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

Books Recommended:

1.      The Qanun-e-Shahadat by Professor Dr. Chaudhary Muhammad Hanif.

2.      The Qanun-e-Shahadat by Muhammad Iqbal.

3.      Qanun-e-Shahadat Order by Muhammad Shahid Mughal and Intisar Ali Chauhan.

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

There are two types of laws, i.e., substantive and procedural. Substantive law is related with the person and property while procedural lawdeals with the procedure as to how substantive law is proceeded in a court of law.

If a person does not fulfill legal obligation, how he can get remedy? How his rights are enforced? For example, a contract is formed between two persons, and one of them commits breach of contract. It is fact and alleged in court that it was not performed. He pleads a fact, which is breach. What is the procedure by which breach is proved? How he establishes that fact stands exist? It is only evidence, which proves the existence of fact.

Court itself takes notice of question of law. Parties are not required to resolve the question of law but only question of fact. Parties have to just prove the existence of fact.

Before the present Qanun-e-Shahadat Order there was the Law of Evidence, 1872. It was rearranged during the Islamization process in the Zia regime. It is more or less same as earlier. Differences are as follows:

Under old law provisions of the law were called sections while in new one they are called Article.

Provisions of law have been reshuffled.

Title of the law has been changed from the Law of Evidence, 1879 to Qanun-e-Shahadat Order, 1984.

Few Islamic provisions have been introduced, e.g., number of witnesses have been increased to four for Hudood crimes.

Financial provisions have been brought Islamic.

Qualification of witnesses and law of accomplice has been changed.

If the new provisions do not fulfill the requirement of the case then old provisions remain applicable. Finally it is more or less the same law, same ruling, same judgement, same decisions, and same cases.

What is function of evidence law? To whom, as witness is to be produced in court to testify truth? Witnesses are produced from both sides to prove or disprove the facts in issues. Whether the produced witness is competent to give evidence in court of law and what are the qualifications of competent witness are also questions of law of evidence. Witnesses also have some rights and duties as well. Generally all are the competent witnesses provided they are not debarred to give evidence except in certain cases. They have certain privileges and no question can be asked from them against which they are protected under law. If any question is asked which falls within their privilege they may refuse to answer the question. Rights are called technically privileges. Generally witnesses are free to answer or refuse. During the cross-examination they bear legal duty to answer question asked.

Whether evidence once given on one court can be adduced (cite, offer, present) in all courts? No, it is accepted only where court or person administers it under oath. Arbitrator does not take evidence under oath so evidence taken by him is not admissible in courts.

A, advances to B Rs. 5,000/- repayable within one month. B commits default in repayment. A files a suit in court against B for the recovery of amount of Rs. 5,000/-. B either may admit the receipt of amount and not repaid or may allege repaid within due time. A alleges advance of Rs. 5,000/- and B alleges its repayment. Two facts in issue arise. Advancement of Rs. 5,000/- becomes issue in fact on the part of A while repayment of Rs. 5,000/- within due time becomes fact in issue on the part of B. Both have to prove their claims by producing evidence.

If B claims receipt of advance amounting to Rs. 5,000/- which is still repayable then no fact in issue will arise and case with be adjudged in favour of A. fact in issue arises when one party denies the fact in issue which plaintiff puts. Both plaintiff and defendant put their facts in their pleadings but court frames the facts in issue. Whenever defendant denies the fact which plaintiff alleges, then fact in issue arises.

There may be more facts in issue than one. Relevant evidence is given to prove or disprove the facts in issue. Denial of B can be proved through the Cheque issued to him while the receipt of Money Order can prove repayment.

Kinds of evidences: There are certain kinds of evidence, e.g., oral and documentary, primary and secondary etc. Primary evidence contains original documents or postmortem reports. Secondary evidence contains copy or attested copy of the original document. Secondary evidence is allowed where primary evidence is not available. Documentary evidence excludes oral evidence being authentic and preferred. Following are kinds of evidences:

1.      Oral: Statements made by witnesses in Court.

2.      Documentary: It includes public and private documents, and statements of relevant facts made by persons in writing.

3.      Conclusive: Evidence of a fact which the Court must take as full proof of it, and which excludes all evidence to disprove it.

4.      Direct: It is evidence of fact actually in issue; evidence of a fact actually perceived by a witness with his own senses.

5.      Circumstantial: It is evidence of a fact not actually in issue, but legally relevant to a fact in issue.

6.      Real: It is a kind of evidence supplied by material s produced for the inspection of the Court.

7.      Extrinsic: It is oral evidence given in connection with written documents.

8.      Hearsay: What someone else has been heard to say, What the solider said, as contrasted with the direct evidence of a witness himself, oral or written statements made by persons not called as witnesses? Hearsay evidence is, in general, excluded, but the repetition or another persons statement is sometimes permissible, and there are express exceptions of the rule against hearsay.

In criminal proceedings that common law rules as to hearsay still obtain. In civil proceedings the common law rules are abrogated.

9.      Indirect: It is circumstantial or hearsay evidence.

10.  Original: It is evidence, which has an independent probative force of its own.

11.  Derivative: It is evidence, which derives its force from some other source.

12.  Parole: It is oral, extrinsic (unrelated) evidence.

13.  Prima facie: It is evidence of fact, which the Court must take as proof of such fact, unless disproved, by further evidence.

14.  Primary: Primary evidence of a document is the document itself, or duplicate original.

15.  Secondary: It is the evidence other than the best evidence, and which is rejected if primary evidence is available, e.g., oral evidence of the contents of a lost document such as a Will.

Theft: Where property is removed from the custody of its owner with unlawful intention, it is called theft. It has four ingredients such as:

1.      Dishonest intention: Where property is removed without unlawful intention and later on dishonest intention is formed, it not called theft but misappropriation. Dishonest intention must be there at the time of removal of property.

2.      Moveable or tangible property: Only moveable property is subject of theft. Where immovable property is removed such as fan which is removed from wall or ceiling or tree is removed from earth, it becomes moveable property thus its removal with dishonest intention becomes subject of theft.

3.      Removal of property: Mere dishonest intention is insufficient to constitute the offence of theft. Its removal must be there. Where dishonest intention exists but property is not removed, theft does not take place.

4.      From the possession of other: Moveable property, which is removed with dishonest intention, must have its owner. Where any person has abandoned his possession of any property, its removal shall not form the offence of theft. Where owner of bull abandons the ownership of bull, its slaughter shall not form the offence of theft. Ownership or physical possession of property is one of element of theft.

Misappropriation of property: Misappropriation of property is a result of state of mind, which is changed subsequently. All the elements of theft are found in misappropriation of property except the dishonest intention at the time of removal of property. To constitute misappropriation of property, its dishonest intention after the removal of property must be proved. It is breach of trust. Breach of trust does mean a person is entrusted but later on he changes his mind and keeps the property dishonestly for personal use is termed misappropriation.

Where a manager gives some amount to his clerk for disbursement to employees relying upon him creates a trust to his subordinate. When clerk changes his mind after taking possession of money for the keeping amount for his personal use without having any lawful authority, is breach of trust for which he was entrusted.

Where a worker takes bicycle relating to another worker mistakenly but subsequently he keeps such bicycle at home for his child and also takes his bicycle for his own use is also misappropriation of property.

Law of theft is not applicable on misappropriation of property on the fact that dishonest intention was not there when moveable property was removed from the possession relating to other.

Under the offence of theft owner of the property does not know whether property relating to him is removed while he gives possession of his property himself to other person where misappropriation of property may take place. Result of breach of trust form misappropriation of property.

Mere removal of moveable of property from the possession relating to other is insufficient to constitute either the offence of theft or misappropriation of property.

Judicial notice: Where something is not produced then court itself takes its notice. This notice is called Judicial Notice. This notice is taken where there is no need to prove something, e.g., Map of Pakistan, question of law, administration, division of cities or districts or provinces etc.

Where a person is refrained to deny the truth already admitted is called estoppel. Where a principal has not appointed agent but he ostensibly acts as agent before principal then principal cannot deny the truth of his agency.

A is shopkeeper and B is his friend and joins him in his shop. C comes to shop and A introduces B as owner of the shop. C deal with B. Adispute arises between shopkeeper and C. A cannot deny the truth being B as owner of the shop. Burden or onus of proof (PJQ iBI) lies on the shoulders who alleges (claims, ascertains). Burden or onus of proof shifts to him who fails to prove the facts in issue.

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

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

Application of this law: This Act is applicable to whole of Pakistan on all judicial proceedings. Where evidence is required this law applies. This law is applicable for such forums:

1.      Courts: Courts are subjects of the application of this law.

2.      Persons empowered: Person who is empowered by law for the judicial proceedings is subject of this law.

3.      Tribunals: Tribunals for the judicial proceedings record their evidences under this law.

4.      Quasi-judicial proceedings: It is also applicable in all quasi-judicial proceedings.

5.      Magistrates: They are also subject of this law and record evidence under this law.

6.      Martial Law Courts: They are also bound to record evidence under this law.

Non-application of this rule: This law does not apply on certain proceedings such as:

1.      Jury system: Where jury system of justice exists there is no application of this law of evidence.

2.      Arbitration: It is also not applicable in arbitration cases.

3.      Inquiries: If the inquiry is not judicial then it is not applicable.

Court: As far as evidence law is concerned court means any person, tribunal, or authority, which exercises powers, invested to her as per law of land.

Document: U/s 29 of Pakistan Penal Code, document is a material written or described on any substance and carries some meaning and can be produced as evidence in court. All written materials regardless written on cloth, paper, stone, leather, tree, bones etc. is document if it carries some meaning within the meaning of this section. It may be ABC or 123 or ?-@$/=, but it should must carry meaning. Bloodstains on cloth are also a document. Black board, affidavit, engraved name on tree, glass, plastic, iron, brick is document. Engraved engine number on motor cycle or pistol is document. Wound mark on body is also a document, but an expert should medically examine it and his report will termed as document.

Need of evidence: Court has to arrive on truth. Court does not know the actual and factual position of the facts in issue. How a court may arrive to truth? It is only evidence, which brings court to truth. Only evidence concludes such statement, which is given orally and admissible.

Role of police in judicial proceedings: Statement given before Police Officer, does not amount evidence admissible in court. It is just investigation and proceedings which court conduct is called enquiry. Police just collects evidences but does not record evidence.

Confession: Confession made before Police Officer is not admissible actually and particularly when names of other persons are mentioned. Police may investigate against them but this confession cannot be used against them as evidence. Confession is used only against him who makes it but not against others.

The test of the judicial authority is that officer empowered takes evidence on oath. Executive officer may also use quasi-judicial powers. Statement is not termed as evidence as it is not taken under the Qanun-e-Shahdat Order. Both Code of Civil Procedure and Code of Criminal Procedure are different but the evidence has same relevance.

There may be certain facts of issues in pleadings. Some of them may be admitted and rest may be denied. Need of evidence becomes necessary

where facts are denied. Plaintiff has to provide evidence to establish his claim in pleading. Stay does not need evidence but arguments.

Where wrong or crime is committed, e.g., dacoity, murder, theft, or alcohol consumption etc. there is need of evidence to prove or disprove the fact in issue. Some offences or wrongs are petty in nature thus liable of bail. Bail is granted at once. Where there is non bail-able offence and court thinks that accused shall run away, then court shall not grant bail.

Need of evidence: Evidence in both Code of Civil Procedure and Code of Criminal Procedure is required at the time of trial. It is not allowed at appellate level. For example, a case of murder is tried in Session Court and court gives death penalty to offender. Appellate court does not require evidence. Evidence provided at trial level rests sufficient. Accused goes in appeal in High Court and his lawyer establishes that a new piece of evidence has been discovered which if applied in trial court, accused must be acquitted. If there is probability of reversal or acquittal lies in evidence then Appellate Court decides the return back the case to trial court for retrial.

Fact: We know that all evidences are adduced before court of law either relating to fact in issue or relevant to fact. A person may be habitual of sleepwalking. He may inflict slap to other during sleepwalking. Trespassing is also an offence in the eyes of law. Trespasser may think that he is entering in his home but actually it is not his home. This is state of mind. Offender makes his mind to commit crime. Negligent person may also commit offence. Anything existence or non-existence of which can be perceived is fact. State of mind is also fact, which can be perceived and proved. Probable consequence of stoning is grievous hurt or injury however its knowledge constitutes fact.

In another example, A, kills to B. Prosecution has to prove murder of B. It requires evidence thus it is fact. Fact may either require its proof and disproof. When the evidence is adduced in court and court considers it is proved that is fact.

Presumption of fact: Some time court presumes whether certain thing or fact exists or not. It must be kept in mind that presumptions are always rebut-able. If party proves that fact does not exist, court shall conclude that fact does not exist.

Competency of witness: There are certain qualifications for the competency of the witness. Law imposes the following restriction on competent witness:

1.      Age limit: Law does not provide any age limit for the competency of witness but he should know and retain in his memory the facts.

2.      Understanding capability: Competent witness must understand what court of law wants to enquire. He must have capability to answer the questions of court.

3.      To whom court thinks competent: Satisfaction of the court is another essential element for the competency of witness. If court does not consider witness as competent he cannot appear as competent witness even witness is person of sound mind or generally considered competent.

4.      True Muslim: In certain cases only true Muslim is competent witness particularly in Hudood crimes. He must be person of those qualifications which Quran and Sunnah prescribe for a witness.

5.      Islamic rules: s

6.      All persons: s

7.      Tazkia: s

8.      Eyesight: s

9.      Hearing: s

10.  Perception: s

11.  Smelling: s

12.  Communication skill: s

13.  Honesty: s

14.  Male (only in hudood cases: s

Incompetent witness: Law has debarred some persons to appear as competent witness. Detail of those is as follows:

1.      Incapacity of rational response: Person who is incapable to understand the question put to him or who cannot give rational answers of court is not competent witness.

2.      Young age factor: Although no age limit is prescribed for the competency of witness but it does not mean that person of every age can appear as competent witness. Person who due to young age factor cannot understand the requirement of evidence is not considered competent witness.

3.      Old age factor: Old age does not matter but it matters a lot. Person who due to old age factor could not understand the rationality of the questions and answers put to him in court is not competent witness.

4.      Bodily infirmity: Person who is bodily infirm is not competent witness.

5.      Mental infirmity: Person of unsound mind is debarred to appear as competent witness, i.e., who was person of unsound mind at the time of occurrence of incident.

6.      Conviction in false evidence: Person is not competent who has been convicted in false evidence except where he has been repented and mended his ways.

7.      Unable to understand: s

8.      Lunacy: s

9.      Slander: s

10.  Where is interest: s

11.  Habitual liar: s

12.  Female in hudood: s

Determination of competency of witness: Where there is any doubt of competency of witness, only court shall determine his competency by putting questions to him. His response shall explore his competency.

Exceptions: Law has prescribed certain exceptions for the competency of the witness such as:

1.      Ordinary witness: Where person of the qualifications prescribed in Quran and Sunnah is not available, the court may take the evidence of the person who is available to testify the fact in issues.

2.      Repented person: Person who had been debarred to appear as witness due to his disqualification by way of false evidence or any other major sins, can be considered as competent witness if court thinks that he has mended his ways and repented.

3.      Lunacy while testifying: A person who was person of sound mind at the time of occurrence of the incident is not incompetent witness if he loses his memory or becomes person of unsound mind while he testify the truth before court. Court shall give him reasonable time for recovery so that he may testify truth before court. Time relaxation is provided to reach at truth and conclusion.

4.      Child witness: Child is competent witness provided court thinks him competent by testifying as to his ability to give evidence. Set question cannot be asked to determine his ability to give evidence.

Judges and Magistrates: Judges and Magistrates are not bound by law to give answers of the questions such as:

1.      Conduct of the Judges or Magistrates in court.

2.      Any matters which come to their knowledge during proceedings.

Exception: Law provides an exception to this rule as to their privilege, that superior court may order Judge or Magistrate to answer the question relevant to the case which was under his trial. Upon the order of superior court, Judges or Magistrates must have to depose (giving statement) such improper evidence, which they had admitted. Their evidence is upto the extent of the case they tried. Their evidence is confined and not opened to other matters, which are irrelevant. This exception is allowed only in the case where court could not adjudge due to complex situation.

Immunity or privilege: It is granted to certain persons so that requirement of justice can be fulfilled. It helps in arrival to truth. Where person is reluctant to provide evidence due to reason that he shall be convicted or truth shall be brought, immunity is granted to him. Person who has immunity cannot be convicted upon truth he provides in evidence.

Immunity also prevents the possibility of the false evidence because person, having privilege always produces truth because he cannot be trapped on the truth he produces. S. 182 of Pakistan Penal Code provides it punishable.

Immunity of married persons: Under this law a married person shall not be:

1.      Compelled to disclose any communication made to him during marriage by any person to whom he is married.

2.      Permitted to disclose any such communication, except:

(1)         When the person who made it or his representative-in-interest consents, or

(2)         In suits between married person, or

(3)         In proceedings in which one married person is prosecuted for any crime committed against the other one.

It is notable thing that privilege remains exist even after divorce takes place. Person making evidence may waive off privilege at any time after divorce. Privileges are provided either on the ground of natural love and affection or to evade from false evidence thus no prosecution or litigation may take place on the ground of facts revealed from the evidence, which is privileged. Information disclosed before marriage does not provide privilege on subsequent marriage. The only test is the information is disclosed during the subsistence of marriage. Once a privilege is always a privilege. It can be waived off but it cannot be ceased to exist (abandoned or discarded or discontinued or ceased). It is not available for the matters before the marriage but it remains available after the divorce has taken place. During the marriage if spouse appears as witness for the offence committed against third person, cannot produce evidence until second spouse consents. But if both spouses are parties against each other, then consent for evidence goes immaterial.

Immunity on state matters: Matters of state may or may not be disclosed. Matters which are declared confidential or against public policy are not disclosed if come into knowledge. If they are required to be disclosed, then permission of the departmental head is required to do so, which may or may not be granted. Nuclear programme is such example. Person who knows the unpublished matters may refuse to disclose in evidence on the grounds of either against public policy or sensitive matter. Head of the department may grant permission for evidence if there is no apprehension of violation of public policy.

Information as to commission of offences: Law enforcing agencies have certain informers who help in elimination of crimes. They inform police whenever offence is committed. Police or Magistrate has immunity to disclose as to whence (from where) they got information. They may waive off their immunity provided public interest does not suffer. But waiver off immunity may cause problem to informer. Informer would not inform police about the crimes committed.

As police gets information from informer, collects independent evidences as to prove crime committed. Evidences acquired are used against accused. Question cannot be asked to police as to how and from where information was received. Police has interest in the information of the commission of crime. Mere information is not sufficient for the conviction of accused. Information is mere opening of the trial. Conviction or punishment depends upon evidences which prosecutor collects during enquiry and presents them in court. Normally informers are not disclosed as sources of information but they can be called as witnesses where immunity is waived off. Waiver of immunity does not need the consents of the informer. This is privilege of police and not of informer. Discovery of offence weapon or stolen property, postmortem report, signs of foots, evidences, and identification parades are sufficient grounds to convict the offender. Mere information is nothing.

A Magistrate or Police Officer cannot be compelled to disclose the source of information received by him as to the commission of an offence. It is of importance to the public for the detection of crimes that those persons who are the channel by means of which the detection is made should not be unnecessarily disclosed.

Professional communication: Professionals are not allowed to disclose any material received during the course of their business from their clients. Advocates proceed the cases based on information received from their respective clients. They cannot disclose such information unless they get express consents of their clients (). While deciding whether it should be disclosed or not, relationship between them remains determinant factor. If communication is made before going into contract or after gone into contract, immunity will not be available. Immunity rests only for the period of relationship. Furtherance of commission of crimes cannot enjoy immunity even made while relationship with lawyer.

If offender says his lawyer that I have committed an offence and you have to defend me does not constitute offence and immunity shall remain available.

Where client says to his advocate that he has to get property by means of forged documents and you have to protect me is not covered or protected from disclosure.

Production of title deed of witness, not a party: A person who is not party in a case and has a title deed, cannot be compelled to produce such title deed as evidence unless owner of the property consents.

Person who may criminate by producing evidence shall not be tried on the statement he gives as witness. He may be compelled to give evidence but his evidence, whatsoever is, cannot be used against him as confession. This protection does not amount privilege, but it is mere protection. Under privilege person cannot be compelled to produce evidence but under protection he may be compelled to produce evidence but his evidence shall remain evidence and not confession.

Person who has not privilege, if is compelled to give evidence and he refuses to give evidence is supposed of guilty of false evidence and if he gives true statement then he may be charged. By this way truth remains concealed. In order to find out the truth to reach on conclusion, law gives protection to witness to ensure the justice.

Production of documents relating to other: Where a person holds documents relating to other cannot be compelled to produce such documents as evidence unless its actual master consents.

Accomplice: He is a person who helps in an offence. He may not commit an offence physically but by the reason of common intention either express or implied, he is held guilty of an offence and he is liable to the same punishment for what principal offender is. He may assist the principal offender before or after the commission of an offence.

Question arises that whether an accomplice is competent witness. As far as English law is concerned, he is not only competent witness but conviction can be awarded on his evidence. He alone is sufficient for conviction. Approver (an accomplice who turns Kings evidence) is also accused thus competent witness.

Exception to this rule: Pakistani law provides an exception to this rule for the offences, which come under Hudood crimes (AjU efY). Hudood crimes are those, which are, declared crimes in Quran expressly and their punishment has been fixed under Quran. They are not compound-able. They are seven in number including theft, alcohol consumption, adultery, dacoity, sedition, slander of woman (defamation), and apostasy. Accomplice is not competent witness in Huddon crimes. Only Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirement of tazkiyah al-shuhood (erA lM), that they are truthful persons and abstain from major sins

(Kabir jJ), give evidence of the accused having committed the offence liable to Hadd.

Evidentiary value: Piece of evidence determines the liability and punishment of an offender. Witness is also taken into consideration. His education and character are also factors, which evaluate weight and value of evidence. Approver betrays his companions in the dock and who has no scruples either in exaggerating (overstate, larger than normal) their part in the crime or in substituting in a well thought out narrative a completely innocent man for friend whom he is still anxious to save. In evidence his self interest may involve. In order to save skin he may state which is not committed. Corroboration (acknowledgement or affirmation) of his evidence from an independent source may testify truth. But punishment mere on his evidence may lead to injustice. Although Pakistani courts are not bound by law to corroborate his evidence but under law corroboration is desirable. Accomplice is presumed unworthy unless rebutted. Article 129 of Qanun-e-Shahadat Order, 1984, provides that court may presume the unworthiness of the accomplice.

Number of witnesses: As a general rule, only one witness either male or female is sufficient for conviction. But as far as Hudood crimes are concerned Quran and Sunnah determine the number of witnesses.

In all other matters than of Hudood crimes, mere one witness is sufficient for conviction.

Financial and future obligations need two males or one male and two females witnesses for conviction.

Relevancy of facts: There are two kinds of facts for which evidence is adduced in court, i.e., facts in issue and relevant facts. Facts in issue are those which are alleged by one party and denied by the other on the pleadings, in a civil suit; or alleged in the charge and denied by the plea ofnot guilty in a criminal case, so far as they are in either case material. On the other hand, the relevant facts are all those facts which are in the eyes of law so connected with or related to the fact in issue that they render the latter probable or improbable or roughly throw light upon them.

A files suit against B for the recovery of Rs. 5,000/-. If B admits the borrowing of Rs. 5,000/- then no fact in issue shall be framed thus no evidence shall have be adduced to prove the fact. But if B refuses the fact of borrowing of Rs. 5,000/- then A shall be required to adduce evidence to prove the lending of Rs. 5,000/-. Fact in issue is the matter undecided. Only evidence may prove the truth of the facts. Any fact against which court needs evidence to prove it is called fact in issue.

If B admits the borrowing of Rs. 5,000/- but alleges its repayment to A is again fact in issue thus requires evidence to prove the fact of repayment, which A denies.

Some time relevant facts prove the truth of facts in issue. For instance, denial of B can be proved through the Cheque issued to him while the receipt of Money Order can prove repayment. In this way Qanun-e-Shahadat is applicable both on facts in issue and relevant fact to testify truth.

How the relevancy is proved? Law provides list of relevant facts, which more or less covers all the matters, which may occur.

Relevancy of facts forming part of same transaction: All the facts, which are so, connected with the same transaction immediate or later, proximity or remote, or direct or indirect are relevant facts thus they form single fact. For example, delivery of goods involves several intermediaries who successfully deliver the goods. Each delivery constitutes relevant fact.

A good example of what different acts constitute one and the same transaction, is afforded by a case where the prisoner in order to remove a cart of which he committed theft, broke into the cattle-shed of a neighbour of the cart owner, took out the bulls and drove off the cart to a distant place. It was held that the house breaking into the neighbors shed was essential to the theft of the cart and bulls of the owner, so that one could not be done without the other. And therefore, the two acts, i.e., house breaking and removal of the cart and the bulls formed parts of the same transactions.

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

What is transaction: The term transaction has been defined as a group of facts so connected together as to be referred to by a single legal name, as a crime, a contract, wrong, or any other subject matter of inquiry which may be in issue.

Extra-judicial confession Article 37: The word confession has not been defined in anywhere in law. A confession is an admission made at any time by a person charged with a crime, stating, or suggesting the inference that he committed that crime. The value of extra-judicial confession is not very high.

A confession must either admit in terms the offence or at any rate substantially all the facts, which constitute the offence.

Extra-judicial confession is made before the private person, i.e., other than Magistrate or Police Officer. Judicial confession is made before Magistrate having jurisdiction in the case.

Confession in jail before fellow prisoner is extra-judicial confession because it is not made before Magistrate. Confession using threat, inducement, or promise is not reliable. Authority before whom confession is made must be high such as landlord and tenant, officer and subordinate, headman and cultivator etc. This is made to avoid any blackmailing or any other evil cause. This confession is not only extra-judicial but also irrelevant and not liable to use against accused.

Some time a person makes confession for temporal (secular, non-spiritual) purposes before private person. It is not acceptable at all in law. There may be threat to his family, parents, and children etc. It becomes relevant if it is made voluntarily.

Confession to police not to be proved Article 38: Police Officer is not authorized to take the statement of confession. If any accused confesses before police officer, his confession shall not be used against accused. It is not material whether accused was aware the person before he has made confession is police officer. This confession cannot be used against accused.

Also under Article 39, confession made by accused before Police Officer while custody cannot be proved against him unless it is made in the immediate presence of Magistrate. The presence of Magistrate secures the free and voluntary of the confession and the confessing person has an opportunity of making a statement uncontrolled by any fear of the police.

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

Confession in consequences of discovery Article 40: If the confession of the accused is supported by the discovery of a fact it may be presumed to be true and not to have been extracted. It comes into operation only:

1.      There must be a fact discovered.

2.      The fact must have been discovered in consequence of some information received from the accused.

3.      The fact discovered must be relevant.

4.      The person from whom information is received must not only be an accused but must also be in the custody of the police.

5.      The information sought to be used in evidence must distinctly relate to the fact discovered.

If upon the information of the accused, crime weapon is discovered while he is in police custody, his confession is supposed to be true.

Where police already knows the happening of the crime, then the information provided by the accused are not called confession.

S. 164 of Code of Criminal Procedure applies on this type of confession. It must be recorded before Magistrate. Magistrate shall explain to person that he is not bound to confess and his confession may go against him. His confession must be voluntary. Magistrate certifies the confession as provided in this section and puts his signature.

Confession before Imam is admissible because he is public person and not a policeman thus relevant to prove the guilt of accused. Confession before a policeman who acts as Imam is not confession at all because law categorically prohibits it.

Philosophy of punishment: Punishment is not taken as revenge. It has philosophy behind it. There are four major points, which supports it. They are as follows:

1.      Crime must be punished, as it is evil as against public, which should not be left without tracing.

2.      It is deterrence (restriction, hindrance, control, limitation) to public as public remains away in doing such things result of which is not desirable.

3.      It is deterrence to offender himself, as he should not commit such offence again to prevent himself from punishment.

4.      Offender is put to jail as jail prevents offender himself and others to suffer from offences.

Confession after removal of danger Article 41: Where accused makes confession voluntarily after the removal of impression caused by inducement, threat, or promise are relevant and used in proceedings. Where confession is made in Panchayat (OB), it is held inadmissible.

Relevant confession under certain circumstances Article 42: Where accused is not bound to confess and confesses voluntarily is relevant. A relevant confession does not become irrelevant because it was made:

1.      Under a promise of secrecy.

2.      In consequence of a deception practiced on the accused.

3.      When the accused was drunk.

4.      In answer to questions which the accused need not have answered.

5.      In consequence of the accused not receiving a warning that he was not bound to make it and that it might be used against him.

6.      After removal of inducement.

7.      After removal of threat.

8.      Before lower rank.

9.      Before private person.

10.  Before Police Officer where is recovery.

11.  After withdrawal of promise.

Statements made by a person in sleep are not receivable in evidence. But a statement made by an accused when he is drunk is receivable in evidence. If a Police Officer gives an accused liqueur in the hope of his saying something and he makes any statement, that statement is not rendered inadmissible in evidence. In consequences of question and answering, statement of accused is considered true. Where accused is not bound to confess, his confession renders him liable against his guilt. It is notable that above provisions are not applicable in the cases of Hudood.

Consequences of confession are only for confessor Article 43: Where more than one persons commit a crime and one of them makes confession in a trial, it shall be considered only against the person who makes confession.

Joinders of the same crime are not subject of the confession, which is made from one of them. However such confession is used as circumstantial evidence against the rest of offenders.

Illustrations: A and B are jointly tried for the murder of C. It is proved that A said: B and I murdered C. The court may consider the effect of this confession as against B.

A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said: A and I murdered C.

This statement may not be taken into consideration by the court against A, as B is not being jointly tried.

In these circumstances, confession of one accused and circumstantial evidence must be corroborated against the joinder of the crime.

Applicability: Before a statement by one of the accused persons can be taken into consideration against the other accused, following conditions must be satisfied:

1.      The statement that is sought to be used, against the co-accused must be a statement that amounts to a confession.

2.      The confessing accused must be tried jointly with the accused against whom the confession is sought to be used.

3.      The confessing accused and the accused against whom the confession is sought to be used must be tried for the same offence, or for attempt, or abetment thereof.

4.      The confession must implicate the maker substantially to the same extent as it implicates the accused against whom it is to be used.

5.      The confession must be duly proved.

Liability of cross-examination Article 44: All accuseds are liable to cross-examination. According to the Constitution of the Islamic Republic of Pakistan no person when accused of an offence, shall be compelled to be a witness against himself.

Admission is not proof Article 45: Unless admission constitutes an estoppel, it is not conclusive and it is always open to its maker to show that the statements were mistaken or untrue.

Oral evidence Article 70: Facts can be proved by oral evidence where contents of documents are not available. But it should be direct oral evidence. It means that person who is eyewitness must appear in court to testify the truth of the facts. Since he has seen the facts on spot in his presence therefore his presence in court strengthens the weight of evidence. Hearsay evidence is not direct evidence. Law demands that there must be best direct evidence. Document is preferred on oral evidence. Where written matter is in question, document is the only thing, which can prove the truth of the dispute. Primary evidence is preferred on secondary evidence.

Secondary evidence is certified copy of public record. It is a document, which rests in the custody of government officer. He certifies its copy as correct as original. It bears signature, name, designation, and seal of the attesting officer. Photocopy from the original document is admissible. Copy from copy is not acceptable. Counterpart of original document is desirable as secondary evidence. Counterpart is the similar document prepared and signed by each party separately. Each document contains only one signature.

Secondary evidence is given where court permits it. Party itself cannot decide whether primary or secondary evidence is to be produced. It is only court, which decides the matter on merit. It is allowed in the cases where circumstances allow. Destruction of documents by way of theft, flood, earthquake, fire etc. may advance the need of secondary evidence. Where court satisfies, secondary evidence is permitted. It should be taken into consideration that intentional or fabricated or artificial destruction of document is not acceptable as good ground to advance oral evidence.

Direct oral evidence Article 71: Oral evidence must be direct as seen, heard, perceived, or held that opinion on such grounds.

Secondary evidence is permitted where documentary evidence is lost or not available due to reasons uncertain. Permission of oral evidence requires sufficient proof of having no documentary proof. Only court permits oral evidence. Where once permission for oral evidence is granted, it excludes the chances to produce documentary evidence later on in any circumstances. Documentary evidence shall be kept in pocket. Court may say that you were given the opportunity to testify the truth by documentary evidence, but you failed to do so, therefore, now your right to produce document shall be subject of the permission of court or the adverse party. It is, in general, not granted. Where documentary evidence is available, it excludes oral evidence.

Law says categorically that oral evidence must be direct, that is, if it refers to:

1.      Seen fact: A fact, which could be seen, the evidence must be of a witness who says he saw it. His evidence on the seen facts has more weight-age than of who has not seen the fact himself. He also knows well about the circumstances in which incident takes place. He is the direct source of evidence. Keeping in view of his importance, court considers his evidence first before going into other sources.

2.      Heard fact: A fact which could be heard, the evidence must be of a witness who says he has heard it. Where in a case of bribe, during the handing over amount, the actual talk between the person giving and taking bribe is the determinant factor. Mere observation of bribe is insufficient to constitute the offence.

3.      Perceived fact: A fact, which could be perceived, by any sense or manner, the evidence must be of a witness who says that he has perceived it by that sense or that manner. Where death is caused by gas, evidence of the person who actually smells the gas is relevant.

4.      Factual opinion: An opinion, or the grounds on which that opinion is formed, the evidence must be of a person who holds that opinion on those grounds. In the case of forgery, the opinion of expert who can distinguish or compare handwriting or fingerprints is relevant. Since he is expert therefore his report is best evidence.

Exception: Although in case of oral evidence it must be direct but there are some exceptions to this rule which are as follows:

Shahadah-ala-Shahadah (eBrA eBq): Where person has been died or left the country or wants to conceal himself due to security reasons and possibility of his appearance lacks, a party desirous to produce evidence has a right to produce Shahadah-ala-Shahadah (eBrA eBq). Where a witness is under fear that he shall be killed in combat (police contest) can also produce this type of evidence. Under this type of evidence witness appoints two

witnesses who depose on his behalf. It should be kept in mind that clash in oral evidence extinguishes its truth-ness.

Evidence can be transferred to two persons where life of innocent person depends upon evidence of the person who wants to conceal himself and refrains to appear before court due to reasons certain. Two persons are the requirement of law as their evidence can be tested against each other while evidence of one person cannot be tested. So to conclude the case in the absence of actual witness, evidence of two persons becomes necessary.

How oral evidence is got recorded: There are three main methods whereby oral evidence can be got recorded, such as:

1.      Spoken or oral recording: Where witness is educated and able to convey his evidence, having well five senses, i.e., has good sight, hearing, and perception power, must get record his evidence personally by way of oral evidence.

2.      Written recording: Where witness has all requisite qualities except the power of speaking, i.e., he is dumb (mute, tongue-tied, silent, speechless), but he may write, he may give evidence by way of writing.

3.      In yes or no form: Where witness is deaf (lacking sense of hearing, hearing impaired, without hearing, unable to hear) and dumb, he can answer of questions of examiner in chief or cross examiner in term of yes or no by body gesture (use of sign language, head motion).

Preference of ocular evidence: Ocular evidence is preferred on hearsay evidence on the grounds of test of eyewitness. Where document has been lost due to any reason uncertain, evidence of eyewitness can testify its truth even the person testifying was not signatory on document.

Test of evidence: Court may apply three tests to come to conclusion whether the evidence given is true. Hearsay evidence is liable to test. Following are the three tests:

1.      Oath: In first place, court takes oath from the witness. It is understood that the person giving evidence under oath is true. But if, later on, it is revealed that the evidence given under oath was false, the same punishment shall be imposed to the person who gave false evidence. Punishment on false evidence is not forgiven. False evidence is not tolerated. Particularly when death penalty is imposed on false evidence, the person upon whose false evidence, innocent person is hanged is also punished with death penalty. In other cases imprisonment upto ten years can be given.

2.      Cross-examination: In second instance, test which court applies is cross-examination. If cross-examiner puts right questions to witnesses, it can infer the reality. True and untrue can be separated. False and truth can be discovered. Reality can be exposed. Good cross-examination can bring to light the actual reality.

3.      Demeanor (face reading): Finally court may examine the face expression during the evidence. Court shall look into face and eye expression. Expressions never speak lie. Eyes and face always speak truth. Variance in reality and statement appears on face, which testifies the actual position of statement.

Exception: Evidence under Shahadah-ala-Shahadah (eBrA eBq) is not applicable in Hudood cases.

Cases in which statement of relevant fact by person who is died or cannot be found Article 46: Some time person dies and dying makes person incapable to appear in court to give evidence. There may be some other reasons for such disappearance like that the person has left the country or he cannot be found or he is under fear of death, or other reasons whatsoever relevant are. His statement can be admitted in lieu of his personal appearance.

There are some exceptions to the Hearsay rule of the evidence. Secondary evidence of any oral statement is called hearsay evidence. The repetition by a witness of that which he was told by someone else, who is not called as a witness is hearsay, and is therefore, as a general rule, inadmissible. The reasons for this rule are obvious. We can generally trust a witness who states something, which he himself has either seen or heard; but when he tells us something, which he has heard from another person, his statement is obviously less reliable thus unsatisfactory.

A multitude (gathering, collection) of probable contingencies diminishes its value. The witness may have misunderstood or imperfectly remembered, or even may be willfully misrepresenting the words of a third person; or the later may have spoken hastily, inaccurately, or even falsely. Moreover, the person who is really responsible for the statement did not make it on oath; he was not cross-examined upon it, and the court had no opportunity of observing his demeanor when he made it. It is fundamental principle of our law that evidence has no claim to credibility, unless it is given on oath, or what is equivalent to an oath, and unless the party to be affected by it has an opportunity of cross-examining the witness.

Following are the cases in which statement in lieu of evidence is admissible:

1.      When it relates to cause of death: Where a person is dying and cannot appear in court for evidence in offence committed against his body is not required to attend court. Recording of his statement in the presence of two witnesses is sufficient to prove offence committed. Only Police Officer having jurisdiction over subject matter is competent to record such dying declaration. Person dying knows well about the murderer or guilty person. He also knows the reasons of such injury. His statement should be in written form. If he is incapable to write statement, then competent Police Officer writes the statement in the presence of two witnesses. It may contain different questions and their answers.

This evidence is admissible only in case where person injured has been died after getting record of his statement. If he is alive, he must be produced in court for evidence. In another case, this statement must be in writing.

Value of the evidence: Evidence given in such a manner has the same value as evidence given in the ordinary manner. Death penalty may be given upon this evidence. It is as good as evidence, as ocular evidence is. Court keeps in view of the smell truth in the evidence.

Case: In an English case an English lady received grievous injury and was near to death. She was not in such a position to tell her story. Policeman said her to move her head in yes or no position when he will ask questions from her. She replied all his questions, which he recorded. Death penalty was given on this evidence.

Case: In another case witnesses told the story of the person killed. They said that bullet was fired within 10 to 12 feet distance. After getting injury, victim turned back and saw his enemy with gun and then recognized the guilty person who had fired over him. This evidence was not admitted on the ground that it is not possible for an injured person to turn back for the recognition of murderer within such distance against the injury caused by such high velocity gun.

Case: In another case an injured person was taken into hospital and was kept in lawn for a longer time. His statement was recorded quite after his arrival in hospital. Evidence was not accepted on the grounds of suspect that doctors might have tried to fabricate the evidence. Since the smell of truth was suspected therefore evidence not admitted.

2.      Where statement is made during the course of business: Where person has made his diary in the course of business and left the country or concealed himself due to any reason, his recordings can be produced in court as evidence.

For instance, Captain of the vessel maintains the logbook in which he records day to day transactions such as speed of ship, its direction on certain time, position in sea, distance from seashore, accident etc. Where Captain is incapable to appear before court to give evidence due to any reason, his maintained logbook shall serve the purpose to confirm the evidence. This evidence is as much as valuable as the evidence given by the actual person required.

Doctors maintain report while making postmortem. They put all transactions in register. In the absence of the doctor who has made the report, such record can be produced in court to prove the facts in lieu of person who made it.

Entry of death in corporations record is also another instance. Nikah is entered in prescribed form and it is got registered. Such registry is conlusive proof of Nikah.

3.      Admission against the interest of maker: Where an evidence may cause injury to the person giving it and his statement may contribute in the decision or where he may suffer from the pecuniary loss, upon his behalf, his statement can be put forward to decide case. Where a person admits the borrowing of Rs. 20,000/- in civil suit, it means he has admitted the fact against his interest thus his statement serves as valid evidence. Court always welcomes this sort of admission because it leaves nothing undone.

4.      Where custom proves: Where in the dispute as to claim of ownership over pasture (grazing land) could not be proved due to non-appearance of person, then custom of the locality can prove such dispute. There are certain customary rights of person over pasture, fishing, boating, well, road etc. The questions whether road is public or private, statement of the person who knows the facts or village headman are relevant. Person making evidence certifies in writing that the particular right was customary.

5.      Existence of relationship other person who knows: There are three types of relationships, i.e., blood, marriage, and by adoption. Where the relationship is to prove and there is not personal evidence, how such relationship shall be proved? In the absence of principal witness, other people who know or have reasonable believe on the existence of relationship may appear to give evidence. He may be of witness of solemnization of his marriage or he may have attended his wedding anniversary or his sons birthday ceremony. Marriage certificate can prove existence of relationship. Any other person who has special knowledge can submit his written statement.

6.      Proof of Will: Where Will is written and got registered, shall be enough to prove the existence of relationships. Personal appearance shall become immaterial. When court issues the certified copy of Will, which is called Probate, proves the relationship. Special mean of knowledge of the facts of relationship proves the case. Pedigree tree is such a thing to prove relationship. Family settlement, which is written, is also proof of Will. Tombstone (memorial, headstone, or piece of stone fixed on grave (iAl `)) can also be determinant factor. Family portrait in which all relatives are shown is also proof. It should be noted that this writing must be made before the dispute is arisen. Fabrication can be put into writing when dispute arises, therefore, statement produced in court should be prior written.

7.      Creation of rights: Where rights are created in favour of others like grazing rights or fishery rights etc., deed in which such rights are created is conclusive proof of right. Where document or deed is not available the circumstances such as sub lease may prove the creation of right of certain person or persons.

The question is whether A has a right to a fishery. A deed conferring the fishery on As ancestors, a mortgage of the fishery by As father, a

subsequent grant of the fishery by As father, irreconcilable with the mortgage, particular instances in which As father exercised the right, or in which the exercise of the right was stopped by As neighbors, are relevant facts.

8.      Several eyewitnesses: Where a person makes a caricature and fifty persons watch it and make protest considering it defamation are not required to appear before court to prove incident. Mere presence of one person shall be considered sufficient to prove case. For instance, A sues B for a libel expressed in a painted caricature exposed in a Station Housing Officer . The question is as to the similarity of the caricature and its libelous character. The remarks of a crowd of spectators on these points may be proved.

Relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated Article 47: Where a person gives evidence in a judicial proceedings or before any person authorized by law is relevant in later stage even if he conceals himself later on. Prior evidence is admissible. This provision has some exceptions:

1.      Similar proceedings: Proceedings should be same otherwise evidence shall not be relevant.

2.      Same parties: Proceedings should be within same parties or their representatives. Where parties are not same, such evidence becomes irrelevant.

3.      Right and opportunity of cross-examination: Right of cross-examination was provided to adverse party. They also had opportunity to cross-examine. Whether they availed or not the opportunity is irrelevant, but mere the provision of right and opportunity is sufficient to consider the evidence.

4.      Similarity of the questions: Questions should be same in the first and subsequent proceedings. Minor change is negligible. Substantial similarity is required.

Relevancy of certain judgement in probate, etc., jurisdiction Article 55: Where a judgement in personam is pronounced, it is considered conclusive proof. For example, where dispute between A and B is pronounced against B shall not affect to C who is not party to this case. This Article consists on two parts. The first part makes the final judgement, order, or decree of a competent court in the exercise of probate, matrimonial, admiralty, or insolvency jurisdiction relevant, the second part makes the judgements conclusive proof in certain matters. But as far as judgement in rem is concerned, it not considered conclusive proof generally. But there are some exceptions to this rule such as:

1.      Probate: Where court issues certified copy of Will, it effects the necessary and proper parties of the case either they are present or not in court. Their consents become irrelevant. Where court issues certified copy

of Will, it can be produced as relevant fact in other cases. The grant of probate is conclusive proof of the title of executors and of the genuineness of the Will admitted to probate. The conclusiveness of the probate rests upon the declared Will of the Legislature. The grant of probate is the method, which the law specially provides for establishing a Will. Probate ceases the legal character of demised person. He is now no more owner of the property in question.

2.      Matrimonial: Where divorce takes place and judgement is pronounced it becomes conclusive proof being the separation of the two persons. It is relevant for other party. A judgement of a matrimonial court, decreeing divorce or nullity of marriage is binding as to the status of the parties concerned. It is conclusive upon all person that the parties have been divorced and that they are no longer being husband and wife. But a judgement in a suit for restitution of conjugal rights is a purely private suit between two persons, and such a judgement is not a judgement in rem within the meaning of this Article.

3.      Admiralty: Where matter is related with merchant navy, it affects others. It is relevant for other party. Admiralty jurisdiction is conferred on several High Courts by Letters Patent. It ceases its legal character.

4.      Insolvency: Where a person has been declared insolvent, he affects others who are solvent. His insolvency becomes relevant for others. A previous judgement passed on a compromise is a judgement in rem within the meaning of this Article and is therefore no bar to a subsequent suit. Judgement is relevant and conclusive proof for other solvent associated parties. Judgement declares the legal character of solvent into insolvent. He ceases to be a solvent.

Conclusive proof: When final judgement is pronounced, it becomes conclusive proof in all cases above noted. Once the case has been decided it is binding on all parties and relevant as well. Ignorance or consent of others remains no relevant and important.

Relevancy of judgement in rem Article 56: Any judgement, which is in rem, is relevant for other parties but it is not conclusive proof, which it includes. This judgement can be considered but not as conclusive proof.

Under this Article judgements relating to matters of a public nature are declared relevant, whether between the same parties or not. It also forms exception to the general rule that no one shall be affected or prejudiced by judgement to which he is not a party or privy. The exception just stated is allowed in favour of verdicts. Judgements, and other adjudication upon subject of a public nature, such as customs, pre ions, tolls, boundaries between parishes (district), counties, or manors (large house), rights of ferry, liabilities to repair roads, or sea-walls, moduses, and the like. In all cases of this nature, as evidence of reputation will be admissible, adjudication, which for this purpose are regarded as a species of reputation, will also be received, and this, too, whether the parties in the second suit be those who litigated the first, or be utter strangers.

These exceptions are based on the principle that in matters of public right the new party to the second proceeding, as one of the public, has been virtually a party to the former proceeding and therefore, he is properly excused. For the application of this Article two conditions are necessary. Firstly, that the judgement must relate to a matter of public nature and secondly, that it satisfies the first requirement that it is not a judgement which is admissible under either of the last preceding two Articles.

Example: A sues B for trespass on his land, B alleges the existence of a public right of way over the land, which A denies.

The existence of a decree in favour of the defendant, in A suit by a against C for a trespass on the same land, in which C alleged the existence of the same right of wae1