issue existed.
147.
Procedure of Court in cases of defamation, libel and slanders. When a person is
prosecuted or sued for making or publishing an imputation of a defamatory,
libelous or slanderous nature, the Court shall, not, before it has recorded its
findings on the issues whether such person did make or publish such imputation,
and whether such imputation is true, permit any question to be put to any
witness for the purpose of injuring the character of the person in respect of
whom such imputation has, or is alleged to have, been made, or any other
person, whether dead or alive, in whom he is interested, except insofar as any
such question may the necessary for the purpose of determining the truth of the
imputations alleged to have been made or published.
148.
Questions intended to insult or annoy. The Court shall forbid any question
which appears to it to be intended to insult or annoy; or which, though proper
in itself, appears to the Court needlessly offensive in form.
149.
Exclusion of evidence to contradict answers to questions testing veracity. When
a witness has been asked and has answered any question which is relevant to the
inquiry only insofar as it tends to shake his credit by injuring his character,
no evidence shall be given to contradict him; but, if he answers falsely, he
may afterwards be charged with giving false evidence.
Exception
1. If a witness is asked whether he has been previously convicted of nay crime
denies it, evidence may be given of his previous conviction.
Exception
2. If a witness is asked any question tending to impeach his impartiality and
answers it by denying the facts suggested, he may be contradicted.
Illustrations
(a)
A claim against an underwriter is resisted on the ground of fraud.
The
claimant is asked whether, in a former transaction, he had not made a
fraudulent claim. He denies it.
Evidence
is offered to show that he did make such a claim.
The
evidence is inadmissible.
(b)
A witness is asked whether he was not dismissed from a situation for
dishonesty.
He
denies it.
Evidence
is offered to show that he was dismissed for dishonesty.
The
evidence is not admissible.
(c)
A affirms that on a certain day he saw B at Lahore .
A
is asked whether he himself was not on that day at Faisalabad .
He denies it.
Evidence
is offered to show that A was on that day at Faisalabad .
The
evidence is admissible, not as contradicting A on a fact which effects his
credit, but as contradicting the alleged fact that B was seen on the day in
question in Lahore .
In
each of these cases the witness might, if his denial was false, be charged with
giving false evidence.
(d)
A is asked whether his family has not had a blood-feud with the family of B
against whom he gives evidence.
He
denies it. He may be contradicted on the ground that the question tends to
impeach his impartiality.
150.
Question by party to his own witness. The Court may, in its discretion, permit
the person who calls a witness to put any questions to him which might be put
in cross-examination by the adverse party.
151.
Impeaching credit of witness. The credit of a witness may be impeached in the
following ways by the adverse party, or, with the consent of the Court, by the
party who calls him:
(1)
by the evidence of persons who testify that they, from their knowledge of the
witness, believe him to be unworthy of credit;
(2)
by proof that the witness has been bribed, or has accepted the offer of a
bribe, or has received any other corrupt inducement to give his evidence;
(3)
by proof of former statements inconsistent with any part of his evidence which
is liable to be contradicted;
(4)
when a man is prosecuted for rape or an attempt to ravish, it may be shown that
the prosecutrix was of generally immoral character.
Explanation.
A witness declaring another witness to be unworthy of credit may not, upon his
examination-in-chief, give reasons for his belief, but he may be asked his
reasons in cross-examination, and the answers which he gives cannot be
contradicted, though, if they are false, he may afterwards be charged with
giving false evidence.
Illustrations
(a)
A sues B for the price of goods sold and delivered to B, C says that A
delivered the goods to B.
Evidence
is offered to show that, on a previous occasion, he said that he had not
delivered the goods to B.
The
evidence is admissible.
(b)
A is indicated for the murder of B.
C
says that B, when dying, declared that A had given B the wound of which he
died.
Evidence
is offered to show that, on a previous occasion, C said that the wound was not
given by A or in his presence.
The
evidence is admissible.
152.
Questions tending to corroborate evidence of relevant fact admissible. When a
witness whom it is intended to corroborate gives evidence of any relevant fact,
he may be questioned as to any other circumstances which he observed at or near
to the time or place at which such relevant fact occurred if the Court is of
opinion that such circumstances, if proved, would corroborate the testimony of
the witness as to the relevant fact which he testifies.
Illustration
A,
an accomplice, gives an account of robbery in which he took part. He describes
various incidents unconnected with the robbery which occurred on his way to and
from the place where it was committed.
Independent
evidence of these facts may be given in order to corroborate his evidence as to
the robbery itself.
153.
Former statements of witness may be proved to corroborate later testimony as to
same fact. In order to corroborate the testimony of a witness, any former
statement made by such witness relating to the same fact at or about the time
when the fact took place, or before any authority legally competent to
investigate the fact, may be proved.
154.
What matters may be proved in connection with proved statement relevant under
Article 46 or 47. Whenever any statement, relevant under Article 46 or 47, is
proved, all matters may be proved either in order to contradict or corroborate
it, or in order to impeach or confirm the credit of the person by whom it was
made, which might have been proved if that person had been called as a witness
and had denied upon cross-examination the truth of the matter suggested.
155.
Refreshing memory. (1) A witness may, while under examination of afresh his
memory by referring to any writing made by himself at the time of the
transaction concerning which he is questioned, or so soon afterwards that the
Court considers it likely that the transaction was at that time fresh in his
memory.
(2)
The witness may also refer to any such writing made by any other person, and
read by the witness within the time aforesaid, if when he read it he knew it to
be correct.
(3)
Whenever a witness may refresh memory by reference to any document, he may,
with the permission of the Court, refer to a copy of such document:---
Provided
that Court be satisfied that there is sufficient reason for the non-production
of the original.
(4)
An expert may refresh his memory by reference to professional treatise.
156.
Testimony to facts stated in document mentioned in Article 155. A witness may
also testify to fact mentioned in any such document as is mentioned in Article
155, although he has no specific recollection of the facts themselves, if he is
sure that the facts were correctly recorded in the document.
Illustration
A
book-keeper may testify to facts recorded by him in books regularly kept in the
course of business, if he knows that the books were correctly kept, although he
has forgotten the particular transactions entered.
157.
Right of adverse party as to writing used to refresh memory.
--- Any writing referred to under the provisions of the two last preceding
Articles must be produced and shown to the adverse party if he requires it such
party may, if he pleases, cross-examine the witness thereupon.
158.
Production of document. --- (1) A witness summoned to
produce a document shall, if it is in his possession or power, bring it to
Court, notwithstanding any objection which there may be to its production or to
its admissibility. The validity of any objection shall be decided on by the
Court.
(2)
The Court, if it sees fit, may inspect the document, unless it refers to
matters of State, or take other evidence to enable it to determine on its
admissibility.
(3)
If for such a purpose it is necessary to cause any document to be translated,
the Court may, if it thinks fit, direct the translator to keep the contents
secret, unless the document is to be given in evidence; and, if the translator
disobeys such direction, he shall be held to have committed an offence under
Section 166 of the Pakistan Penal Code (Act XLV of 1860).
159.
Giving, as evidence, of document called for and produced on notice.
--- When a party calls for a document which he has given the other party notice
to produce, and such document is produced and inspected by the partly calling
for its production, he is bound to give it as evidence if the party producing
it requires him to do so.
160.
Using, as evidence, of document production of which was refused on notice. ---When a party refuses to produce a document
which he has had notice to produce, he cannot afterwards use the document as
evidence without the consent of the other party or the order of the Court.
Illustration
A
sues B on an agreement and gives B a notice to produce it.
At
the trial A calls for the document and B refuses to produce it. A gives
secondary evidence of its contents. B seeks to produce the document itself to
contradict the secondary evidence given by A, or in order to show that the
agreement is not stamped. He cannot do so.
161.
Judge’s power to put question or order production.
--- The Judge may, in order to discover or to obtain proper proof of relevant
facts, ask any question he places, in any form, at any time, of any witness, or
of the parties about any fact relevant or irrelevant; and may order the production
of any document or things and neither the parties nor their agents shall be
entitled to make any objection to any such question or order, nor, without the
leave of the Court, to cross-examine any witness upon any answer given in reply
to any such question:
Provided
that the judgment must be based upon facts declared by this Order to be
relevant, and duly proved:---
Provided
also that this Article shall not authorize any Judge to compel any witness to
answer any question or to produce any document which such witness would be
entitled to refuse to answer or produce under Articles 4 to 14, both inclusive,
if the question was asked or the document was called for by the adverse party:
nor shall the Judge ask any question which it would be improper for any other
person to ask under Article 143 or 144; nor shall he dispense with primary
evidence of any document, except in the cases herein before excepted.
CHAPTER XI
OF IMPROPER ADMISSION AND REJECTION OF
EVIDENCE
OF IMPROPER ADMISSION AND REJECTION OF
EVIDENCE
162.
No new trial for improper admission or rejection of evidence.
--- The improper admission or rejection of evidence shall not be ground of
itself for a new trial or reversal of any decision in any case, if it shall
appear to the Court before which such objection is raised that, independent of
the evidence objected to and admitted, there was sufficient evidence to justify
the decision, or that, if the rejected evidence had been received, it ought not
to have varied the decision.
CHAPTER XII
DECISION OF CASE ON THE BASIS OF OATH
DECISION OF CASE ON THE BASIS OF OATH
163.
Acceptance or denial of claim on oath. --- (1) When the plaintiff takes
oath in support of his claim, the court shall, on the application of the
plaintiff, call upon the defendant to deny the claim on oath.
(2)
The Court may pass such orders as to costs and other matters as it may deem
fit.
(3)
Nothing in this Article applies to laws relating to the enforcement of Hudood
or other criminal cases.
COMMENTARY
Special
oath by one of the plaintiffs. Effect. During proceedings of second appeal, one
of plaintiff/appellant filed application wherein he stated that if the
specified defendant, swore on Holy Quran and stated that consideration for the
sale had been paid to the appellant, he would not object to the decree passed
in favour of defendants being maintained. Defendants accepted the challenge and
took the special oath, whereupon High Court dismissed the second appeal.
Petitioner’s plea in petition for leave to appeal, was that the plaintiff
making the offer of special oath had been authorized to make it only on behalf
of favour of sisters and himself, but he had no authority to make any statement
in Court or compromise the suit, appeal, etc. On behalf of remaining three
brothers viz. Petitioners herein, and hence special oath taken by the defendant
did not bind them. Supreme Court, however, found that the Advocate in second
appeal was jointly engaged by all the plaintiffs including the present
petitioners and that such Advocate was present in Court throughout the
proceedings; special oath was taken before him and order of court was also
passed in his presence. No plea was raised before High Court to the effect that
the appeal of present petitioners could not be dismissed in pursuance of the
statement on oath by the defendant, in pursuance of the offer of their brother
as the latter did not represent them. Supreme Court declined to exercise its
discretionary jurisdiction to grant leave to appeal petitioners on the basis of
plea raised by them, before the Supreme Court.8
Provisions
as to oath apply to civil cases. They do not apply to criminal or hudood cases.
Working of Trial Court applying Art. 163 to criminal cases cannot be approved.9
Provisions
of special oath under Art. 163 do not apply to criminal proceedings.10
Denial
of claim by defendant on Oath. Effect. Parties to suit taking Oath, one
affirming the claim and the other denying the same. Trial Court dismissed suit,
also the Appellate Court, High Court in revision, remanding case to Trial Court
for decision on basis of evidence which stood already recorded. Validity. Provision
of Art. 163, Qanun-e-Shahadat, 1984 does not lay down what would be the
consequences if defendant does or does not deny plaintiff’s claim on Oath.
Order of remand passed by High Court, thus, seemed to be proper, warranting no
interference. Leave to appeal was refused in circumstances.11
Applicability
of Art. 163, Qanun-e-Shahadat, 1984 to criminal cases. Procedure of swearing on
the Holy Qur’an (oath proceedings) is not applicable in criminal cases.7
CHAPTER XIII
MISCELLANEOUS
MISCELLANEOUS
164.
Production of evidence that has become available because of modern devices,
etc. --- In such cases as the Court may consider appropriate,
the Court may allow to be produced any evidence that may have become available
because of modern devices or techniques.
165.
Order to override other laws. --- The provisions of this Order
shall have effect notwithstanding anything contained in any other law for the
time being in force.
166.
Repeal. --- [The Evidence Act, 1872 (I of 1872) is hereby
repealed.]
No comments:
Post a Comment