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Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at

07:12:05 PM

Course Contents:

1.The QanuneShahadat Order, 1984 (X of 1984) (Evidence Law) as amended upto date.

Books Recommended:

1.The QanuneShahadat by Professor Dr. Chaudhary Muhammad Hanif.

2.The QanuneShahadat by Muhammad Iqbal.

3.QanuneShahadat 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 law deals 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 QanuneShahadat 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 QanuneShahadat 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 crossexamination 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 objects 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. A dispute arises between shopkeeper and C. A cannot deny the truth being B as owner
of the shop. Burden or onus of proof (PJQiBI) 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 crossexamination. Leading questions (pursuance
during the proceeding) are not permissible. Court also examines the credibility of witness. Arguments and
crossexaminations 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.Quasijudicial proceedings: It is also applicable in all quasijudicial 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.

Nonapplication 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 quasijudicial powers. Statement is not termed as evidence as it is not taken under the QanuneShahdat
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 bailable 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 nonexistence 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 rebutable. 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 representativeininterest 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 (AjUefY). Hudood crimes are those, which are, declared crimes in Quran expressly and
their punishment has been fixed under Quran. They are not compoundable. 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 alshuhood (erAlM), 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 Qanune
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 of not 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 QanuneShahadat 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 cattleshed 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 window 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.

Extrajudicial 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 extrajudicial 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.
Extrajudicial 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 extrajudicial 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 extrajudicial but also irrelevant and
not liable to use against accused.

Some time a person makes confession for temporal (secular, nonspiritual) 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 coaccused 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 crossexamination Article 44: All accuseds are liable to crossexamination. 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 weightage 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:

ShahadahalaShahadah (eBrAeBq): 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 ShahadahalaShahadah (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 truthness.
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, tonguetied, 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.Crossexamination: In second instance, test which court applies is crossexamination. If crossexaminer 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 crossexamination 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 ShahadahalaShahadah (eBrAeBq) 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 crossexamined 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 crossexamining 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 nonappearance 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 window. 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 crossexamination: Right of crossexamination was provided to adverse party.
They also had opportunity to crossexamine. 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, prescriptions, tolls,
boundaries between parishes (district), counties, or manors (large house), rights of ferry, liabilities to repair
roads, or seawalls, 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 way, is relevant, but it is not conclusive proof that the right
of way exists.

Judgement other than in rem, public right, and previous Article 57: Where previous judgement, judgement in
rem, and judgement of public right itself comes under litigation as fact in issue then they become relevant.

The cases contemplated by this Article are those where a judgement is used not as res judicata or as evidence
more or less binding upon opponent by reason of the adjudication which it contains, because judgements of
that kind had already been dealt with under one or other of the immediately precedent Articles. But the cases
referred to in this Article are such as the Article itself illustrates viz., when the fact of any particular judgement
having been given is a matter to be proved in the case. As, for instance, if A sued B for slander, in saying that A
had been convicted of forgery, and B justifies upon the ground that they alleged slander was true, the
conviction of A for forgery would be a fact to be proved by B like any other fact in the case, quite irrespective of
whether A had been actually guilty of the forgery or not.

A judgement recovered against a surety will be evidence for him to prove the amount which he has been
compelled to pay for the principal debtor but it furnishes no proof whatever of his having been legally liable to
pay that amount through the principals default.

If A gets a decree for the possession of land against X and Y, and Xs son murders A in consequence thereof, the
existence of the judgement is relevant as showing the motive for the murder.

Fraud or collusion in obtaining judgement Article 58: If judgement, which is in rem, i.e., relevant and
conclusive proof against other parties is obtained by way of fraud or collusion (conspiracy) can be challenged
on such grounds. Incompetence of court in above cases can also be challenged.

For example, probate has to issue by District Judge and not by Magistrate. If issued by Magistrate, can be
challenged.

Where a child is killed in road accident and an irrelevant person by impersonation shows himself his father
and remits the guilty person for his acquittance, can be challenged.

Relevancy of third partys opinion Article 59: There are certain things which alone court cannot ascertain.
Court needs help of expertise. Court may need expert opinion in following cases:

1.Foreign law. 2.Science.

3.Art. 4.Identification of handwriting.

5.Finger impression.

Persons who help in such matters are termed as experts. Court forms its opinion with the help of expertise.
Their opinion is relevant.
As a general rule a witness is allowed to speak such facts only as are within his personal knowledge, i.e., which
he has seen or heard or otherwise perceived with his senses. His opinion or belief as to the existence or non
existence of a particular fact is irrelevant because that is within the exclusive knowledge of the court or the jury,
who are to form their own opinions from the facts placed before them by witnesses. Sometimes, however, cases
come up in courts, which involve matters that are beyond the range of common experience or common
knowledge. In those cases, to assist the court in coming to a correct conclusion, the opinion of those who have
had training or experience and are consequently experts on the particular matters are allowed to be given.
Expert opinion is relevant and admissible merely to aid the court forming its opinion. The court can come to its
own conclusion independently of experts opinion.

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

The question is whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable
of knowing the nature of the act, or that he was doing what was either wrong or contrary to Law. The opinion
of experts upto the question whether the symptoms exhibited by A commonly show unsoundness of mind, and
whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which
they do, or of knowing that what they do is either wrong or contrary to Law, are relevant.

The question is, whether a certain document was written by A. Another document is produced which is proved
or admitted to have been written by A.

The opinion of experts on the question whether the two documents were written by the same person or by
different persons is relevant.

Competency of varied opinion Article 60: Where opinion of expert is challenged or rebutted remains relevant
until disproved. When the opinion of an expert is relevant, any fact which supports or is inconsistent with that
opinion cases bearing similarity to the case under enquiry, in order to support his opinion. Similarly, evidence
of other facts, which though not themselves relevant to the issue but which are inconsistent with the opinion of
the expert, may be given in rebuttal. The opinion of an expert is open to corroboration or rebuttal.

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

Opinion as to handwriting when relevant Article 61: Persons who is acquainted (familiar, conversant) with
other person, his opinion is relevant where matters is concerned with his handwriting. Statement of manager is
relevant with regard to evidence against his stenographer. Close friend or immediate senior can easily identify
the handwriting of their related persons. They have seen their handwriting in normal circumstances. Two
persons who are interconnected with each other and exchange their documents for regular course of business
know eachothers writing. Where person is aware of other, his opinion becomes relevant.

Comparison of signature by court Article 84: Where court is in doubt about the signature may order such
person to put his signature before court and court may compare itself the signature. Court may also compare
finger impressions.

The court may direct any person present in court to write any words or figures for the purpose of enabling the
court to compare the words or figures so written with any words or fingers alleged to have been written by
such person.

The court may compare the disputed signature, writing, or seal of a person with signatures, writings, or seals
which have been admitted or proved to the satisfaction of the court to have been made or written by that
person. A court may rely upon its own comparison of the signature, writing, or seal, unaided by expert
evidence.
There are various admissible ways of proving handwriting. Thus it may be proved:

1.By the testimony of an expert (Article 59).

2.By the person who wrote or signed the document in question.

3.By a witness who actually saw the party writing or to sign the document in question.

4.By the testimony of a person who is acquainted with the handwriting of the writer (Article 61).

Law of evidence provides another mode of proving the document, i.e., by direct comparison of the disputed
signature or writing with the one, which is admittedly genuine or proved to be so. The court is also entitled to
make independent comparison of handwriting apart from opinion of expert.

If a person whose handwriting is in question is present in court, he may be asked to write something for the
purpose of comparison with the writing, which is alleged he has written.

Law authorizes court to order any person to allow his Finger Impression to be taken for the purposes of any
investigation or proceeding under the Code of Criminal Procedure provided that such person has at some time
been arrested in connection with such investigation or proceeding.

In applying the provisions of the law on this topic, it is important not to lose sight of its exact terms. It does not
sanction the comparison of any true documents but requires that the writing with which the comparison is to
be made or the standard writing as it may be called, shall be admitted or proved to have been written by the
person to whom it is attributed and next the writing to be compared with the tendered or, in other words, the
disputed writing must purport to have been written by the same person, that is to say, the writing itself must
state or indicate that it was written by that person.

Opinion as to existence of right or custom, when relevant Article 62: Where court has to ascertain the opinion
about the existence of any general custom or right, the evidence of the person who is likely to know the
particular custom or right is relevant. Evidence of Headman of village is relevant in such cases. This method is
applicable in the ascertainment of general custom or class of persons and not public. Public means entire
Pakistan whereas general custom means particular class of person.

The right of the dwellers of a particular village to use the water of a particular Well is a general right within the
meaning of this Article.

Opinions of persons who are in a position to know of the existence of a custom or usage in their locality are
admissible. For example, a person, who had been in the habit of writing out deeds of sale, or one who had been
seeing transfers frequently made, would certainly be in a position to give his opinion whether there was a
custom or usage in that particular locality. Opinion of such person would be admissible.

When a custom has been repeatedly brought to the notice of the courts and has been recognized by them
regularly in a series of a case, it attains the force of law.

The law provides another exception to the general rule that opinions of witnesses are not admissible in proof of
facts. Law states that where any question of custom or right is to be decided, opinions of person who are likely
to know of it, are admissible.

Law makes relevant opinion as to the existence of any general custom or right, of those persons who would be
in a position to know of the existence of such custom or right if it did exist.

The law does not necessarily require that the person stating his opinion should have personal knowledge of the
existence of the right or custom. He will be qualified to state his opinion if he is in a position to know of the
existence of the custom or usage in question in his locality.
The opinions of person likely to know about village rights to pasturage, to use of paths, watercourses, or
ferries, to collect fuel, to use tanks and bathing ghats, mercantile usages, and local customs would be relevant
under this Article.

Tribal or family custom as to inheritance, when in issue, the evidence of members of family or tribe is relevant.
However, it is not necessary that specified instances should be cited.

According to law the opinion of only those person is relevant who are likely to know of the existence of any
general custom or right. Such persons should be residents of the locality.

Opinion as to usages, tenets, etc., when relevant Article 63: Under law opinion of witnesses is admissible on
the following matters:

1. Usages of any body of men, e.g., usages of trade and agriculture, mercantile usages, or any other usages
common to a body of men.

2.Usages of a family, e.g., custom of primogeniture (heritage, legacy, patrimony).

3. Tenets of any body of men. This includes opinion, principle, dogma or doctrine, which is held or
maintained as truth. It will apply to religion, politics, science, etc.

4.The constitution and government of any religious or charitable foundation.

5.Meaning of words and terms used in particular districts or by particular classes.

The opinion, in order to be admissible under law must be that of a person having special means of knowledge.
The opinion may be based on knowledge or information derived from statements of deceased persons.

It is, of course, not the opinion of every person that is made relevant under law. The person whose opinion is
declared to be a relevant fact by this law are those who have means of special knowledge of the matters given
under law. In this way the opinion of the members of a family as to the usages of that family is relevant as the
opinion of those person who had special means of knowledge about the usages of that family.

Opinion on relationship when relevant Article 64: Three ways establish relationship, i.e., blood, marriage, and
adoption. Where court has to ascertain the relationship between two persons, opinion of the person having
special knowledge by way conduct or otherwise know whether they have been living being husband and wife
is relevant. This way of ascertainment is applicable only in the cases where person has been died and
inheritance cases etc.

Special knowledge becomes irrelevant where divorce or criminal proceedings are being conducted. Remarriage
during the lifetime of other partner is prohibited and punishable u/s 494 of Pakistan Penal Code.

1.Kinds of relationship: s

a)Blood: s

b)Marriage: s

c)Adoption: s

2.Qualities: s

a)Personal knowledge: s

b)Seen marriage: s
c)Attended wedding ceremony: s

d)Attended sons birthday: s

3.Administrator of Will: s

4.Witness in deed: Transfer of right.

5.Presence during transaction: Like marriage, adoption, or engagement.

Grounds of opinion when relevant Article 65: Where the opinion of an expert is receivable, the grounds or
reasoning upon which such opinion is based may also be inquired into. Opinion is no evidence without
assigning the reason for such opinion.

In civil cases character to prove conduct imputed irrelevant Article 66: Character of the witnesses in both
criminal and civil cases can be taken into consideration. As far as civil cases are concerned personal character of
party is irrelevant. But in criminal cases personal character of the party is relevant.

Where itself character is under proceeding directly then personal character becomes relevant. Piousness of the
party is not taken into consideration. They have to produce evidence on the matter under litigation.

In respect of the character of a party, two distinctions must be drawn, namely, between the case when the
character is in issue and is not in issue and when the case is civil or criminal. When a partys general character
is itself in issue, whether in a civil or criminal proceeding, proof must necessarily be received of what the
general character is or is not. But when general character is not in issue but is tendered in support of some
other issue it is, as a general rule, excluded.

In criminal cases previous good character relevant Article 67: Good character of accused in criminal case is
relevant. The principle upon which good character may be proved is that it affords a presumption against the
commission of crime. This presumption arises from the improbability, as a general rule as proved by common
observation and experience, that a man who has uniformly pursued an honest and upright course of conduct
will depart from it and do an act so inconsistent with it.

The accused, therefore, is always at liberty to adduce evidence of his good character as tending to disprove his
commission of the offence. But if the offence charged against the accused is clearly established the evidence of
good character will not be of much avail to him.

Meaning of character: According to Oxford dictionary the term character means, collective peculiarities or
persons mental and moral qualities.

Definition of character: According to Websters dictionary, character is a combination of the peculiar


qualities impressed by nature or by habit of the person, which distinguish him from others.

Previous bad character not relevant, except in reply Article 68: Articles 67 and 68 should be read together.
This law does not apply to cases in which the bad character of any person is itself a fact in issue. A previous
conviction is relevant as evidence of bad character. Evidence of previous conviction is relevant as evidence of
bad character according to law.

The rule embodied in this Article is found on the reason that such evidence tends to prejudice the tribunal
against the accused and interferes with the formation of a calm and dispassionate (fair, impartial, neutral,
judicial) judgement of the case.

Evidence of bad character of an accused person (of whose good character, evidence has been given) is not
relevant under law for he purpose of raising a general inference that the accused is likely to have committed
the offence charged.
Such evidence is irrelevant and cannot be legally admitted in evidence whether elicited (obtain, summon, gain)
by prosecution or by the defence. Where accused is caught red handed, there good character becomes
irrelevant. Prosecution cannot advance bad character in arguments. It is open only where accused gives
evidence of his good character.

As a general rule, it is not competent for the prosecution to show in the first instance that the accused bears a
bad character. Where, however, the accused given evidence of his good character, it will be then open to the
prosecution to show that he is of bad character. In other words, evidence of bad character of the accused is
admissible only in disproof of the evidence of his good character.

Character of affecting damages Article 69: In civil litigation where character affects the amount of damages, it
becomes relevant. It is in civil cases, where the question amount of damages to be awarded to the plaintiff is
concerned, that the character of the plaintiff becomes relevant.

In civil cases good character, being presumed, may not be proved in aggravation of damages, but bad character
is admissible in mitigation of damages, provided that it would not, if pleaded, amount to a justification. For
instance, in cases of defamation the general bad reputation of the plaintiff may be proved. In cases of breach of
promise of marriage the plaintiffs general character for immorality is relevant. In cases of reduction evidence
of the general character for immorality on the part of the person is relevant. The argument in favour of
considering reputation is that the person should not be paid for the loss of that which he never had.

According to the law, evidence can be given only of general reputation and general disposition and not of
particular acts by which such reputation or disposition is shown.

Where the character of a person affects the amount of damages, such character is a part of the issue. Where A
sues B for defamation, and the issue is as to the proper amount of compensating the question arises whether it
is fair to measure his compensation by the quality of an original actual standing in the community, and, in
particular, whether the fact that he had little or no reputation to loose may be considered as good reason for
diminishing the damages accordingly.

Character evidence of the daughter is admissible in an action for seduction brought by the father for her
disgrace to the father must naturally be less or lacking if the daughter is already of bad reputation for chastity
her previous bad reputation may, therefore, be show. The fathers own reputation is immaterial in such a case.

In actions for malicious prosecution, the defendant may show the general bad reputation of the plaintiff as
known to him when he launched the prosecution.

Proof of contents of documents Article 72: Contents of documents should be proved either they are direct or
indirect. This proof should be upto the satisfaction of court. Where court does not satisfy, proof shall remain
unacceptable and judgement shall remain in pipeline. It may be proved by oral or documentary evidence, but
where documentary proof is available, it excludes oral evidence. Oral evidence comes later where documentary
proof becomes impossible. Where both evidences are available, as a general rule, documentary evidence
excludes oral evidence.

Where the contents of document are to be proved, the general rule is that these must be proved by the
production of the original document or what in other words is known primary evidence. Where, however,
the original cannot be obtained, e.g., where it is lost or destroyed due to any certain or uncertain reason, there
the secondary evidence, e.g., a copy of it or an oral account of its contents may be adduced.

It is clear that contents of document must be proved by primary evidence unless secondary evidence is
declared admissible under circumstances which law accepts.

The term primary and secondary evidence, are mainly of importance in connection with documents though the
term primary evidence is also, but rarely, applied to oral evidence of which direct evidence is said to be
primary.
Primary evidence Article 73: Article 73 says that as far as primary evidence is concerned, document itself
constitutes it on which the dispute arisen.

This Article defines primary evidence, which means the document itself produced for the inspection of the
court. The fundamental notion of producing the primary evidence that the terms of writing must be proved by
producing it and not by offering testimony about it. When the writing constituting a bilateral transaction is
executed by the parties in duplicate or multiplicity, each of these parts is the writing, because by act of the
parties each is as much the legal act as another. It can make no difference that one party has signed on the
document, taken by the other, except where it is desired to prove specifically the signature.

In the case of counterparts, each document is fully executed by that party. Execution in counterparts is a
method of execution adopted when there are two parties to the transaction. Only that is to be bound by it and
that party delivers it to the other party. Thus if the transaction is a contract between A and B, the document is
copied out twice and A alone signs one document while B alone signs that other.

Where a document is executed in parts, i.e., each party prepares document on the stamp paper of the similar
value and signs it shall constitute the original document admissible for evidence. The expressions executed in
several parts and in counterparts refer to the mode in which documents are sometimes executed. It is
necessary to execute a document in several parts when each party to a transaction wants to have a complete
document in his own possession. To effect this, the document is written as many time over as there are parties
and each document is executed, i.e., sealed and signed, as the case may be, by all the parties and then each
party retains one document thus executed.

There is a far better guarantee for a number of printed paper struck off from the same machine at the same time
being correct facsimiles of each other, than of a number of written paper, for here the draftsman or draftsmen
may introduces differences impossible with the machine. In this case, each machine made copy is accepted as
primary evidence of all the other, inter se. For instance, if it is desired to prove the publication of libel in a
newspaper and copy of the issue in which the libel appears would be primary evidence of publication in all the
other copies of that issue. Thus, printed, lithographic, photographic, and other reproductions made by one
uniform process are primary evidence of each other. But if, in the circumstances of a particular case, the
original not a reproduction but the document from which the reproduction was made, the reproduction would
be merely secondary evidence of the original.

Secondary evidence Article 74: Where court accounts for a party and party advances reason for the lost or
damage of primary evidence, the secondary evidence shall be admissible. Original document may be brunt,
lost, stolen, or in the possession of opponent or adverse party and cannot be produced in court as primary
evidence.

Law says that primary evidence is the best evidence obtainable, i.e., the statement of an eyewitness or an
original document. This Article defines secondary evidence. The secondary evidence as the name implies
assumes the existence of better evidence, i.e., the original evidence. As a rule secondary evidence is not
admissible until the nonproduction of primary evidence is accounted for.

Following constitutes secondary evidence:

1.Certified copies: Certified copies mean copies signed and certified as correct by officials having custody of
the original. Public document may be proved by mere production of certified copies. Law says that every
document, which purports to be a certified copy, is to be presumed to be genuine.

2.Copies by mechanical process: Where a number of documents are all made by one uniform process, as in
the case of printing, lithography or photography, each is primary evidence of the contents of the rest. But
where they are all copies of a common original, they are not primary evidence of the contents of the
original. This law supposes the document from which a mechanical reproduction is made to be the original
document. Copies in order to be admissible as secondary evidence must have been made from the original
by some mechanical process which would ensure the accuracy of the copy, e.g., printing, lithography,
photography and the like.

3.Copies made or compared from original: A copy merely as a piece of paper, has no standing as evidence. It
is not admissible even as secondary evidence of the contents of the original. But a copy made from the
original though not compared with the original is admissible as secondary evidence. So it is a copy
compared with the original though not made from the original. It follows, therefore, that a copy, which has
neither been made from the original, nor has been compared with the original, will be inadmissible in
evidence. Secondary evidence under this Article includes copies made from or compared with the original
and even oral account of the contents or a document given by some person who has himself seen it.

4.Counterparts of document: Where a document is executed in counterparts, each party only signs the part
by which he is bound and each counterpart is the primary evidence against the party signing it and his
privies. But each counterpart is only secondary evidence as against the parties who did not execute it.
Execution in counterpart is a method of execution, which is only adopted when there are two parties to the
transaction. Thus simultaneous execution of a lease and qabuliat (OJ) is a wellknown form of the
execution of a document in counterparts.

5. Oral evidence of eyewitness: This clause means that the oral evidence of the contents of the document
must be given by some person who has seen its contents, that is to say, who has read the document. The
oral account of contents of a document given by some person who has merely seen it with his own eyes but
is unable to read it is not secondary evidence of the document.

Proof of documents by primary evidence Article 75: This law embodies the general rule that the contents of a
document may be proved either by primary or by secondary evidence. This law rests on the maxim that the
best evidence must always be produced. The reasons are simple and obvious enough, as dictated by common
sense and long experience. Since the best evidence of the contents of a written instrument is the instrument
itself, that must be produced and no secondary evidence of its contents will be admissible unless the absence of
the original is satisfactorily accounted for. For example, by proving that it is lost or destroyed, or that it is in
possession of the opposite party and he will not produce it after a notice to produce has been duly served upon
him.

Cases in which secondary evidence relating to document may be given Article 76: The general rule is that the
contents of a document must be proved by the production of the original document itself and that no
secondary evidence of its contents will be admissible unless the nonproduction of the original has been
satisfactorily accounted for. Document means a document admissible in evidence. If a document is admissible
in consequence of not being registered or not being properly stamped, secondary evidence cannot be given to
its existence. There are exceptional cases, however, in which secondary evidence of document is allowed and
those are stated in this Article which are as follows:

1.Document is beyond reach: This clause contains three conditions for the application of this clause namely,
that when the original is:

(1)In the possession or power of the person against whom the document is sought to be proved.

(2)Of any person out of the reach of or not subject to the process of the court.

(3)Of one legally bound to produce it but remain fails after notice is served.

Under this clause secondary evidence may be given of the contents of the document when the original is in
possession of power of the adverse party and he fails to produce it after a notice to produce has been duly
served upon him.

In this case any secondary evidence of the contents of the document is admissible.
2. Written admission against interest: Where opponent party admits the contents in writing. Under this
clause written admission of the contents of a document by person against whom they are sought to be
proved are always admissible as proof of the contents of the document even though the original is in
existence and no notice to produce it given. Under this clause the person contemplated is the person in
whose possession the document is. In such a case secondary evidence of the contents of such a document
can be given without giving notice to that person to produce the document.

Only written admission is admissible.

3. Destruction cases: The loss of destruction of writing, if satisfactorily shown, opens the door for the
admission of secondary evidence as to its contents. Copy of a private document is only admissible after
proof of loss or destruction of original. Where it has been satisfactorily shown that the original writing is
lost or destroyed, secondary evidence of the contents of such writing is admissible.

In this case any secondary evidence of the contents of the document is admissible.

4. Heavy in size: Secondary evidence is admissible when it is impossible or highly inconvenient to produce
the original or on account of the great and impracticability of producing the original. This occurs where the
original is a fixed inscription (writing), such as that on a tombstone or flag displayed at a public meeting or
a placard pasted on a wall. Similarly notices warning to trespassers affixed on boards may also be proved
by secondary evidence, since they account conveniently, if at all, be produced in court.

In this case any secondary evidence of the contents of the document is admissible.

5. Immovable: The law says that thing not easily moved, as in the case of things fixed in the ground or a
building, for example, notices painted on walls, tablets in buildings, tombstones, monuments, or marks on
boundary stones or trees. Secondary evidence is admissible on account of the great inconvenience and
impracticability of producing the original.

In this case any secondary evidence of the contents of the document is admissible.

6.Public document: Where the original is a pubic document, secondary evidence of its contents is admissible
even though the original is in existence and available. This exception has been adopted for reasons of the
great inconvenience in removing the public documents and the risk of loss that would be incurred if they
were removable. Under this clause only a certified copy of the document is admissible. This clause is
intended to protect the originals of public records from the danger to which they would be exposed by
constant production in evidence. Public documents can only be proved by their production or by secondary
evidence of the nature described in this clause. The oral evidence of a witness cannot prove them.

Only certified copy of the document, but no other kind of secondary evidence, is admissible.

7.Permissible copy: Certified copies are admissible as secondary evidence under this clause. Articles 76, 78,
and 86 may be read alongwith it where an original document cannot be given in evidence owing to a
statutory ban its certified copy cannot be admitted in evidence, e.g., certified copy of the income tax return.
When a document falls within this clause only a certified copy is admissible in proof of its contents.

Only certified copy of the document, but no other kind of secondary evidence, is admissible.

8. Numerous accounts: This provision is meant for saving public time. Where the fact to be proved is the
general result of the examination of numerous documents and not the contents of each particular a
document and the documents are such as cannot be conveniently examined in court, evidence may be
given, under this Article, as to the general result of the document by person has examined them and who is
skilled in the examination of those documents, although they may be public within the meaning of this
Article.
Evidence may be given as to the general result of the documents by any person who has examined them,
and who is skilled in the examination of such document.

9.Forming judicial record: Where original document is within the custody of court being judicial record and
remains unable to produce, its secondary evidence shall be admissible.

Rules as to notice to produce Article 77: Notice is required in order to give the opposite party a sufficient
opportunity to produce the document, and thereby to secure the best evidence of its contents. Such notice may
be disposed of with if it is not necessary on the pleadings or the court thinks fit to dispense with it.

When a document is in the hands of opposite party, it is necessary to serve him or his counsel with a notice to
produce it and upon proving the service of the notice, secondary evidence of its contents may be given. The
object of a notice is to give the adverse party an opportunity by producing the original to secure, if he pleases,
the best evidence of its contents, and if he does not, to enable the party serving notice to give secondary
evidence.

Notice to produce is not necessary in the following cases:

1.Notice: When the document is itself a notice, e.g., a notice to quit, a notice of dishonour of a bill, or a notice
to produce. The reason for this is that if notice were required in case of notices, notices must go on ad
infinitum (infinity, endless).

This exception appears to have been originally adopted in regard to notices to be produced for the obvious
reason that if a notice to produce such a document were necessary the series of notices would become
infinite.

2.Awareness of adverse party: Where a document is in the possession or under the control of a party and he
fails to produce it, it should be taken that from the very nature of the case he knew that he would be
required to produce it.

A notice to produce is not required when the nature or the case sufficiently informs the adverse party that
he will be required to produce the document.

3. Fraudulent acquisition of adverse party: A notice to produce is not required if the adverse party obtains
the possession of the document, the production of which is required, either through fraud or force.

4. Original already in court: The object of the notice is not to give the opposite party an opportunity of
producing the proper testimony to support or impeach the document, but merely to enable him to produce
it, if he likes, at the trial and thus to secure the best evidence of its contents.

Where a party is shown to have the original with him in court and refuses to produce it, secondary
evidence will be admitted notwithstanding the want of a notice to produce.

5. Admission of lost by adverse party: If the adverse party or his agent admits the loss of the original
document, notice to produce the document to the adverse party is nugatory (worthless). Where the
document is admitted by the opponent to have been destroyed or lost or even out of his possession, no
notice is necessary, for it is no longer a case of opponents possession but of loss.

6.Person, out of the reach or not subject of the court: Where the original is in the possession or power of a
person outside the jurisdiction of the court, no notice to produce is necessary.

Proof of signature and handwriting of person alleged to have signed or written document produced Article
78: No writing can be received in evidence as a genuine writing until it has been proved to be a genuine one,
and none as a forgery until it has proved to be a forgery. Writing itself is not evidence of one thing or the other
unless accompanied by a proof of some sort, admissible in evidence.
Merely presentation of document in court as evidence is not sufficient. It is to be proved. A question always
arises when document is produced, whether it is genuine one, i.e., signed or written by the person by whom it
purports to have been signed or written.

Two witnesses must prove its truth. Where two witnesses are not available, one alive witness must testify its
truth as document was written and executed before him and was signed in his presence. Attesting witness has
to be brought in court to prove contents of document.

Where signature is obtained on white paper and later on text is written on it in the absence of the person, who
had signed it, it shall not constitute the document originally executed. Execution of document must be
completed in the presence of the persons between whom it is. It shall not be acceptable at all in the court of law.
Such type of document does not create any right acceptable by court.

Where a document is registered, it may be taken to be proved without any independent proof of its execution
being given.

This Article does not, however, lays down any particular mode of the proof of the signature of the writing, it
merely requires the signature or the writing to be proved. Any mode of proof recognized by the Order may, in
the discretion of the Judge and the circumstances of the case be considered sufficient.

1.Comparison by Court itself under Article 84:

2.Testimony of export under Article 59:

3.Person who wrote:

4.Witness who saw:

5.Who acquittance handwriting under Article 61:

6.Counterpart:

7.Attesting witnesses:

8.Admission of party:

9.Circumstantial evidence:

10.Modern devices:

Proof of execution of document required by law to be attested Article 79: Two witnesses must prove the
authenticity of the written document. This is legal requirement without which is has not evidentiary value at
all. Both witnesses shall have to testify its truth. If one witness is died, second one shall testify in the absence of
second one. Witness testifying must be subject to the court. Witness must be capable being witness. When
witness becomes mad after making attestation, he shall become incompetent to testify the contents of
document.

There are, however, certain exceptions to the rule that a document required by law to be attested must be
proved by calling two of the attesting witnesses. These are:

1.When a party to the document admits its execution by himself.

2.When the document is thirty years old, the court may presume due execution and attestation and dispense
with proof.
3. When the document is a registered one and executant does not specifically deny its execution, against
whom it is to be used.

4. When the document is proved to be in possession of the adverse party who refuses to produce it after a
notice. In such a case the party may give secondary evidence without calling the attesting witnesses.

Attestation means the witnessing of actual execution of document and of mere acknowledgement of execution
by the executant. The attesting person must have seen the executant signing the document. Mere
acknowledgement by executant before attesting person is insufficient.

Proof of signature: Ordinary rule for proving signature of any person on document would be to call the person
in evidence. Where person who was alleged to have executed document had denied his signatures, calling that
person in whose presence such document was executed could prove his signatures.

Proof where no attesting witness found Article 80: Mere presentation of original document in court is not
sufficient to testify its truth or originality. Not only its production in court is necessary but its prove by the
attesting witness is necessary.

This Article lays down the mode of proof of execution of documents that require attestation. This means that
the Article is not attracted for the proof of documents, which requires no attestation. It provides for the
contingency when no attesting witness is found or the document is executed in United Kingdom. It lays down
that an admission of execution of the document by the party shall be sufficient proof of the execution of the
document even thought the document is one which by law requires to be attested.

Where the witness is not available who had attested the document at the time of its execution, it shall be
proved either he has been died or gone elsewhere not possible to call.

Where the executant of, and all the marginal witnesses to, a mortgage deed was deed, it was held that the
mortgage deed was sufficiently proved by evidence that the signature of the mortgagor was in his own
handwriting. Also that the signatures of two of the marginal witnesses, were in their handwriting.

Admission of execution by party to attested document Article 81: Law enacts that an attesting witness is not
necessary when a party executing a document admits the fact of execution. This Article applies only to a
document duly executed, that is, executed in accordance with the formalities connected with a particular
document.

The term admission in this Article relates only to the admission of a party in the course of trial of a suit and
not to the attestation of a document by the admission of the party executing it.

This Article applies only to documents, which have been properly attested. Provisions of law requiring for the
validity of certain instruments their attestation by certain number of witnesses are rules of law and not mere
rules of evidence.

According to this Article, the admission of execution is sufficient proof against the party who admits the
execution, but as against other parties the documents is to be proved by calling at least one attesting witness.
Such admission is neither binding upon the other defendants who were not a party to it, nor upon the legal
representative of the person admitting execution, as for instance, his son, or transferee.

The effect of this Article is to make the admission of the executant a sufficient proof of the execution of a
document as against the executant himself, even though it may be a document attestation of which is required
by law.

This Article operates only where the person relying on a document has not given any evidence at all of due
execution of the document by the executant but relies on an admission of execution by the later. So that if a
mortgagor admits execution of a document in the written statement, it is wholly unnecessary for the mortgagee
to adduce any evidence as to the execution of the document.

Where party admits the execution of document, it becomes sufficient proof of its truth and originality. Sale
agreement in which at least two witnesses are necessary and registry in which also two witnesses are necessary
itself is proof. Where legal requirements have been fulfilled, no extra effort is required to prove the document.

Where it is proved that the document was executed on gunpoint or the white paper was got signed and was
not executed in accordance to law shall not be proof of its truth.

Proof when attesting witness denies the execution Article 82: Principally the attesting witness is required to
prove the contents of document, but where he so denies, other means are required to prove the document. This
denial may be at any reason.

This Article applies to all attesting witnesses, whether the documents require attestation or not. Thus, this
Article becomes applicable if the attesting witness when called and examined deposes that the person alleged
to have signed the document had only signed a blank paper. To sum up, this Article provides that if attesting
witness to a document denies or does not recollect the execution of the document, its execution may be proved
by other evidence.

Where an attesting witness has denied all knowledge of the matter the case stands as if there was no attesting
witness and the execution of the document may be proved by other independent evidence.

The attestation of a document does not amount of an admission of its contents by the attesting person unless it
can be proved that the document was read ever to him and that he made attestation conscious of the statement
made in the document.

Proof of document not required by law to be attested Article 83: Under Registration Act, there are two types
of documents, i.e., registration of those is necessary and those registration of, which is optional. If document is
got registered registration of, which is optional, does not require to be proved as if it was unattested.

This provision is applicable only if all the parties are before the court, and in ex parte proceedings, the attesting
person should yet be called. The executant of a receipt need not be examined where the payer has sworn to the
payment.

Where the law does not require attestation for the validity of a document, it may be proved by admission or
otherwise, as though no attesting witness existed.

Comparison of signatures, writing, or seal with other admitted or proved Article 84: There are certain modes
of proving documents as follows:

1.Opinion of expert Article 59: Where court becomes unable to ascertain the originality of the fact, opinion of
an expert resolves the problem.

2.Opinion of the person so acquainted Article 61: Person who is so acquainted with the handwriting of the
writer, e.g., Manager may prove the handwriting of his Steno.

3. Person who writes the document: Person who actually writes or signs the document may also prove the
truth of the document.

4.Who has seen the writing actually: Person who actually saw the party wrote or signing the document may
also prove its contents.

Court may compare the signature, writing, or seal itself. Person present in court is asked to produce his
writing, signature, or seal to append before court. Court itself examines the originality.
The court may compare the disputed signature, writing, or seal of a person with signatures, writings, or seals
which have been admitted or proved to the satisfaction of the court to have been made or written by that
person.

In applying the provisions of this Article it is important not to lose sight of its exact terms. It does not sanction
the comparison of any true documents but requires that the writing with which the comparison is to be made
or the standard writing as it may be called, shall be admitted or proved to have been written by the person to
whom it is attributed. Next the writing to be compared with the tendered or, in other words, the disputed
writing must purport to have been written by the same person, that is to say, the writing itself must state or
indicate that it was written by that person.

Maxim secundum allegata et probat person alleging a fact must prove it. Plaintiffs having relied upon
documents in question were required to satisfy court about the correctness and genuineness of the same.

Where such signature, writing or seal on particular document is not proved or admitted to be genuine, it
cannot be legitimately used for comparing it with the signature, writing, or seal on other documents.

A court can call upon the accused to give his writing in court and make it available for comparison by an
expert. A court has power to direct an accused person, present in court to make his finger impression for the
purpose of comparison with another impression supposed to have been made by him.

Public documents Article 85: Documents are of two types, i.e., public and private. Article 85 deals with public
documents. Article 86 simply says that documents which do not fall within the purview (reach, range) of
Article 85 are private documents.

Under Article 85 only such documents are considered to be public document as form the acts or records of
public officers. The mere fact that a document is kept in a public office does not entail the inference that it is a
public document. It must be shown that it was prepared by a public servant in the discharge of his official
duty. It can be produced as evidence without seeking of permission from court.

Following are the public documents as enumerated under Article 85:

1.Record or Act of the sovereign such as statues, gazettes, proclamations, and such like that.

2.Act or record of the tribunals such as records of courts of justice, decrees, judgements, writs, warrants, bill,
etc.

3.Act or record of the public officers, legislative, judicial and executive of any part of Pakistan or of a foreign
country.

4.Public records kept in Pakistan of private documents such as registries, Wills, etc.

5. Record of judicial proceedings such as record of confession made by Magistrate, deposition (attestation,
announcements) of witnesses, oral information given to the pubic officer as to the commission of a
cognizable offence and reduced to writing by him u/s 164 of Code of Criminal Procedure.

6.Any documents which maintains public servant under any law of Pakistan such as mortgage deed register
according to law is a public document under this clause.

7.Registered documents the execution whereof is not disputed.

Private documents Article 86: All the documents, which do not fall within the definition of public documents,
are private documents. All the documents, which are not defined as public documents, are private documents.

Certified copies of public documents Article 87: Under this Article certified copy of public record is defined.
Following are the ingredients to form a public record as certified copy:
1. Who may issue: A public officer in whose custody public record is kept ordinarily during the course of
normal work is authorized by law to issue certified copy of public record. Person who does not keep such
record in ordinary course of official duty is not authorized by law to issue such certified copy.

2.Payment of legal fee: It is very important part of the issuance of certified copy of public record that fee has
been paid for it before its issuance.

3.Issuance on demand: Person who has right to inspect the record may apply for the certified copy of public
record. It is not issued without application of its demand.

4.Certification on foot of document: At the foot of the copy from public record, officer authorized puts the
words certified to be true copy. Mere photocopy of public record does not form certified copy unless it is
specifically certified as provided in law under Article 87 of the QanuneShahadat Order.

5.Name of issuing authority: Person who is issuing the certificate shall mention his name on certified copy.

6. Designation: Authority issuing certified copy shall also provide her designation as to have authority to
issue such certified copy.

7.Signature: Officer issuing the certified copy puts his signature below the words certified to be true copy.

8.Date: Date is mentioned on which certified copy is issued.

9.Seal: Certified copy of public record remains incomplete until or unless official seal is not put into it.

Proof of documents by production of certified copies Article 88: Under law, entry contents of public record
can be proved by production of certified copy. This rules is based on the ground of convenience of, since
removal of the original for production in evidence would delay and hinder the official use of the files, would
subject them to the risk of loss and would damage them by constant wear and tear.

Proof of other public document Article 89: This Article indicates how certain public documents are to be
proved. A public document may be proved by the production of the original, or by a certified copy under
Articles 88, or in the manner prescribed by Article 89.

1.Government notification may be proved by producing a copy of the Gazette in which it is published

2.Proceedings of the Legislature may be proved by the journals of those Legislatures, or by published Acts or
by copies purporting to be printed by Government.

3. Proceedings of municipal body may be proved by a copy of which proceedings certified by the keeper
thereof, i.e., secretary of municipality.

4. A foreign public document may be proved by the original or by a certified copy. But in the later case, the
legal keeper of the document must certify the copy and there must be a certificate by a notary public or a
diplomatic agent, to the effect that the legal keeper of the original has certified the copy.

Presumption as to genuineness of certified copies Article 90: Law raises a presumption as to the genuineness
of certificates, certified copies or other documents which purport to be certified by any officer of the Central
Government or by duly authorized officer in an acceding or nonacceding State.

Document produced in court in compliance of prescribed manner is presumed genuine and officer who attests
it is presumed authorized by law until this presumption is disproved.

Court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer
signed it in the official character which he claimed in the said document. This presumption is liable to be
rebutted. The words shall presume indicate that if no other evidence is given the court is bound to find that
the facts mentioned in the Article stand exist.

When case comes to court, court presumes in favour of one party. Accused is presumed innocent until or
unless prosecution proves his guilt.

Where stolen goods are recovered from a person, court shall presume that he is either thief or receiver of stolen
goods until or unless he proves his innocence.

There are two types of presumptions, i.e., presumption of law (irrebutable) and fact (rebutable).

Under the old law of Evidence, where child is born after marriage, even after a week, was presumed legitimate
provided husband does not denounce his legitimacy. This was rebutable presumption of fact.

According to current QanuneShahdat Order, a child is presumed legitimate if he borns at least after six month
of the solemnization of marriage provided husband does not denounce his legitimacy. This is also rebutable
presumption of fact.

Where presumption has been drawn in favour of one, no one can rebut it. Law has presumed that child under
age of seven year is doli incapax, i.e., incapable of having mens rea. Therefore murder cannot be proved against
child under seven years of age. This is irrebutable presumption of law.

Presumption as to documents produced as record of evidence Article 91: This Article does not deal with the
admissibility of the document referred to therein, but simply dispenses with the necessity of their formal proof
by raising the presumption that everything in connection with them had been legally and correctly done. The
court shall presume these things, viz.

1.That the document purporting to be recorded evidence or statements or confessions are genuine.

2. That the statements as to the circumstances under which they were taken by the officer who affixed his
signature are true.

3.That the evidence, etc., was duly taken.

The Article does not render admissible any particular kind of evidence but only dispenses with the necessity
for formal proof in the confession duly taken is tendered in evidence in the Sessions Court, calling Magistrate
who recorded it. The court in such a case will presume that the document is genuine and the signature affixed
is that of the Magistrate by whom it purports to be signed.

Presumption as to genuineness of documents kept under any law Article 92: Any document kept as required
by law is presumed correct and genuine. Marriage Certificate is a public record. Date of birth in Municipal
Committee is public record thus authentic and correct. Under this Article the court is bound to presume the
genuineness of every document purporting to be a government Gazette, a newspaper, a journal, or a copy of a
private Act of Parliament printed by the official printer. The presumption is rebutable.

Presumption as to maps or plans made by authority of government Article 93: Any plan or map which
government either central or provincial publishes for public purposes are supposed correct and genuine.
Published charts are true until they are rebutted or disproved. They must be available in market for public use.
Where map is prepared for departmental use or for own use shall not be presumed as genuine or correct.

Presumption as to collections of laws and reports of decision Article 94: The Article dispenses with the proof
of books purporting to be published by the government of any country, containing laws and decisions of the
court. Their accuracy and genuineness is to be presumed.

This Article lays down that when the court has to form an opinion as to a law of any country, any statement of
such law contained in a book purporting to be printed or published under the authority of the government of
that country and to contain any of the laws of that country shall be presumed to be genuine.

Presumption as to power of attorney Article 95: When principal gives authority to his agent to act on his
behalf is presumed the act of the principal itself. This Article authorizes court to presume the genuineness of
the execution and authentication of a power of attorney when such execution was done before and
authentication was done by any of the officials mentioned in this Article.

The court shall presume the due execution and authentication of a power of attorney when executed before
and authenticated by a Notary Public, or any court, Judge, Magistrate, Pakistan Counsel, or Vice Counsel, etc.

A power of attorney is writing authorizing another person to do any lawful act instead of another, e.g., to
receive debts or dividends, sue a third person, etc. This instrument empowers that other to act in his name
exactly as the party giving it himself would do until revocation.

Presumption as to certified copies of foreign judicial records Article 96: Where double certification is
obtained as to foreign judicial record attested by Pakistan Counsel is presumed correct. It is mandatory and not
optional. The authority of that relevant country firstly attests copy of the foreign law and then by the Pakistan
Counsel.

This Article lays down that the court may presume the genuineness and accuracy of any document purporting
to be certified copy of any judicial record of any foreign country, provided such copy is duly certified by a
representative of the Central Government in that country, to the effect that the copy has been certified in
conformity with the rules in force in that country for the certification of copies of judicial records. The
presumption is permissive as the words may presume indicate and is rebutable.

Presumption as to books, maps, and charts Article 97: Where any book, map, or chart is published nature of
which is public or general interest, court presumes that it is done by the person who claims it. Where book of
art or science is published for public consumption, court draws presumption as to its author, publisher, and
date of publication is correct as indicated in it. But the rest material is to be proved.

Presumption as to telegraphic message Article 98: Where telegraphic message is transmitted from the
telegraphic office, court may (optional) presume its contents are correct because there is no reasonable cause
that office of telegraph shall change the contents of the transmission. But name of the transmitter is not
presumed as it appears on the face of transmission. Contents of the telegraphic message are presumed correct
which were given to telegraphic office. Presumption is not drawn as to its sender. It is to be proved.

The court is forbidden to make any presumption as to the person who transmits telegram. The Article enables
the court to accept the hearsay statement as evidence of the identity of the message delivered with that handed
in.

This Article raises the presumption that a telegraph message received by addressee from the telegraph office
corresponds exactly with the message handed in by the sender at the office of origin. This Article does not
allow court to presume as to the persons by whom the message was delivered for transmission.

Presumption as to due execution, etc., of documents not produced Article 99: Where document is executed,
court shall presume that it is originally executed according to law and date and signatures are correct. Two
competent witnesses have duly verified it.

Where document is within the custody of person other than original, court shall summon him. Where summon
is defeated court shall allow the secondary evidence and also presume that the document refused to produce
was duly attested, stamped, and executed in the manner prescribed by law.

Presumption as to documents thirty years old Article 100: Normally document produced in court is required
its proof. But the ancient document of thirty years needs not to be proved. Its contents are presumed correct but
it is optional and not obligatory on court. As is apparent from the words of the Article, the presumption
mentioned herein is permissive and not imperative. Thus, if a document is proved to be thirty years old and
comes from the proper custody, the court is not bound to presume its genuineness.

Where documents is within legitimate custody where they should be, theirs contents also be presumed correct.
Custody of bank is valid where documents are pledged for the purpose of credit facility. Custody of real
brother is also real custody where actual person goes to abroad and hands over them to his real brother for it
proper use.

Certified copies of documents thirty years old Article 101: Certified copy of the ancient document of thirty
years is as admissible as the original is.

Evidence of terms of contracts, grants, and other disposition of property reduced to form of document
Article 102: When a transaction has been reduced to writing either by agreement of the parties or by
requirement of law, the writing becomes the exclusive memorial thereof, and no evidence shall be given to
prove the transaction, except the document itself or secondary evidence of its contents where such evidence is
admissible.

Sale, transfer, and mortgage etc. are the transactions write up of which is compulsory by law. Without the
attestation by two competent witnesses they cannot be got registered.

Meaning: Where parties agree to reduce into writing the transaction, it must be produced in court as evidence.
Oral evidence is not allowed. Principal and same document is requirement of the law for the purpose of
evidence. It should be produced in the court.

Types of document: There are two types of documents, i.e., one is registration of, which is compulsory, and
second one is optional. One is required to be reduced into writing compulsorily and second one is optional.
Transfer of Property, sale, mortgage, and gift should be duly executed, i.e., written, signed, verified, stamped,
and attested. Document should not be prior signed but subsequently. Write up on the paper signed before its
execution is nullity in the eyes of law. It should be properly executed, as law requires.

Rule: According to the law, where there is written document, it must be produced in court to prove contents.
In certain circumstances it cannot be made available to produce in court as evidence. It may be within custody
of opponent party, which has refused to produce it. It may either be damaged by fire, earthquake, flood, stolen,
washed away by the river. Where damage is caused, it must be proved by right reasons, then court may
account for and may permit to adduce secondary evidence.

Where document is within custody of opponent party and it has refused to produce it after summoning of the
court, then also court shall allow secondary evidence. Oral evidence can be adduced. Also certified photocopy
of public record can be produced.

Types of secondary evidence: There are three types of secondary evidences admissible in place of original
document such as:

1.Photocopy: It is made from original document by some mechanical process. Same copy is produced.

2.Made from original: Copy, which is made from the original, can also be produced as secondary evidence.

3. Counterpart of original: Where more documents are prepared and each party executes them and then
exchanges the documents bearing the signature of others is called counterpart of the original. It is
admissible in evidence as secondary evidence.

4.Oral evidence: Court may also permit oral evidence where document is not available.

Exceptions: As a matter of rule original document is to be produced in court as evidence, but there are some
exceptions in the general rule as follows:
1. Public document: Certified copy from public record does not need to be original thus it can be produced
without permission of court.

2.Probate: Will can be proved by the probate thus production of probate becomes immaterial.

3. Any document: Any document where there are more than one original documents can be adduced as
evidence without permission of court in place of original one.

Exclusion of evidence of oral agreement Article 103: Where any document required by law should be written,
it must be written and it shall exclude the oral evidence. Only written document must be produced before court
to prove its contents.

There are some exceptions to this general rule such as:

1.Any act of fraud or illegality: Where any fraud or illegality is committed in the execution of document can
be proved by oral evidence.

2. Separate connected agreement: Where document is silent on any separate connected agreement, can be
proved by oral evidence. It should not be irrelevant to the document.

3. Condition precedent on execution: Where any condition is attached separately to execute the document,
can be proved orally.

4.Distinct subsequent condition: Where any subsequent condition is imposed to alter the agreement orally,
can be proved by oral evidence. This subsequent condition is not applicable where it is required by law to
be written.

5. Implied provision of usage or custom: Where any custom or usage is not expressly provided under
contract and is impliedly considered being part of contract can be proved orally provided it is not
inconsistent with the terms of contract.

6. Language of the document: If a document is doubtful in its meaning, evidence of surrounding


circumstances is receivable for the purpose of throwing light on its interpretation. Such evidence is
admitted on the principle that a person, who has to interpret a document, ought to be put into the same
position, as the person whose language is being interpreted.

Exclusion of evidence against application of document to existing facts Article 104: Where the language of
document is patent and plain and not latent, oral evidence shall be disallowed to show different intention.

Where no doubt arises from the plain language of document, otherwise evidence is wholly inadmissible to
show different intention was meant.

For instance, A agrees to sell B white horse, and actually A is in possession of white horse, here different
intention shall not be allowed as to red horse was meant.

Evidence as to document unmeaning in reference to existing facts Article 105: Where the language of deed is
plain but doubt arises at to its meaning, then evidence can be given to clarify its real sense.

For example, A agrees to sell land to B situated in Lahore but A has not land in Lahore but in Shahdara Town,
possession of which B has taken since the execution of deed.

Evidence as to application of language, which can apply to one only of several persons Article 106: Where
the language of deed is not accurately fits to a person or some other fact, evidence can be given to fix the
meaning of the document.
For instance, A sells to B one Pentium III Computer, but A possesses two such computers, thus evidence can
be adduced as to show whether which computer was meant to sell.

Evidence as to application of language to one of two sets of facts to neither or which the whole correctly
applies Article 107: Where language of the deed could not mention the application of contract on one set of fact
and applies partly on two sets, then evidence can be given to fix the application of agreement.

For example, A agrees to sell to B, my land at X in the occupation of Y. A has land at X, but not in the
occupation of Y, and he has land in the occupation of Y, but it is not at X. Evidence may be given of facts
showing which he meant to sell.

Evidence as to meaning of illegible characters, etc. Article 108: Evidence as to the meaning of illegible
characters, e.g., shorthand or writers notes or of foreign, obsolete, technical, local, and provincial expressions
and of words used in a peculiar sense may be given.

As a general rule, in constructing written instruments, the grammatical and ordinary sense of the word is to be
adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in which
case the ordinary and grammatical sense may be modified so as to avoid that absurdity or inconsistency.

Who may give evidence of agreement varying terms of document Article 109: Where right of third party
suffers from the oral agreement of two parties apart from whatever is committed in a deed, he may give
evidence to prove the fact upto the extent of his suffering.

For example, A and B make an agreement to sell wheat. An oral agreement is made for one moths credit. C can
give evidence where his interest suffers from the agreement of A and B.

Facts judicially noticeable need not be proved Article 111: Judicial notice is the cognizance taken by the court
itself of certain matters which are so notorious or clearly established that evidence of their existence is deemed
unnecessary. Judicial notice is taken of such facts, the notoriety (fame, repute) or regular occurrence of which in
the ordinary court of nature or business had made them familiar to the Judge. And if such facts form part of
the litigants case, he is excused from proving them or in other words, the court will take judicial notice or
cognizance of their existence.

Laws of Pakistan or proceedings of parliament etc. need not to be proved. Court itself is required to take their
cognizance.

When the case comes to court for its determination, it needs proof. It must be proved. It cannot be decided until
it is proved. There is no need to prove the issues on which court is required to take judicial notice, e.g., laws of
Pakistan, flags of countries etc.

Facts of which court must take judicial notice Article 112: This Article contains the long list of laws, which are
judicially noticeable by court itself.

Facts admitted need not be proved Article 113: In civil cases if party admits his case against whom, case to be
proved, there shall be no need to prove it by evidence. In civil litigation written statement is supplied to the
court which may include admissions on certain facts which needs no proof.

Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not
admitted in the pleading of the defendant, shall be taken as admitted.

Estoppel Article 114: The word estoppel means the rule of evidence or doctrine of law which precludes a
person from denying the truth of some statement formerly made by him, or the existence of facts which he has
by words or conduct led others to believe in. If a person by a representation induces another to change his
position on the faith of it, he cannot afterwards deny the truth of his representation.
There are three ingredients of estoppel such as:

1.Misrepresentation, e.g., the material in contract is trust worthy but actually it is not as such.

2. Other party believes him, e.g., other party makes an agreement believing on the statement of promisor
which actually is misrepresentation.

3.Acts upon it, e.g., party gives to others token money to form contract.

Later the person who misrepresents alienates the property to its legatees by way of inheritance he can be
stopped to do so. He cannot say that property did not belong to me. He shall be estoppel to do so.

Proceedings against misrepresentation can also be lodged either in civil or criminal courts. For the purpose of
claiming damages, proceedings can be initiated in civil court, but for the purpose of punishment proceedings
can be get started in criminal court.

Where no person believes in misrepresentation thus does not act upon it, it does not binding on party to estop
other party.

Estoppel of tenant and of licensee of person in possession Article 115: Where tenant gets the possession of
property with the permission of its ostensible owner, tenant cannot, later on, deny the truth of being his
ownership. Tenant shall be estopped to deny the truth.

When the relation of landlord and tenant is once established, the estoppel will attach to all who may succeed
the tenant, immediately or remotely.

Where one tenant comes under licence of the owner, his successor cannot deny the truth of ownership of the
landlord.

Estoppel of acceptor of bill of exchange, bailee, or licensee Article 116: This Article deals with three more
estoppels by agreement. These are:

1.The acceptor of a Bill of Exchange is precluded from denying the authority of the drawer to draw the bill or
endorses.

2.A bailee is estopped from denying that his bailor had, as the time the bailment was made authority to make
it.

3.A licensee is estopped from denying the title of the licensor to grant the license.

1.Meaning of estoppel: s

2.Principles: s

a)Misrepresentation: s

b)Act upon it: s

c)Immediate cause: s

d)Unawareness of real facts: s

e)Belief of other party: s

f)Intention: To make belief.


3.Objects: s

a)To prevent fraud: s

b)To prevent from litigation: s

c)For speedy justice: s

4.Where no estoppel: s

a)In criminal cases: s

b)In parliamentary laws: s

c)Opinion: s

d)Corporation/companies: s

5.How estoppel: s

a)By Court: s

b)By deed: s

c)By conduct: s

Burden of proof Article 117: When any party wants to take decision in his favour requires proving facts in
issue in his favour. Mere presentation of suit or case in court is insufficient to get remedy. Material evidence is
required to prove the facts in issue.

For example, a person has acquired property can prove his ownership either by way of inheritance or sale
deed.

One who imposes allegations, i.e., plaintiff or prosecution must prove his suit or case. One who alleges must
prove his claim.

Who prays to impose death penalty to murderer must prove the fact of murder committed by such alleged
person. Where there is no murder, there is no death penalty and in the same manner where there is murder but
there is no proof against accused, there is no death penalty. Facts alleged must support the commission of
offence.

In civil litigation, plaintiff and in criminal trial, prosecutor, has to prove facts through evidence so that court
may reach on conclusion beyond any reasonable doubt in their favour for judgement.

On whom burden of proof lies Article 118: Article 118 of QanuneShahdat Order gives test whether who has
to prove the case. Where both sides fail to adduce evidence in their favour, then party who alleges shall be
responsible to give evidence. Where neither plaintiff nor defendant may prove their case then one who fails
shall prove the facts, e.g., plaintiff or prosecutor.

As a matter of principle, originator is bound by law to adduce evidence to prove facts in issue. This Article lays
down a test for ascertaining on which side the burden of proof lies. The Article makes it clear that the initial
onus is on the plaintiff. If he discharges that onus and makes out a case, which entitles him to relief, the onus
shifts on to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.

Burden of proof as to particular fact Article 119: This Article deals with the plea of Alibi (proof of absence).
Where in criminal case, a murder takes place during of period of imprisonment of alleged accused, such
accused can take plea of alibi being not present at the seen of occurrence. Burden of proof lies on the shoulders
who alleges the fact of being absent, i.e., plea of alibi.

Where presence of accused is impossible, case cannot be made out thus he is acquitted. Accused has to prove
whether it was impossible for him to keep his presence at the place of alleged occurrence. Mere plea of alibi is
insufficient, but strong proof is required to belief of court.

As a matter of principle anybody is presumed before court being innocent unless his guilt is proved beyond
any reasonable doubt. Where stolen goods are recovered from the custody of someone, it is presumed either he
has stolen or received stolen goods. He is required to prove his innocence.

Condition for plea of alibi under Articles of 24(2) and 119:

1.Must be criminal charge:

2.Impossible to reach:

3.Time distance:

4.Presence out of place:

5.Only in criminal cases:

Burden of proving fact to be proved to make evidence admissible Article 120: Where any fact is dependent
on other fact, that fact must be proved before proving the actual fact.

For example, where anybody wants to adduce secondary evidence has to prove the loss of primary evidence
and not available. Where dying declaration has to be proved, firstly death of the person has to be proved. In
short, proof of dependent fact opens the door for court to believe in the actual fact.

Value of dying declaration whether conviction can be based on it:

1.Definition:

2.Essentials of admittance:

a)Death of maker:

b)Recording in its actual words:

c)Circumstances of death: That must be direct consequences of death.

d)Death itself is fact in issue:

e)Declaration must be complete:

f)Must be corroborated:

g)Must be taken as a whole:

h)Must be complete:

i)Must be clear:

3.Modes of recording dying declaration:

a)Written:
b)Oral:

c)Signals:

4.Evidentiary value: It is as good as actual evidence is.

Burden of proving that case of accused comes within exceptions Article 121: Who alleges the commission of
crime under grave and sudden provocation must prove the existence of such circumstances.

Where any person alleges commission of offence comes under exceptions provided under Pakistan Penal Code
and any other special law, he has to prove that his act comes under such exceptions.

Burden of proving fact especially within knowledge Article 122: When a person does any act under special
knowledge, he has to prove such fact. This is exception to this general rule that burden of proof lies on the
party who asserts the affirmative of the issue.

Where a passenger is charged travelling without ticket in railway, he has to prove whether he had bought the
ticket.

Burden of proving death of person known to have been alive within thirty years Article 123: A person who
has been seen within last thirty years alive is presumed alive unless it is proved that he has been died. If his
death is alleged, it requires its proof other court shall draw presumption that he is alive.

Burden of proving that person is alive who has not been heard of for seven years Article 124: This Article is
related with the special knowledge of relatives or some special persons. Where a person is not seen or heard
within last seven years by the blood relatives or friends, it is presumed that he has been died. Otherwise his
alive is to be proved.

Burden of proof of as to relationship in the cases of partners, landlord and tenant, principal and agent,
Article 125: Where existence of some special relationships is proved, presumption goes in its favour, otherwise
their nonexistence is to be proved. And burden of proof lies on the person who alleges it.

Burden of proof as to ownership Article 126: Person who has possession of anything is presumed its
ownership. One who denies such ownership has to prove such fact.

Proof of good faith in transaction where one party is in relation of active confidence Article 127: There are
always two parties in agreement. Party who has upper hand is required to prove the fact alleged against him.
This is depart from general rule of evidence. This comes only in fiduciary relationship.

Birth during marriage conclusive proof of legitimacy Article 128: When the child is born after six lunar (of the
moon) months while the wedlock and husband does not denounce his legitimacy, it shall be presumed that
such child is legitimate.

There are two types of presumptions, i.e., presumption of law (irrebutable) and fact (rebutable).

Under the old law of Evidence, where child was born after marriage, even after a week, was presumed
legitimate provided husband does not denounce his legitimacy. This was rebutable presumption of fact.

According to current QanuneShahdat Order, a child is presumed legitimate if he borns at least after six month
of the solemnization of marriage provided husband does not denounce his legitimacy. This is also rebutable
presumption fact.

Where child is born after dissolution of marriage within two years provided mother remains unmarried, it shall
be presumed that such child is legitimate.
Pregnancy can be determined within a month when husband dies therefore, question as to legitimacy does not
arise.

Where husband disowns the legitimacy of child, then it shall be required to prove legitimacy of child.

Court may presume existence of certain facts Article 129: In certain cases, there is no need of evidence and
court draws it opinion automatically. In such cases court draw adverse inference.

Where goods are recovered from possession of one person soon after theft, court shall presume that he either
has stolen goods or received stolen property.

Approver is unworthy of credit unless his evidence is corroborated from some independent sources.

Judge to decide as to admissibility of evidence Article 131: Anything, which is to be proved, must be relevant.
Anything, which can effect the proceeding, is relevant. Judge can ask question as to get satisfaction whether
fact on which evidence is to be adduced is relevant. When Judge satisfies, then he gives permission for the
evidence.

Where one evidence is dependent on another fact or document, that must be proved first before going into
further evidence. Where original document is not available to produce in court in evidence to prove the fact,
party is obliged to satisfy court as to its damage. Where court is satisfied that original document is not available
due to reasons certain, then courts permit secondary evidence.

Examinationinchief, etc., Article 132: This Article defines the three important terms of evidence such as:

Examinationinchief: This is the party who produces the witnesses in court and asks questions from her
witnesses.

Crossexamination: It is the opposite party who asks questions from the witnesses of adverse party. It must be
directly relevant to the case.

Reexamination: It is last possibly order of examination of witnesses by its own party with the permission of
court.

Crossexamination of person called to produce a document Article 134: Where person is not called as witness,
he cannot be crossexamined. Mere courier who produces the document in court is not witness. However, if he
is called as witness, then he can be crossexamined.

Where a party examined no witnesses but only certain documents were tendered and exhibited without any
objection, question of crossexamination would not arise.

Witness to character Article 135: Character is immaterial in civil litigations but it is so much important in
criminal cases.

The use of character evidence is to assist the court in estimating the value of the evidence brought against the
accused. It is observed in a case that a man is not born a knave there must be time to make him so nor is he
presently discovered after he becomes one. A man may be reputed an able man this year, and yet be a beggar
the next it is a misfortune that happens to many men, his former reputation will signify nothing to him upon
this occasion.

Leading questions Article 136: This Article merely defines the leading question. Leading question is a question
under which answer of the question is provided. Party putting questions suggests answers.

Person to whom questions are asked understands easily that what answer he has to give. Normally form of
leading question is objective, whether negative or affirmative.
When leading questions must not be asked Article 137: Party is not allowed to ask leading questions either in
examination or reexamination.

Examples of leading questions: Following are some examples of leading questions:

1.Did you see A strike B?

2.You were present at the time of occurrence?

3.Murder was taken place with pistol?

4.Resistance was not made?

Only court can permit to ask leading questions. Party cannot crossexamine the witnesses who produce him
except in a single case where court declares witnesses as hostile under Article 150.

When leading questions may be asked Article 138: Only adverse party can put leading questions during
crossexamination.

Under Article 150, examinationinchief can ask leading question where court declares a witness hostile.

Object of leading questions: The reason why leading questions are allowed to be put to an adverse witness in
cross examination is that the purpose of a cross examination being to test the accuracy, credibility, and general
value of the evidence given, and to fit the facts already stated by the witness. It sometimes becomes necessary
for a part to put leading questions in order to elicit facts in support of his case, even though the facts so elicited
my be entirely unconnected with facts testified to in an examination in chief. Where a general order is made
that no leading question shall be allowed in crossexamination, the order is illegal and vitiates the trial.

Evidence as to matters in writing Article 139: Oral evidence can be give as to the matters who were written.
Where adverse party objects, then original documents shall be produced in court to prove the contents of the
oral evidence.

Crossexamination as to previous statements to writing Article 140: Previous statements in criminal cases
such as First Information Report or statements u/s 161 of Code of Criminal Procedure can be cross examined.
Police records statement u/s 161, which can be given to the advocate of accused for crossexamination. These
statements can be proved false.

Questions lawful in cross examination Article 141: When evidence is given then person is crossexamined.
Only relevant questions are allowed to ask. Character can be impeached. Standard of life, income, or character
can be discussed.

This is also provided under Article 151. It objects to find out truthfulness, accuracy, source of knowledge, and
his memory. What is his social status? Whether he sell heroine or wine.

When witness to be compelled to answer Article 142: Witness can be compelled to answer the questions,
which directly criminate him. Witness is protected under Article 15 that he shall not be arrested or criminated
on the ground of answer in evidence.

Court to decide when question shall be asked and when witness compelled to answer Article 143: Where
court thinks fit to compel a witness to give answer compulsorily may compel witness to give answer. On the
base of his evidence, witness cannot be arrested or civil or criminal proceedings cannot be started. He is
protected from any criminate. Where court feels better that answering of the questions is not directly related to
proceedings or unnecessarily impeaches the character of the witness, may warn witness not to answer the
questions.

Court has to regard the following things during crossexamination:


1. Where questioning does not effect the decision of court, court shall no interfere in examination, provided
questions are proper.

2. Where questions are irrelevant, court may want witness not to answer the questions. Court may also
disallow such type of questions.

3.Where stock witness is proved who are readily available to testify the facts, court may refuse their evidence.

4.Litigation must be concluded. Where question either is improper or too remote, court may disallow.

Question not to be asked without reasonable grounds Article 144: Where attack is made on credit, question
cannot be asked without reasonable ground.

All questions should be relevant and merely insult is not allowed. Credibility can be attacked but on reasonable
grounds.

Procedure of court in case of question being asked without reasonable grounds Article 145: Although attack
on credit or character is allowed in examination but it must bear reasonable grounds and it should not be
baseless.

Where any advocate asks questions having no proper grounds or merely based on insult, court may report of
such matter to High Court or any other authority to which advocate is subject, i.e., Punjab Bar Council or
Pakistan Bar Council.

Indecent and scandalous question Article 146: Court monitors the proceedings. Indecent and scandalous
question are not allowed. Where they are put, court can forbid putting them.

Procedure of court in cases of defamation, libel and slander Article 147: Where proceedings are under
litigation or trial as to the defamation either libel or slander, court shall not allow impeachment of character
unless two things are determined first, that is:

1.Whether defamation has been committed.

2.Whether defamation committed is true.

Questions should not be insulting type. Only relevant questions are allowed.

Questions intended to insult or annoy Article 148: Court has power to forbid to ask any question which either
is irrelevant and which unnecessarily injures the character of person.

Exclusion of evidence to contradict answers to questions testing veracity Article 149: When a witness
deposes to facts, which are relevant, evidence maybe given in contradiction of what he has stated. But when
what he deposes to effects only his credit, no evidence to contradict him can be led for the sole purpose of
shaking his credit by injuring his character. However, a witness answering falsely can be proceeded against for
giving false evidence under S. 193 of the Pakistan Penal Code.

The object of the Article is to prevent trials being spun out (continued) to an unreasonable length.

Checks on unfettered powers of cross examination under Articles 143 to 149:

1.Court can compel:

2.Only on reasonable grounds:

3.Report to High Court:


4.Cancellation of license:

5.Forbid to ask question:

6.Forbid to give answer:

7.Record of finding where defamation:

8.Insulting question are not allowed:

9.Annoying not allowed:

10.Legitimate limits:

11.Stop cross examination:

12.Stop repetition:

13.Stop long question:

14.Privileged questions:

Question by party to his own witness Article 150: Where a party calling a witness and examining him
discovers that he is either hostile or unwilling to answer questions put to him, he can obtain permission of the
court to put question to him by way of cross examination.

Object to bring witness in court is to prove vindication of the party and where witness deviates and makes
collusion with adverse party, party can take plea of its hostility. Only court may declare witness of
examinationinchief as hostile.

Hostile witness: A hostile witness is one who from the manner in which he gives evidence shows he is not
desirous of tellingly the truth to the court. A witness who is unfavorable is not necessarily hostile. A witness
who is gained over by the opposite party is a hostile witness.

Impeaching credit of witness Article 151: This Article only prescribes that as to how credit of a witness can be
impeached. Following are the rules:

1.Witnesses: Witnesses may be produced to impeach the credit of the witness under proceedings.

2.Bribe: By proof of bribe or other corrupt inducement.

3.Contradiction of statements: By contradicting the statements particularly u/s 161 of the Code of Criminal
Procedure under which police records statements of the witnesses.

4. General immoral character: By general immoral character, character of the witness can be proved
unworthy or credit.

Questions tending to corroborate evidence of relevant fact admissible Article 152: Person who is giving
evidence of corroboration can be asked question which are though not relevant but can assist to reach on truth.
Questions can be asked about the extra incidents, e.g., stay in hotel before committing robbery or murder,
repair of vehicle before dacoity etc.

Manager of the hotel can give evidence that accused stayed at his hotel before commission of the offence and
he took meal. Accused was suspicious at that time.
Owner of type shop can give evidence that he did repair puncture before commission of the offence and
accused was suspicious at that time.

These facts are though irrelevant but can assist court to conclude the proceedings.

Former statements of witness may be proved to corroborate latter testimony as to same fact Article 153:
Where witnesses have given the statements in any former incident to the authority competent, can be used
again to prove fact.

What matters may be proved in connection with proved statement relevant under Article 46 & 47, Article
154: All matters are proved where any statement is proved under Article 46 & 47 which is related with hearsay
evidence.

Refreshing memory Article 155: It is permissible under QanuneShahdat Order that written statement can
refresh memory. Permission of court is obligatory. Witness can refresh his memory before giving evidence.
Statement must be written. Where articles are stolen and details of them is written soon after occurrence is
admissible for refreshing the memory. Witness may say let me refresh memory before giving evidence. It is
presumed that he has written the detail soon after occurrence and it is correct.

He also may take plea that original document is out of my reach at the moment because the person occupying
such statement has left the country.

Expert may also consult his statement in writing to refresh memory before giving evidence.

Testimony to facts stated in document mentioned in Article 155, Article 156: Where any expert has forgotten
his write up, he can refresh his memory.

Right of adverse party as to writing used to refresh memory Article 157: When party refreshes memory from
document, adverse party may inspect such document for the purposes of crossexamination.

It can be objected whether detail was written, document was written one year before, from where document
was taken, from where paper was obtained, or whether removed from copy. What was the writing medium
whether ball pen or fountain pen. What was the colour of ink whether black or red. Whether paper was lined
or not.

1.What is refresh of memory: s

2.How refresh memory: s

a)By reference of documents: s

b)By any writing: s

c)Copy: s

d)Counterpart: s

3.Who can refresh memory: s

4.Right of adverse party: s

a)As production of document: s

b)To inspect document: s

c)Cross examination: s
5.How documents examination questions: s

a)When document was written: s

b)From where paper was taken: s

c)Whether paper was lined: s

d)What was time of recording: s

e)Where was recording with respect of place: s

f)Medium of recording: Whether ball pen was used.

g)Colour of ink: s

Production of documents Article 158: Where court orders for the production of document in court in evidence,
it must be produced in court. Secret of state is not ground to disobey orders of the court. Court has to decide all
the objections.

Translator is also under obligation to keep the contents of the document hidden so translated if they relate to
state secret.

Giving, as evidence, of document called for and produced on notice Article 159: Where a party to a suit gives
notice to the other party to produce a document, and when produced, he inspects the same, he is bound to give
it as evidence if the other party requires him to do so.

Using as evidence, of document production of which was refused on notice Article 160: Where party fails to
produce document on the notice of court, later on such document cannot be produced. Its subsequent
production is subject to the permission of either court or party. Secondary evidence when admitted it excludes
the production of primary evidence. This is departing of general rule.

Judges power to put questions or orders production Article 161: During the trial Judge can put questions at
to ascertain truth. Party cannot refuse to answer the question of Judge. Crossexamination is subject to the
permission of Court. Form to put question is right of Court. Court may at any time put question. Court may
put question to any witness. Court may also put question about any fact.

Limitation of Court: Court cannot ask privileged questions. Questions bearing insult of party or witness
cannot be asked. Legal requirement cannot be forgone. Judge cannot bypass legal requirements.

No new trial for improper admission or rejection of evidence Article 162: Where Court commits any mistake
in trial or litigation on record, it cannot be made ground for new trial provided it does not effect the decision of
Court. Where mistake is removed without effecting the Court decision or its nonremoval does not effect the
decision, it shall not be made ground for new trial.

Judgement based on improper evidence (which does not fulfill the requirement of court) cannot be retried for
new judgement if it cannot be changed. But if judgement can be changed then case can be retried.

1.Base of decision:

a)Evidence:

b)Proper evidence:

c)Proper trial:
d)Examination:

e)Jurisdiction:

2.Where no proper evidence is admitted or rejected: Following the law for the retrial of denial of new trial:

a)No base of retrial:

b)Where is new trial:

i)If it effects decision:

ii)Where mistake is substantive:

iii)Where removal of mistake effects charges:

Acceptance or denial of claim on oath Article 163: This Article is applicable only in civil suits. Where plaintiff
takes oath in support of his claim, Court may call defendant to deny the facts. Where defendant fails to deny
the fact, he is declared guilty. Decision is given against defendant.

It is not applicable in Huddod or criminal cases.

Production of evidence that has become available because of modern devices, etc. Article 164: Court may
consider modern devices in evidence.

Order to override other laws Article 165: This law has superiority on all the laws enforced for the time being.

Repeal Article 166: The Evidence Act, 1872 (I of 1872) is hereby repealed.

Kinds of evidences: Following are the kinds:

1.Judicial:

2.Extra judicial: Intermediaries make it.

3.Real:

4.Personal:

5.Primary:

6.Secondary:

7.Direct:

8.Circumstantial:

9.Oral:

10.Documentary:

11.Hearsay:

Identification parade: Following are its rules:

1.Definition:
2.When conducted:

a)Where person is unknown:

b)Immediate:

c)Only in presence of Magistrate:

d)In jail only:

3.Conditions:

a)Presence of Magistrate:

b)More than one accused:

c)Similar face:

d)One witness in one time:

e)Part of offence is stated:

f)Writing by Magistrate:

g)Identification of offender:

4.Value:

a)No value:

b)Corroboration is required:

Difference between admission and confession: Following are the differences:

1.Definitions:

a)Admission:

b)Confession:

2.Distinctions:

a)Cases:

i)Admission: It is used generally in civil cases.

ii)Confession: This term is specifically used in criminal cases.

b)In all cases:

i)Admission: It is not confession.

ii)Confession: But it is admission in some cases particularly where confession is retracted.

c)Result:

i)Admission: It admits rights of others.


ii)Confession: It is admission of guilt of self.

d)Conclusive proof:

i)Admission: It is not conclusive proof.

ii)Confession: It is conclusive proof as far as law is concerned on confession.

e)Recording:

i)Admission: It may not be voluntary.

ii)Confession: It is always voluntary. Where is coercion, it is not accepted.

f)Base of conviction:

i)Admission: It is not base of conviction.

ii) Confession: Law on confession is very clear and punishment can be imposed but it must be
corroborated from some independent sources according to unanimous decisions of higher courts.

g)Used under exception:

i)Admission: It can be used under Article 34.

ii)Confession: It is used only its maker/confessor.

h)Against others:

i)Admission: It cannot be used against other.

ii)Confession: Yes it can be used against other as corroboratory evidence.

i)Estoppel:

i)Admission: Law of estoppel is applicable in admission.

ii)Confession: Since the question of life and death is involved therefore it can be retracted.

j)Before police:

i)Admission: Can be made before Police Officer.

ii) Confession: Confession made before Police Officer is not acceptable at all unless some weapon of
offence is discovered.

k)By whom:

i)Admission: It can be made some agent also.

ii)Confession: Only accused can make confession.

l)Value in evidence:

i)Admission: It is not strong evidence.

ii)Confession: Yes, it is strong evidence against its maker.


m)Term:

i)Admission: It is broader term.

ii)Confession: It is narrower term.

What is difference between Article 16 and 129(b):

1.Who is accomplice:

2.Competency as witness under Article 16:

3.Unworthy of credit under Article 129(b):

4.Conviction based upon evidence of accomplice:

5.Corroboration is required: It is decision of higher courts.

6.Why corroboration is required:

a)Shifting of guilt:

b)Pardon:

c)Disregard of oath:

d)Possibility of involvement of innocent:

e)Undue influence of prosecution:

7.In hudood cases:

a)No evidence of accomplice:

b)No conviction:

c)No corroboration:

Where nonrelevancy becomes relevancy under Article 24:

1.Facts which determine damages:

2.Where custom is in question: Deed in which rights are created.

3.Particular instance in which right is claimed: Like mortgage.

4.Facts showing existence state of mine: Knowledge, good faith, bas faith, negligence, ill will are instances.

5.Act forming part of series: Purchase of car for accident, chasing of victim, accident, showing otherwise etc.

6. Existence of course of business: Where letter is posted in post box during working hours shall be
presumed that is has be posted and reached to the addressee because it is not reached back.

7.Please of alibi:

Ingredients of valid custom: Following are the ingredients of valid custom:


1.Ancient:

2.Continue and uniform:

3.Reasonableness:

4.Certain:

5.Compulsory:

6.Peaceable:

7.Consistent:

Relevant judgement under Articles 54 to 58: Following the judgement which can be used as convulsive proof
in another case:

1.Double jeopardy u/s 403 CrPC:

2.Judgement in rem under Article 55:

3.Decree of probate:

4.Matrimonial:

5.Admiralty:

6.Insolvency:

7.Legal character:

8.Exceptions:

a)Which is obtained through fraud:

b)Adverse:

c)Want of jurisdiction:

All relevant facts are not admissible but all admissible facts are relevant:

1.Repayment of loan by cheque: Where property is purchased by the amount of cheque, can be produced as
evidence of repayment of loan.

2. Murder: Stay in hotel before commission of offence of murder can be produced as evidence where Court
admits it.

3.Opinion of expert:

4.Conditions:

a)Matter of transaction:

b)Constitution of crime:

c)Purchase of offence weapon:


d)Purchase of vehicle for accident:

e)Direct effect:

f)Conspiracy:

g)Character in criminal cases:

h)Amount of damages:

Modes of proving handwriting under Articles 61, 78, 84, and 164:

1.By writing himself:

2.By calling witnesses:

3.By expert:

4.By comparison:

5.By acquittance:

6.By self harming admission:

7.By statement of deceased:

8.By circumstantial evidence:

a)Thirty years old document:

b)Thirty years attested copy:

c)Official custody:

d)Legitimate custody:

9.By modern devices:

10.Execution of document:

11.Where opposite party refused despite order of Court:

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