LAW OF EVIDENCE

Re: The Proposed Draft "Law of Eviden e Ordinan e" Prepared !" the Co#n i$ of Is$a%i Ideo$o&"'

We have examined the provisions contained in the proposed "Law of Evidence Ordinance, 1982", and our views in respect thereof are contained in the paragraphs that follow

!n the first "onstitution of the "ountr# i e , the 19$% "onstitution, the following

fundamental principles were enunciated&'

(a)

that no law repugnant to "!slam" (in*unctions of +uran and ,unnah) shall -e passed in .a/istan0 and

(-)

that the existing laws in the "ountr# shall -e -rought into conformit# with the !n*unctions of !slam, (+uran and ,unnah) (1rticle 198)

3he a-ove principles continued to find place in all the su-se4uent "onstitutions !n the

"onstitution of 1952, the# are em-odied in 1rticles 225 and 226 1ll the su-se4uent legislations were enacted in accordance with this principle, i e , their conformit# to the !n*unctions of +uran and ,unnah

,o far as the in*unctions of +uran and ,unnah are concerned there cannot -e two

opinions, -ut in the a-sence of an# specific command in +uran and ,unnah, the legislative field

is open and laws can -e enacted to suit the re4uirements of our ,ociet# su-*ect, of course, to the condition that no part thereof should militate against the !n*unctions of +uran and ,unnah

3he main tas/ -efore the 8overnment at present, is to see that all laws and ,tatutes in

the countr# are -rought into accord with the tenets of +uran and ,unnah 3he important 4uestion, at present, re4uiring close and o-*ective consideration is, whether the present Law of Evidence should -e replaced, in its entiret#, -# a new !slamic Law of Evidence -ased on the !n*unctions of +uran and ,unnah or the existing Evidence 1ct, which has stood the test of the time for more than a centur# and is full# /nown to the mem-ers of the 9udiciar#, the :ar and the common pu-lic, ma# -e examined thoroughl#, section -# section and clause -# clause, and onl# those provisions thereof which are, in an# manner, in conflict with the tenets of +uran and ,unnah -e either eliminated or suita-l# amended, so as to -ring the law into accord therewith 3he "ouncil of !slamic !deolog# preferring the first alternative has drafted the proposed Evidence Ordinance, while the .a/istan Law "ommission, supporting the second alternative, suggested certain amendments in the existing Evidence 1ct so as to -ring it into accord with the tenets of +uran and ,unnah and to improve it from the view point of utilit# also

While assessing the merits and demerits of an# proposed legislation, we have to /eep

-oth the aspects in view, i e , it should -e in accord with the tenets of !slam and should also -e applica-le to all /inds of litigations, -oth civil and criminal, and should help in avoiding inordinate dela# in the administration of *ustice

:efore underta/ing an examination of the various provisions contained in the draft "Law

of Evidence Ordinance", it will -e useful to ma/e a few o-servations in respect of the scope and nature of the Law of Evidence 3he o-*ect of all legal proceedings is to determine the rights

and lia-ilities of the parties under some su-stantive law, which are -ased on certain facts relevant thereto 3he principal aim of the Law of Evidence is to prescri-e legal principles to -e followed -# the "ourts while ascertaining the proof of such facts and appl#ing the provisions of su-stantive laws in order to decide the cases -efore them correctl# 3he ;ules of Evidence are, therefore, procedural in nature and appl# practicall# to all /inds of *udicial proceedings 3hese rules can roughl# -e divided into two parts0 one part comprises rules for the measurement or determination of the pro-ative force of evidence and the other includes rules determining the modes and conditions of production of evidence 3he former deals with the effect of evidence when produced and the latter with the manner in which it is to -e produced !n order to assess the merits of the proposed draft "Evidence Ordinance" it is a-solutel# necessar# to examine it in comparison with the existing Evidence 1ct of 1852

Eviden e A t ()*+ 8 :riefl# spea/ing, Evidence 1ct, 1852, consists of three parts .art'!, consisting of

"hapters 1 and 2, deals with definitions and relevanc# of facts .art'2, consisting of "hapters 2 to %, relates to the proof of facts -# oral and documentar# evidence .art'2 em-od#ing "hapters 5 to 11, contains rules with regard to production of evidence and the dut# of the "ourt while assessing such evidence !n short, the Evidence 1ct,1852, provides guide'lines for the "ourts to assess and weigh the value of evidence produced -efore them and for the want of which the trial of cases ma# -e mis'directed and ma# lead to miscarriage of *ustice !n fact, while the proceedings are going on, the "ourt is 4uite often re4uired simultaneousl# to dispose of o-*ections regarding admissi-ilit# and relevanc# of evidence in a summar# manner

PROPO,ED ORDINANCE 9 3he draft "Evidence Ordinance" contains 15 "hapters, which provide for certain

su-*ects, which have not -een mentioned in the existing ,tatute of 1852, -ut the draft does not deal with certain other e4uall# important matters which are provided for in the 1ct of 1852 3he provisions of the 1ct of 1852 not included in the draft are of such a material -earing on the su-*ect itself that their omission is -ound to adversel# affect the proposed law in achieving the o-*ect in view i e , -esides -eing !slamic in nature, it should provide speed# and inexpensive *ustice to the litigant pu-lic !t, therefore, needs additions of a large num-er of supplementar# provisions in order to ma/e the Ordinance self'contained

16

!t ma# -e stated that, while the draft Ordinance recognises the importance of relevanc#

of facts to -e proved in a given case, it has omitted altogether the guide'lines contained in ,ections $ to $$ of the existing Evidence 1ct in this regard without even sa#ing that the said provisions in the existing 1ct are repugnant to !slamic in*unctions in an# manner whatsoever

11

!n the foreword of the "ouncil of !slamic !deolog# it has -een stated&'

"!t would not -e out of place to mention here that although certain provisions of the existing Evidence 1ct are not contrar# to ,haria, -ut it is not necessar# to include them in the !slamic Law of Evidence, simpl# -ecause the# are not in conflict with !slam, -ecause a matter, in spite of -eing non'conflicting in nature, ma# -e unimportant"

<rom the a-ove it is clear that the "ouncil has discarded certain provisions of the Evidence 1ct in spite of their not -eing in conflict with the !n*unctions of !slam, on account of their lac/ of importance without mentioning an# reason for this opinion 3he proposed Ordinance will, therefore, have to -e examined from the view point of utilit# or otherwise of those provisions of the Evidence 1ct which, although not in conflict with the !slamic in*unctions, have -een left out in the proposed draft

12

!t ma# not -e out of place

to mention here that the previous Law

"ommissions="ommittees and the present .a/istan Law "ommission have not found an#thing wrong with this part of the Evidence 1ct, 1852, from the view point of !slamic *urisprudence except ,ection 29, relating to confessions made under promise of secrec#, or in conse4uence of a deception practised on the accused person for o-taining it or when he was drun/, or -ecause it was made in answer to a 4uestion which he need not have answered, or -ecause he was not warned that he was not -ound to ma/e such a confession and that evidence of it might -e given against him 3he "ommission, conse4uentl#, recommended that the provisions of this section should not appl# to the trial of cases under the laws relating to >adood ,imilarl# there are other provisions in the 1ct pertaining to documentar# evidence and aimed at helping the "ourts in assessing the evidential value of the facts -rought on record in a case, e g , ,ections %1 to 166 of the Evidence 1ct, 1852, contain useful provisions as to proof of documents and out of these ,ections 91 to 166 relate to exclusion of oral evidence -# documentar# evidence Li/ewise, ,ection 168 of the existing Law of Evidence relates to presumption of death in respect of a person, who has not -een heard of for seven #ears ,ection 112 relates to the 4uestion of legitimac# of a child -orn during marriage 3hese are useful provisions and should have -een retained except a few sections e g , ,ection 112 relating to legitimac# .a/istan Law "ommission has recommended its amendment -# introducing the phrase "-ut not -efore the

expir# of six luner months from the date of marriage" in order to -ring it into accord with the !n*unctions of +uran and ,unnah 3he Law "ommission recommended, in consultation with the <ederal ,hariat "ourt, amendments to ,ections 29, 112, 118, 119, 12%, and 127 of the Evidence 1ct as the# contain provisions which militate against the tenets of !slam, and suggested amendments of ,ections %$, %9, 122 and 127 of the 1ct in order to ma/e them suita-le for our present re4uirements 3he draft Ordinance has, unfortunatel#, not made an# provisions relating to these matters, in conformit# with the !n*unctions of !slam

12

Whenever it is intended to replace a particular law -# a new statute, the framers of the

new law should see that the proposed law does not, in an# wa#, defeat the ver# o-*ect of its legislation, i e , the purpose for which it is -eing enacted and also that it is e4uall# self'contained and well'/nit, if not -etter, as the previous law which is sought to -e replaced -# the proposed legislation 3he o-*ect of the proposed legislation is, as stated earlier, that the law should -e in accord with the !n*unctions of !slam, -ut we fail to understand in what manner the existing Law of Evidence is against those !n*unctions so as to re4uire entire replacement, /eeping in view the aim of speed# and inexpensive administration of *ustice !t ma# -e mentioned at the onset that the provisions contained in the proposed Ordinance relating to Law of Evidence are such that the# will multipl# the "ourts? proceedings manifold, re4uiring separate *udicial en4uiries in a num-er of issues during the trial of cases and will thus cause immense dela# in the disposal of the main cases defeating the ver# o-*ect for which the new law is proposed to -e framed 3he existing Law of Evidence, on the other hand, contains useful provisions to test the veracit# of a witness during the course of his examination and there is nothing in this 1ct which could lead to prolongation of proceedings or dela# the trial of cases in the Law "ourts On the other hand, there are provisions in the 1ct which limit the scope of *udicial en4uir# in matters which

come -efore the "ourts -# excluding ream-ling en4uiries and receiption of inadmissi-le or irrelevant evidence 3he# are thus condusive to saving of time

17

Our o-servations in respect of different provisions in the proposed Evidence Ordinance

are as follows&'

(a)

,ection 2 (i) !n the proposed Ordinance in ,ection 2 (ma*or), has -een defined

as a person, in whom the signs of pu-ert# are visi-le or who, -eing a male person is 18 #ears? old and -eing a female 1% #ears of age, whichever is earlier

3he words "whichever is earlier" have made the whole provision dilator# -ecause in order to determine the criminal lia-ilit# of each accused and veracit# of a witness a regular en4uir# will have to -e made in order to find out whether or not the signs of pu-ert# ( ) had

appeared in the person concerned -efore his or her attaining the age prescri-ed for this purpose, as determination of signs of pu-ert# is a matter more of medical o-servation than that -# a la# man and is alwa#s disputa-le @1ccording to <i4ah'i'>anafi the age of ( and 15 #ears for a -o# and a girl, respectivel# ) is 18 #ears

(ii)

1ccording to the provisions of the proposed Ordinance, (,ection 2) a witness must -e 1dil and the term 1dil has -een defined as, "a muslim who apparentl# performs <raiA and Wa*i-at and shuns Ba-air?

!n accordance with this definition, an# person having a saving -an/ account in a -an/ or who has purchased Cefence ,aving "ertificates or other interests -earing 8overnment securities would -e guilt# of Ba-eera, considered as <asi4 and thus stand dis4ualified as a witness "onse4uentl#, in cases of murder or other heinous offences, if there is a solitar# e#e witness, who does not fulfil these conditions, the offence shall go unpunished -ecause this principle will also appl# to offences punisha-le -# 3aaAir

!n order to determine these 4ualities in a witness, a regular "ourt en4uir#, other than 3aA/ia, ma#, on a num-er of occasions, -e re4uired, particularl# when the existence of these 4ualities in disputed -# the parties to the main proceedings a witness are

(-)

,ection 7 !n "hapter'2, relating to Disa-'i',hahadat, according to ,ection 7, in order to prove the offence of rape, evidence of four sane, ma*or, male muslims is a-solutel# necessar# a-out whom the "ourt should -e satisfied, /eeping in view the rules relating to 3aA/iat'ul',hahood, that the# are 1dil persons and have seen the act, even to the extent of penetration, with their own e#es

3his would mean that a muslim committing this offence in the house of a non'muslim or in a house where onl# female witnesses are availa-le will escape punishment -# >add and shall -e lia-le to 3aaAir

onl# 1gain specific provisions relating to num-er and 4ualifications of witnesses who ma# -e re4uired to give evidence in respect of offences punisha-le -# 3aaAir onl# are conspicuous -# their a-sence except -# means of an inference drawn from the provisions of ,ection %

,ection $ (ii) 1ccording to ,ection $, in cases of ,ur4a,

>ara-a, +aAaf, drin/ing lia-le to >add, evidence of two sane ma*or, male muslims is necessar#, a-out whom the "ourt should -e satisfied that the# are 1dil and that the# had seen commission of the offence with their own e#es

,ection % 1ccording to ,ection %, in all cases, other than >adood and +isas, and few exceptions mentioned in the Ordinance, (,ections 5 E 8), whether fiscal or non'fiscal, evidence of two sane ma*or, 1dil and male, or one sane ma*or, 1dil and male and two sane, ma*or, 1dil women is indispensa-le

!t would, however, again mean that unless and until, in a given case, the prescri-ed num-er of witnesses, with re4uisite 4ualifications, are availa-le, it will not -e possi-le for an# "ourt to convict an accused and in a num-er of cases offences, whether minor or ma*or, will go unpunished

,ection 5 1ccording to ,ection 5, in the matters relating to -irth, virginit# and other matters relating to women, which are usuall# not seen -# men, the evidence of one 14il, :aligh and 1dil Fuslim woman will -e accepta-le !f, however, the defendant or the accused is a non'muslim, then evidence can -e given -# a non'muslim woman as well 3his would mean that in the case of rape, if the accused is a muslim, the evidence of a non'muslim lad# doctor would -e accepta-le 3he proposition cannot -e supported from an# moral or logical point of view

(d)

1ccording to ,ection 8, opinion of one sane, ma*or and 1dil person would -e accepta-le for the purposes of&'

(i) (ii) (iii)

assessment of compensation for an# loss0 for acting as an interpreter for a part# or a witness in the "ourt0 assessment of compensation for in*uries on account of infliction of wounds etc , etc

,ince this provision relates onl# to the matter of expert?s opinion and not to evidence, the exclusion of women from its am-it is not understanda-le !t also remains to -e seen whether an 1dil person can legitimatel# give his opinion on a matter of which he has no /nowledge ,ince the matter relates to opinion and not to evidence, it is not clear as to wh# this should remain confined to 1dil persons onl#

(e)

,ection 9 1ccording to Exception to ,ection 9, in civil cases, in the event of defendant not attending the "ourt in spite of service of summons on him, it will -e sufficient for the plaintiff to produce documentar# evidence to the satisfaction of "ourt and ta/e an oath in support of his claim to get an ex parte order in his favour <or this purpose the condition precedent is that the defendant should have -een served with a summons thrice and he should have remained a-sent without an# ",hari" excuse

3he provisions relating to three times service of summons on the respondent will dela# the "ourts? proceedings, and determination of a ",hari Excuse", (which term has not -een defined), for the respondent?s a-sence, would need a separate *udicial en4uir# re4uiring a good deal of time of the "ourt with the result that disposal of the main case would -e dela#ed further and the o-*ect of speed# administration of *ustice defeated

(f)

,ection 12 (i) 1ccording to ,ection 12, in order to give evidence the witness must -e ma*or, sane (14il), with sight, Dati4 i e capa-le of speech 1dil and Fuslim

!t is not difficult to imagine here that according to the prescri-ed 4ualifications ver# few persons would -e considered as trust'worth# witnesses, and a ma*or part of the time of the "ourt will -e spent in determining whether a particular witness is 4ualified or not to give evidence rather than in the disposal of the case in hand itself

,imilarl#, in Exception Do'1 to this ,ection, evidence of a minor in the matters relating to -rawls and ph#sical fights will -e accepta-le, provided that&'

(i)

it relates to a minor0

(ii)

it is concerned with causing of in*uries or murder and not relating to an# fiscal matter0

(iii)

the minor witness should -e muslim, sensi-le and not a /nown lier0

(iv)

there should -e more than one minor witnesses and there should also -e no enmit# -etween the witness and the person against whom the evidence is -eing given, nor -etween their respective parents, and

v)

the minor witnesses should have -efore leaving the place of occurrence made two sane ma*or, 1dil and male persons as witnesses a-out the su-*ect matter of their evidence

3he provisions of this ,ection are neither eas# to support nor can convenientl# -e enforced !t is not understanda-le as to how the credi-ilit# of evidence has -een lin/ed with the minorit# or otherwise of the victim !f the evidence of a minor, who fulfills the conditions laid down in Exception Do 1 to ,ection 12, is accepta-le and trust'worth# in case the in*ured person is a minor, it should -e e4uall# admissi-le even though the victim is a ma*or 1gain the conditions laid down for the acceptance of minor?s evidence are such that in ma*orit# of cases of this t#pe the evidence would not -e availa-le for one reason or the other, particularl# due to

the clause relating to minor?s not leaving the place of occurrence without ma/ing two sane ma*or, 1dil and male persons as witnesses a-out the su-*ect matter of their evidence 3hese are unnecessar# provisions and will lead to miscarriage of *ustice as, in ma*orit# of cases, the crimes would go unpunished for want of suita-le witnesses 3his would further cause despondenc# among the common pu-lic and sha/e their confidence in the administration of *ustice

(ii)

1ccording to Exception Do 2 to ,ection 12 it ma# not -e necessar# for a witness

to -e with sight if he is testif#ing in respect of matters a-out which hearsa# evidence is permissi-le, or in respect of matters relating to lineage, death, marriage, penetration (coha-ition with wife), *urisdiction of the +aAi etc

(iii)

1ccording to Exception Do 2, the evidence of a dum- person, in cases other

than >adood and +isas, will -e accepta-le onl# if he writes it down in his own hand in the "ourt 3his provision excludes evidence given -# a dum- person -# signs We feel that there is a-solutel# no reason wh# a dum- person should not -e permitted to give evidence -# signs also as there is no -ar to that effect in +uran and ,unnah

(iv)

1ccording to Exception Do 7, evidence of a non'muslim against a muslim will

-e accepta-le onl# during the course of a *ourne# if no muslim witness is availa-le, and in the matters of will onl# 1 4uestion arises here that if in the matters of will the evidence of a non'muslim is accepta-le, then wh# it should not, in similar circumstance, -e admissi-le in other matters also, for instance, in the matters of monetar# transactions or criminal offences other than those lia-le to >adood and +isas

(g)

,ection 17 1ccording to ,ection 17, negative evidence simpliciter ( not admissi-le 3he word ( ), is

) has neither -een defined nor explained

in the Ordinance, which is li/el# to create difficulties at the time of trial of cases 1ccording to Exception !, however, it is admissi-le if it is -ased on 3awatar i e , testified to -# a large num-er of persons, who are so placed that it cannot reasona-l# -e presumed that the# can *oin together to support a false'hood 1gain Exception Do 2 ma/es negative evidence admissi-le, if it is connected with a condition

!n view of the fact that the -urden of proof lies on a person who ma/es an assertion and not on one who denies it, the provisions of this ,ection are unnecessar#

(h)

,ections 1$'26 1ccording to ,ection 1$, the evidence of father, mother, grand' father, grand'mother, how high so ever, in favour of son, daughter, grand'son, grand'daughter, how low so ever and vice'versa, is not admissi-le, except when it is necessar#, and possi-ilit# of partialit# on the part of the witness can -e eliminated altogether and the disputes relate to marriage, divorce and +isas

!n this section onl# paternal side is covered, -ut nothing has -een mentioned a-out the mother?s side, e g , maternal grand'father, maternal grand'mother, daughter?s children etc , -ecause possi-ilit# of partialit# cannot totall# -e excluded in their cases also, -ut the proposed law is silent in this respect 1gain it will not -e convenientl# possi-le to prove non'partialit# of

such a witness without some sort of *udicial en4uir# which, itself, would lead to prolongation of the proceedings

,imilarl# testimon# of wife in favour of hus-and and vice versa is not accepta-le (,ection 1%) 3he evidence of a friend in favour of another friend, -oth of whom are so intimatel# connected that the# use each others propert# freel#, is not admissi-le (,ection 18)

!n these cases elimination of possi-ilit# of partialit# on the part of a witness, determination of ever# case of free access of friends to each others propert# etc , will need regular en4uiries, consuming a good deal of the "ourts? time and ultimatel# dela#ing the disposal of the main cases and thus one of the main o-*ects in view, i e , speed# disposal of cases will -e defeated

3he a-ove mentioned provisions are not in consonance with the in*unctions of >ol# +uran in this respect, as for example, it is said in the >ol# +uran&'

""onceal not evidence0 <or whoever conceals it0 his heart is tainted with sin 1nd 1llah /nows all that #ou do" (2=282)

"O?#e who -elieve0 ,tand out firml# for *ustice, as witnesses to 1llah0 even as against #ourself or #our parents or #our /in0 and whether it -e (against) rich or poor for 1llah can -est protect -oth" (7=12$)

"Whenever #ou spea/ spea/ *ustl# even if a near relative is concerned0 and fulfil the "ovenant of 1llah& thus doth >e command #ou0 3hat #ou ma# remem-er" (%=1$2)

"1nd cover not truth with false'hood' Dor conceal the 3ruth, when #e /now" (2=72)

3hese sections are in conflict with the tenets of +uran Do legislation can -e allowed to infringe an# in*unction which are contained in the 1#ats mentioned a-ove

(i)

"hapter %, ,ections 21 to 28

1ccording to ,ection 21 proceedings regarding 3aA/iat'ul',hahud will -e ta/en in hand -# the "ourt after recording the evidence of the witnesses concerned and according to ,ections 22 and 22, 3aA/iat'ul',hahud will -e indispensa-le in cases relating to >adood and +isas, -ut in all other matters, whether civil or criminal, it will -e resorted to onl# when the opposite part# demands it, i e , the defendant in a civil case or the accused in a criminal case

3he stage for 3aA/iat'ul',hahud, i e , after recording the evidence of the witnesses concerned, does not seem to -e a ver# appropriate one -ecause in the event of a particular witness -eing reported as non'1dil, the "ourts? time spent in recording his evidence previousl# would have -een wasted

!t is also not difficult to imagine that a respondent in a civil case or an accused person in a criminal case would invaria-l# insist on 3aA/iat'ul',hahud particularl# in the event of a witness deposing against him or with the sole purpose of prolonging the proceedings, if not for an# other reason <or the purposes of 3aA/ia the "ourt will have to hold en4uiries in respect of the witnesses from the FuAa//is and in certain cases even in respect of FuAa//is also, (,ection 28)

1ccording to ,ections 2% and 25 3aA/ia can -e done in two wa#s, i e ,(a) 1lania 3aA/iat'ul',hahud and (-) Bhufia 3aA/iat'ul',hahud !n the former case the "ourt will send for two persons /nown as FuAa//i, in its discretion, and will en4uire from them whether the witness is 1dil or non'1dil, in the presence of the parties, while in the latter

case the en4uir# will -e secret and FuAa//i will express his opinion a-out the relia-ilit# or otherwise of the witness without mentioning an# instance in support of his opinion

"hapter G! on 3aA/iat'ul',hahud has no @sanction either in the >ol# +uran or in the ,unnah of the >ol# .rophet (. : H >) 3here is no instance during the life time of the >ol# .rophet that 3aA/iat'ul',hahud was ever done either -efore or after the testimon# of a witness Even !mam 1Aam disapproved such a practice 3he provisions of this "hapter will also dela# the disposal of cases as it tends to provide for an en4uir# within an en4uir# -oth with regard to the witnesses as well FuAa//is

!n the present Evidence 1ct the provisions of cross'examination of the witness provide sufficient means to exclude the testimon# of a witness on grounds mentioned in this "hapter 3he en4uir# as to credi-ilit# of a witness is ta/en simultaneousl# -# the "ourt during the trial of cases -efore it (*) "hapter'5, ,ections 29 and 26 3hese sections relate to evaluation, and appraisal of evidence in case of difference -etween the witnesses 3his is essentiall# a matter for the *udge to decide as proof, in the last anal#sis, is the impression created on the mind of the *udge as a result of evaluation of evidence !n our view, therefore, these sections will unnecessaril# over reach the powers of the "ourt in the matter of the appraisal of evidence

(/)

"hapter'8, ,ections 21 to 27, ;a*u'1ni',hahadah

,ection 21 3his "hapter contains provisions with regard to retraction of his evidence -# a witness 1ccording to ,ection 21, after the recording of the evidence and -efore the announcement of the *udgment, a witness ma# resile from his statement -efore the "ourt and,

,ection 22 (1) according to his evidence will -e excluded from the record of the case -ut

under ,u-',ection (2), i-id, in the event of retraction, the "ourt ma# award to such a witness a sentence of imprisonment for two #ears, or 59 stripes, or announcement in the media a-out his -eing a liar, which includes ma/ing him ride an ass and ta/ing him around in the localit# of his residence and the place of -usiness& or an announcement to that effect on the television and radio >e can -e awarded all the three proposed sentences together or one or two of them, as the "ourt deems fit 3he illustration of this ,u-'section a-out ma/ing such a witness ride an ass to ta/e him around, declaring him to -e a liar, is insupporta-le

,ection 22 1ccording to ,ection 22, if a witness retracts his statement after the

announcement of *udgment, it will not affect the decision of the "ourt -ut the witness will -e lia-le to certain penalties in addition to punishment prescri-ed in ,ection 26(2),e g &'

(i)

pa#ment of Caman ("ompensation) to the person who suffered on account of his evidence,

(ii)

in the event of execution of +isas or >add ,ar4a the witness will -e lia-le to pa# Ci#at or Hrsh and in case of >add ,ar4a, the mar/et price of the stolen goods also, and

(iii)

in the cases of +atl'e',hu-hul'1mad, +atl'e'Bhata or +atl :il',a-uhe will -e lia-le to pa# Ci#at etc

Ci#at or Hrsh will -e pa#a-le within a maximum period of three #ears and the witness will not -e lia-le to an# other penalt#

3he provisions of ,ection 22(1), that retraction of evidence -# a witness after the *udgment will not affect the "ourts? decision is in conflict with the su-stantive law as enunciated in >adood Ordinance where the >add falls in all cases of retraction of evidence if the remaining witnesses fall short of the re4uired num-er

3he provisions of this "hapter indicate the intention that, whosoever gives false evidence should -e properl# punished ,uita-le provisions with regard to punishment for false evidence have -een included in the su-stantive .enal 1ct, and if the

8overnment intend to amend those provisions, it will -e open to them to do so, -ut we see no *ustification for having such a provision in the draft Ordinance relating to Evidence 3he penalties mentioned in these sections have not -een provided for either in the >ol# +uran or ,unnah -ut were enforced su-se4uentl#

(l)

"hapter 9, ,ections 2$'25

3his "hapter relates to 3awatur, according to which evidence would -e admissi-le if it is testified to -# a ver# large num-er of persons, who are so placed that it cannot reasona-l# -e presumed that the# have *oined together to support a false'hood Do evidence will -e

admissi-le against 3awatur nor will 3aA/ia -e necessar# in these cases

3his "hapter o-viousl# relates to the proof of custom i e , riwa*, usage or tenets and not to an# particular /ind of disputes or to a lis -etween the parties ,ections 78 and 79 of the existing Evidence 1ct sufficientl# provide for such matters 3hese provisions, therefore, appear to -e unnecessar#

(m)

"hapter'16, ,ections 28 to 77 ,hahadat'ala',hahadat, i e , evidence -# prox# 1ccording to the provisions of this

"hapter, evidence -# prox# or through an agent or representative is admissi-le except in the cases of >adood and +isas (,ection 29) 1ccording to ,ection 76, for each original witness, there shall -e two male or one male and two female prox# witnesses

3hese sections introduce the principle of agenc# in the matter of giving evidence 1 person who is dead, or una-le to attend the "ourt -ecause of illness or is a prisoner in a foreign "ountr# can -e represented -# two witnesses to conve# his oral evidence to the "ourt 3his is a categor# of hearsa# evidence which will create pro-lems and difficulties for the "ourt in the matter of evaluation of evidence :esides, in the a-sence of the real witnesses, cross'

examination of the witnesses will not -e possi-le and thus falsehood is li/el# to creep in 1s against this, sections 22 and 22 of the Evidence 1ct, 1852, are ver# comprehensive and

exhaustive and are hedged in with conditions which minimise the chances of false evidence -eing -rought -efore the "ourt, and full# meet the o-*ective desired to -e achieved in this "hapter 3he provisions of those ,ections do not, in an# manner, militate against the

in*unctions of +uran and ,unnah

(n)

"hapter 11, ,ections 7$ to $2 3his "hapter relates to the production of documentar# evidence 1ccording to ,ection

78, at least two witnesses out of those whose signatures purport to have -een made in the margin of a particular document will -e re4uired to testif# to the genuineness of that document !n the a-sence of marginal witnesses the evidence of two persons, who recognise the writing and signatures on the document, will -e re4uired and, alternativel#, the document shall -e examined -# two experts for this purpose !n the event of the document -eing declared to -e genuine the executant of the document shall -e -ound to discharge the lia-ilit# created therein, even though he denies its genuineness

!f the genuineness of the document is not proved -# the a-ove mentioned methods the person den#ing the writing and execution of the document shall -e given oath and, in the event of his refusal to do so, shall -e -ound -# the terms of the document

3he provisions of the existing Evidence 1ct provide a much -etter and comprehensive mode to prove the execution, production and proof of documents !t provides for primar# and secondar# evidence in this respect, a-out exclusion of oral evidence -# documentar# evidence and presumptions as to the genuineness of certain documents 3he proposed provisions in the draft Ordinance are neither comprehensive nor exhaustive

(o)

"hapter'12, ,ections $7'%$ other means E methods of proof

,ection $7 1ccording to ,ection $7 the methods of proof are +rain'e'+atia, oath or refusal to ta/e oath and !4rar 1ccording to ,ection $$, +rain'e'+atia mean, those clear and apparent circumstances which attain the degree of certaint#

3he illustration appended

to this section, however, does not clearl# indicate the

intention -ehind this provision, i e , whether it amounts to existence of a strong piece of circumstantial evidence or a conclusive proof against the accused !t is possi-le that

circumstances might have existed for raising the plea of self'defence as in ,afdar 1li?s case I.LC 19$2 < " 92J

,ection $% 1ccording to ,u-',ection (2) of ,ection $%, a person ta/ing oath will have to do so in the name of 1llah or other names -ased on >is different manifestations !t has -een further explained that the manner of oath will -e the same in case of muslims as well as non'muslims

>ere an omission has -een made in respect of administration of oath to atheists a-out whom the provision of "solemn affirmation" exists in the relevant law

,ections %1'%2 !n this "hapter (,ections %1 to %2) administration of oath to the defendant or the accused has -een made conditional with adam'i',a-oot i e , lac/ of proof

!t is not,however, clear whether an oath is to -e administered in those cases where no evidence at all is forthcoming or where the plaintiff or the prosecution fails to esta-lish the case against the defendant or the accused -e#ond all reasona-le dou-ts 3his point needs clarification

1ccording to ,ection %1(2),in the case of an intentional murder, (

), if the

accused refuses to ta/e oath, he will not -e su-*ected to +isas, -ut will remain in prison till either he ta/es the oath or admits having committed the offence, while in other cases of murder, e g , +atle Bhata etc (,ection %1(2), he will -e re4uired to pa# Ci#at -ut, in similar circumstances, in the event of chopping of a lim- su-*ect to +isas, according to ,ection %2(2), the accused will -e lia-le to +isas

3hese two provisions are not uniform though circumstances in -oth cases are identical and no reason has -een mentioned for this lac/ of uniformit# in the two provisions

,ection %2 !n ,ection %2, in cases of 3aaAir, the accused will -e lia-le to punishment if he refuses to ta/e oath -ut in the case of 3aaAir on the ground of >a4 1llah, i e , rights of 1llah, the accused will not -e administered an# oath 3he term ">a4'1llah" has neither -een defined nor explained, -ut pro-a-l# it means >adood

,ection %7 1ccording to ,ection %7, !4rar has -een defined as an admission on the part of a person that he owes an o-ligation to another person

!t is not, however, clear whether the term !4rar would include a confession, either *udicial or extra'*udicial 3his point needs clarification

,ection %$ 1gain according to ,ection %$, an !4rar made under coercion will not -e admissi-le nor an admission made in the state of intoxication -e accepta-le in cases relating to >adood

3his provision is neither self'contained nor exhaustive as it does not mention a-out the confessions or admissions made to .olice Officers, while the accused is in their custod#, or made under a promise of secrec#, or in conse4uence of a deception practised on the accused, or made in answer to 4uestions which he need not have answered, or -ecause he was not warned that he was not -ound to ma/e such confession 1ll confessions of this /ind should -e inadmissi-le in the case of >adood !t has -een recommended -# the .a/istan Law

"ommission that the provisions of ,ection 29 of the Evidence 1ct, according to which confessions otherwise relevant, would not -ecome irrelevant on the a-ove mentioned grounds, should not -e applica-le to the trial of cases under the laws relating to >adood (p) "hapter 12, ,ection %% 3his section la#s down certain principles with regard to decision of disputes in respect of ownership of immova-le propert#

!t drasticall# curtails the "ourts? *urisdiction to arrive at a decision after examining the whole case and appraising the evidence produced -# -oth sides !t la#s down certain -inding principles which, if strictl# adhered to, are -ound to lead to a miscarriage of *ustice in ma*orit# of cases 3his "hapter should either -e deleted from the draft Ordinance or thoroughl# re' examined and redrafted (4) "hapter 17 .reference among the :a##ana

,ection %5 3he same o-*ection as to the preceding "hapter, applies with greater force to this "hapter also, e g , ,ection %5(1) sa#s that if two parties are *ointl# in possession of an# mova-le or immova-le propert# and one claims to -e a solitar# owner thereof and the other alleges *oint ownership and -oth have :a##ana, also0 the :a##ana of the former will -e preferred

!t is extremel# difficult to find an# support for the guide line laid down in this section

,ection %8 ,imilarl# provisions of ,ection %8 relating to Fil/'i'Futli4 wherein the :a##ana of a person not in possession will -e preferred to that of one who is in possession and a similar provision in respect of Fil/'i'Fu4a##ad in ,ection %9 is not understanda-le and its illustration has made it all the more complicated and difficult to enforce

(r)

"hapter'1%, ,ection 59

Experts? Evidence 1ccording to ,ection 59,,u-',ection(2) it is necessar# that there should -e at least two experts to give evidence in respect of a particular matter -ut, in the event of their non' availa-ilit# one would also do

3his provision will lead to complications as in each and ever# case relating to rape, murder and other -odil# in*uries etc , the "ourt will have to see/ opinion of, and call upon, at least two experts to give evidence in the "ourt 1gain, in the event of difference -etween the two experts, evidence of the third expert will -e re4uired 3hese provisions will definitel#, unnecessaril# and undul# prolong the "ourts? proceedings causing dela# in the final disposal of cases (s) "hapter'15, ,ections 86 to 87 1ccording to ,ection 86, the "ourt will decide, in its discretion, whether or not a particular piece of evidence is admissi-le 3he "ourt will also have the power to call upon the person producing the evidence to explain how that piece of evidence would -e relevant to the matter in dispute 3he state of the trial at which such a decision is to -e ta/en -# the "ourt has not, however, -een indicated in this ,ection

,ection 82 1ccording to Exception to ,ection 82, if there are two women witnesses, their statements shall -e recorded simultaneousl# 3his provision is impractica-le as two female

witnesses cannot -e examined simultaneousl# 1ccordingl# Cr 9ustice 3anAil'ur';ahman suggested that the Exception to ,ection 82 should have -een worded as under&'

,ection 82 1ccording to ,ection 82, while interpreting and appl#ing the provisions of the proposed Ordinance, the "ourt shall see/ guidance from +uran, ,unnah and other "standard sources of ,haria" ,imilarl# those matters to which an# provision of this Ordinance does not appl#, shall -e decided according to ,haria

3hese terms are ver# wide and in the a-sence of an# specific guide line in that regard, the interpretation and decision according to ,haria ma# differ from "ourt to "ourt according to the capacit# and understanding of each .residing Officer 1gain, there ma# -e different decisions in respect of a similar matter in identical circumstances according to interpretation made -# the "ourts in the light of different <i4ahs

1$

<rom the a-ove examination it would -e clear that the draft law is not exhaustive or self'

contained and does not cover man# matters which relate to our ever# da# life and which cannot, without serious detriment, -e lost sight of 3his "ommission is of the view that while enacting a new law or amending an# existing law, -esides compl#ing with the in*unctions of the >ol# +uran and ,unnah, the principles laid down -# the old *urists should also -e /ept in view ta/ing maximum advantage thereof, -ut the economic and the social conditions of the ,ociet#, the people?s ha-its and -ehaviour too, should -e carefull# considered and catered for

1%

3he proposed draft Ordinance is mainl# -ased on the provisions of <i4ah'i'>anafi

which was in vogue some centuries ago and it is now intended to -e applied to the existing Fuslim ,ociet# without ta/ing into consideration the changed circumstances !t also contains a large num-er of provisions with regard to ancillar# proceedings which are -ound to cause inordinate dela# in the disposal of main cases and ultimatel# frustrate the o-*ect of the 8overnment, i e , speed# administration of *ustice 1gain there are a num-er of provisions relating to matters which should have -een left to the discretion of the "ourt, without prescri-ing rigid guidelines for that purpose, thus giving the +aAis opportunit# of examining the evidence, as a whole, and arriving at a well considered decision after ta/ing into account all the pros and cons of the case -efore them ,imilarl#, there are a num-er of principles laid down in the draft which would -e difficult to follow during the present times 3his is evident from the notes of dissent appended to the draft Ordinance

15

1ccording to ,h 8hias Fuhammad, a Fem-er of the "ouncil of !slamic !deolog#,

promulgation of the proposed Law of Evidence would create complications and difficulties in the trial of cases >e suggests that suita-le additions and amendments ma# -e made in the Evidence 1ct, 1852, in order to ma/e it suita-le for the existing legal re4uirements of our ,ociet# as well as to -ring it in accord with the in*unctions of +uran and ,unnah 1nother Fem-er of the "ouncil, Fr 1-dul Fali/ !rfani, is of the view that evidence of women is admissi-le in all cases including >adood and +isas 1ccording to 1llama 3ali- 9auhari, a Fem-er of the "ouncil, the evidence of women is inadmissi-le, -esides the cases relating to >adood and +isas, in the matters of divorce, /hula, inheritance etc , also 1gain, according to 1llama 9auhari, the proposed !slamic Law of Evidence contains provisions which are against the views expressed in <igah'i'9afria and he suggests that to each and ever# section of the

proposed law, the view point of <i4ah'i'9afria should -e added 1gain, as stated earlier, the exclusion of the evidence of minors, who ma# otherwise -e mentall# mature and capa-le of -eing truthful witnesses, will lead to mis'carriage of *ustice in a large num-er of cases, -oth civil and criminal

18 that&'

!n order to avoid all controvers# on the -asic issues the "ommission is of the view

(a)

3he proposed draft Ordinance should not -e enforced, in its present form, as after the existing Evidence 1ct is repealed the proposed Ordinance will not -e a-le to cater for all the legal re4uirements of the "ountr# and, -esides inordinatel# dela#ing the "ourts proceedings, will -ring a-out a stage of stand still in the Law "ourts !t will undou-tedl# defeat the o-*ective of the 8overnment with regard to inexpensive and speed# administration of *ustice and add to the existing heav# load of *udicial wor/ in the "ourts of the "ountr# at all levels, thus causing frustration to the pu-lic at large

(-)

3he existing Evidence 1ct, 1852, should, after carr#ing out the amendments proposed -# this "ommission in its report dated the 2rd 9anuar#, 1982, remain in force

(c)

3he provisions in the proposed draft Ordinance relating to the cases of >adood and +isas and Disa-'i',hahadat in civil cases, as laid down in the >ol# +uran and ,unnah, should -e incorporated in the su-stantive laws concerned .a/istan Law "ommission has alread# recommended a suita-le amendment in ,ection 127 of the Evidence 1ct, 1852, for this purpose