QANUN-E-SHAHADAT
ORDER, 1984
CONTENTS
Preamble
PART
- I
RELEVANCY
OF FACTS
CHAPTER
- I
Preliminary
Article:
1.
Short title, extent and commencement 1
2.
Interpretation 1
CHAPTER
II
Of
Witnesses
3.
Who may testify 3
4.
Judges and Magistrates ... 4
5.
Communications during marriage ... 4
6.
Evidence as to affairs of State 5
7.
Official communications 5
8.
Information as to commission of offences ... 5
9.
Professional communications ... 5
10.
Article 9 to apply to interpreters, etc. ... 6
11.
Privilege not waived by volunteering evidence... 6
12.
Confidential communications with legal advisers ... 6
13.
Production of title deed of witness, not party 6
14.
Production of documents which another person, having possession, could refuse
to
produce
... 7
15.
Witness not excused from answering on ground that answer will criminate. 7
16.
Accomplice 7
17.
Competence and number of witnesses ... 7
CHAPTER
III
Of
the Relevancy of Facts
18.
Evidence may be given of facts-in-issue and relevant facts ... g
19.
Relevancy of facts forming part, of some transaction
20.
Facts which are the occasion, cause or effect of facts-in-issue
21.
Motive, preparation and previous or subsequent conduct
22.
Facts necessary to explain or introduce relevant facts
23.
Things said or done by conspirator in reference to common design
24.
When facts not otherwise relevant become relevant
25.
In suits for damages facts tending to enable Court to determine amount are
relevant
26.
Facts relevant when right or custom is in question
27.
Facts showing existence of state of mind or of body, or bodily feelings
28.
Facts bearing on question Whether act was accidental or intentional
29.
Existence of course of business when relevant
ADMISSIONS
30.
Admission defined
31.
Admission by party to proceeding or his agent etc.
32.
Admission by persons whose position must be proved as against party to suit
33.
Admission by persons expressly referred to by party to suit
34.
Proof of admissions against persons making them and by or on this behalf
35.
When oral admissions as to contents of documents are relevant
36.
Admissions in civil cases when relevant
37.
Confession caused by inducement, threat or promise, when irrelevant in criminal
proceeding
38.
Confession to police officer not to be proved
39.
Confession by accused while in custody of police not to be proved against him
40.
How much of information received from accused may be proved
41.
Confession made after removal of impression caused by inducement, threat or
promise,
relevant ... 20
42.
Confession otherwise relevant not to become irrelevant because of promise of
secrecy,
etc.... 20
43.
Consideration of proved confession affecting person making it and others
jointly under
trial
for same offence 20
44.
Accused persons to be liable to cross-examination 21
45.
Admission not conclusive proof but may estop 21
STATEMENTS
BY PERSONS WHO CANNOT BE CALLED AS WITNESSES
46.
Cases in which statement of relevant fact by person who is deed or cannot be
found,
etc.
is relevant, ... 21
(1)
When it relates to cause of death ... 21
(2)
Or is made in course of business ... 22
(3)
Or against interest of maker ... 22
(4)
Or gives opinion as to public right or customs or matters of general interest
22
(5)
Or relates to existence of relationship ... 22
(6)
Or is made in will or deed relating to family affairs ... 22
(7)
Or in document relating to transaction mentioned in Article 28, paragraph (a)
23
(8)
Or is made by several persons and expresses feelings relevant to matter in
question
...
23
47.
Relevancy of certain evidence for proving, in subsequent proceeding, the truth
of facts
therein
stated ... 24
STATEMENTS
MADE UNDER SPECIAL CIRCUMSTANCES
48.
Entries in books of account when relevant ... 25
49.
Relevancy of entry in public record made in performance of duty ... 25
50.
Relevancy of statements in maps, charts and plans ... 25
51.
Relevancy of statements as to fact of public nature, contained in certain Acts
or
notifications
25
52.
Relevancy of statements as to any law contained in law-books ... 25
HOW
MUCH OF A STATEMENT IS TO BE PROVED
53.
What evidence to be given when statement forms part of a conversation,
document,
book
or series of letters or papers 25-26
JUDGMENTS
0F COURTS OF JUSTICE WHEN RELEVANT
54.
Previous judgments relevant to bar a Second suit or trial . ... 26
55.
Relevancy of certain judgments in probate, etc. jurisdiction ... 2
56.
Relevancy and effect of Judgments, orders or decrees, other than those
mentioned
in
Article 55 ... 2
57.
Judgments, etc., other than those mentioned in Articles 54 to 56 when relevant
...
2
58.
Fraud or collusion in obtaining judgment, or incompetence of Court may be
proved
...
2
OPINION
OF THIRD PERSONS WHEN RELEVANT
59.
Opinions of experts
60.
Facts bearing upon opinions of experts ... 2
61.
Opinion as to handwriting when relevant ...
62.
Opinion as to existence of right or custom, when relevant ... 2
63.
Opinion as to usages, tenets, etc., when relevant ...
64.
Opinion on relationship when relevant ...
65.
Grounds of opinion when relevant ...
CHARACTER
WHEN RELEVANT
66.
In civil cases character to prove conduct imputed irrelevant ...
67.
In criminal cases previous good character relevant ...
68.
Previous bad character not relevant, except in reply ...
69.
Character as affecting damages ...
CHAPTER
IV
Of
Oral Evidence
70.
Proof of facts by oral evidence ...
71.
Oral evidence must be direct ...
CHAPTER
V
Of
Documentary Evidence
72.
Proof of contents of documents ... 32
73.
Primary evidence 32
74.
Secondary evidence ... 32
75.
Proof of documents by primary evidence ... 33
76.
Cases in which secondary evidence relating to documents may be given ... 33
77.
Rules as to notice to produce ... 34
78.
Proof of signature and handwriting of person alleged to have signed or written
document
produced 35
79.
Proof of execution of document required by law to be attested ... 35
80.
Proof where no attesting witness found ... 35
81.
Admission of execution by party to attested document ... 35
82.
Proof when attesting witness denies the execution ... 36
83.
Proof of document not required by law to be attested ... 36
84.
Comparison of signature, writing or seal with others admitted or proved ... 36
85.
Public documents ... 36
86.
Private documents ... 30
87.
Certified copies of public documents ... 37
88.
Proof of documents by production of certified copies ... 37
89.
Proof of other public documents ... 37
PRESUMPTION
AS TO DOCUMENTS
90.
Presumption as to genuineness of certified copies ... 36
91.
Presumption as to documents produced as record of evidence ... 38
92,
Presumption as to genuineness of documents kept under any law ... 38
93.
Presumption as to maps or plans made by authority of Government ... 39
94.
Presumption as to collections of laws and reports of decision ... 39
95.
Presumption as to powers-of-attorney ... 39
96.
presumption as to certified copies of foreign Judicial records ... 39
97.
Presumption as to books, maps and charts
98.
Presumption as to telegraphic messages
99.
Presumption as to due execution etc., of documents not produced ...
100.
Presumption as to documents thirty years old ...
101.
Certified copies of documents thirty years old ...
CHAPTER
VI
Of
the exclusion of Oral by Documentary evidence
102.
Evidence of terms of contracts, grants and other disposition of property
reduced to
form
of document ...
103.
Exclusion of evidence of oral agreement
104.
Exclusion of evidence against application of document to existing facts
105.
Evidence as to document unmeaning in reference to existing facts
106.
Evidence as to application of language can apply to one only of several persons
107.
Evidence as to application of language to one of two sets of facts to neither
of which
the
whole correctly applies
108.
Evidence as to meaning of illegible characters etc.
109.
Who may give evidence of agreement varying terms of document
110.
Saving of provisions of Succession Act relating to wills
PART
11
ON
PROOF
CHAPTER
VII
Facts
which need not be proved
111.
Fact judicially noticeable need not be proved ...
112.
Facts of which Court must take judicial notice...
113.
Facts admitted need not be proved
CHAPTER
VIII
Estoppel
114.
Estoppel
115.
Estoppel of tenant and of licensee of person in possession
116.
Estoppel of acceptor of bill of exchange bailee or licensee
PART
III
PRODUCTION
AND EFFECT OF EVIDENCE
CHAPTER
IX
Of
the Burden of Proof
117.
Burden of proof 49
118.
On whom burden of proof lies ... 49
119.
Burden of proof as to particular fact ... 49
120.
Burden of proving fact to be proved to make evidence admissible ... 50
121.
Burden of proving that case of accused comes within exceptions ... 50
122.
Burden of proving fact especially within knowledge ... 50
123.
Burden of proving death of person known to have been alive within thirty years
...
51
124.
Burden of proving that person is alive who has not been heard of for seven
years
...
51
125.
Burden of proof as to relationship in the cases of partners, landlord and
tenant,
principal
and agent ... 51
126.
Burden of proof as to ownership ... 51
127.
Proof of good faith in transactions where one party is in relation of active
confidence
...
51
128.
Birth during marriage conclusive proof of legitimacy
129.
Court may presume existence of certain facts ... 52
CHAPTER
X
Of
the Examination of Witness
130.
Order of production and examination of witnesses ... 53
131.
Judge to decide as to admissibility of evidence 54
132.
Examination-in-chief, etc. ... 54
133.
Order of examinations ... 55
134.
Cross-examination of person called to produce a document ... 55
135.
Witnesses to character . ... 55
136.
Leading questions ... 55
137.
When leading questions must not be asked ... 55
138.
When leading questions may be asked ... 55
139.
Evidence as to matters in writing ... 55
140.
Cross-examination as to previous Statements in writing ... 56
141.
Questions lawful in cross-examination .,. 56
142.
When witness to be compelled to answer ... 56
143.
Court to decide when question shall be asked and when witness compelled to
answer
144.
Question not to be asked without reasonable grounds
145.
Procedure of Court in case of question being asked without reasonable grounds
146.
Indecent and scandalous question
147.
Procedure of Court in cases of defamation, libel and slander
148.
Questions intended to insult or annoy
149.
Exclusion of evidence to contract answer to questions testing veracity
150.
Question by party to his own witness
151.
Impeaching credit of witness
152.
Questions lending to corroborate evidence of relevant fact admissible
153.
Former statements of witness may be proved to corroborate later testimony as to
same
fact ...
154.
When matters may be proved in connection with proved statement relevant under
Article
46 or 47
155.
Refreshing memory
156.
Testimony to facts stated in document mentioned in Article 155
157.
Right of adverse party as to writing used to refresh memory
158.
Production of documents
159.
Giving, as evidence, of document called for and produced on notice
160.
Using, as evidence, of document production of which was refused on notice
161.
Judge's power to put questions or order production . ...
CHAPTER
XI
Of
Improper admission and rejection of Evidence
162.
No new trial for improper admission or rejection of evidence
CHAPTER
XII
Decision
of case on the Basis of Oath
163.
Acceptance or denial of claim on oath
CHAPTER
XIII
Miscellaneous
164.
Production of evidence that has become available because of modern devices,
etc.
165.
Order to override other laws
166.
Repeal
The
QANUN-E-SHAHAOAT
ORDER
(X
OF 1984)
[28th
October. 1984]
Preamble
: Whereas
it is expedient to revise, amend and consolidate the law of evidence so as to
bring it in conformity with the injunctions of Islam as laid down in the Holy
Qur'an and Sunnah ; Now, therefore, in pursuance of the Proclamation of the
fifth day of July, 1977. and in exercise of all powers enabling him in that
behalf, the President is pleased to make the following Order—
PART
- I
RELEVANCY
OF FACTS
CHAPTER
I
PRELIMINARY
1.
Short title, extent and commencement: (1) This order may be called the Qanun-e-
Shahadat.
1984. (2) It extends to the whole of Pakistan and applies to all judicial
proceedings in or before any Court, including a Court Martial, a Tribunal or
other authority exercising judicial or quasi judicial powers or Jurisdiction,
but does not apply to proceedings before an arbitrator. (3) It shall come into
force at once.
2.
Interpretation: (1)
In this Order, unless there is anything repugnant in the subject or context—
(a) "Court" includes ail Judges and Magistrates, and all persons,
except arbitrators, legally authorised to take evidence; (b)
"Document" means any matter expressed or described upon any substance
by means of letters, figures or marks, or by more than one of those means,
intended to be used, or which may be used, for the purpose recording that
matter;
Illustrations
A
writing is a document; Words printed, lithographed or photographed are
documents ; A map or plan Is a document; An inscription on a metal plate or
stone is a document ;
A
caricature is a document. (c) "Evidence" includes; (i) all statements
which the Court permits or requires be made before it by witnesses, m relation
to matters of fact under inquiry ; such statements are called oral evidence ;
and (ii) all documents produced for the inspection of the Court; such documents
are called documentary evidence ; (d) "fact" includes— (i) anything,
state of things, or relation of things capable .of being perceived by the
senses and (ii) any mental condition of which any person is conscious.
Illustrations
(a)
That there are certain objects arranged in a certain order in a certain place,
is a fact.
(b)
That a man heard or saw something. Is a fact.
(c)
That a man said certain words is a fact.
(d)
That a man holds a certain opinion, has a certain intention, acts in good faith
or
fraudulently,
or uses a particular word in a particular sense or is or was at a specified
time conscious of a particular sensation is a fact.
(e)
That a man has a certain reputation is a fact.
(2)
One fact is said to be relevant to another when the one is connected with the
other in any of the ways referred to in the provisions of the Order relating to
the relevancy of facts.
(3)
The expression "facts in issue" includes any fact from which, either
by itself or in
connection
with other facts the existence, non-existence, nature or extent of any right,
liability
or disability, asserted or denied in any suit or proceeding, necessarily
follows.
Explanation:
Whenever, under the provisions of the law for the time being in force relating
to civil procedure, any Court records on issue of fact, the fact to be asserted
or denied in the answer to such issue is a fact in issue.
Illustrations
A
is accused of the murder of B. At his trial the following facts may be in
issue:—
that
A caused B's death ;
that
A had intended to cause B's death ;
that
A had received grave sudden provocation from B ;
that
A, at the time of doing the act which caused B's death, was by reason of
unsoundness
of mind, incapable of knowing its nature.
(4)
A fact is said to be proved when, after considering the matters before it, the
Court
either
believes it to exist, or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the
supposition that it exists.
(5)
A fact is said to be disproved when after considering the matters before it,
the Court
either
believes that it does not exist, or considers its non-existence so probable
that a prudent man ought, under the circumstances of the particular case, to
act upon the supposition that it does not exist.
(6)
A fact is said not to be proved when it is neither proved nor disproved.
(7)
Whenever it is provided by this Order that the Court may presume a fact, it may
ither
regard
such fact as proved, unless and until it is disproved, or may call for proof of
it.
(8)
Whenever it is directed by this Order that the Court shall presume a fact, it
shall regard such fact as proved, unless and until it is disproved.
(9)
When one fact is declared by the Order to be conclusive proof of another, the
Court
shall,
on proof of the one fact, regard the other as proved, and shall not allow
evidence to be given for the purpose of disproving it.
CHAPTER
II
OF
WITNESSES
3.
Who may testify: AH
persons shall be competent to testify unless the Court considers that they are
prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease, whether of
body or mind or any other cause of the same kind: Provided that a person shall
not be competent to testify if he has been convicted by a Court for perjury or
giving false evidence: provided further that the provisions of the first
proviso shall not apply to a person about whom the Court is satisfied that he
has repented thereafter and mended his ways: Provided further that the Court
shall determine the competence of a witness in accordance with the
qualifications prescribed by the injunctions of Islam as laid down in the Holy Qur'an
and Sunnah for a witness, and. where such witness is not forthcoming the Court may
take the evidence of a witness who may be available.
Explanation:
A lunatic is not incompetent to testify unless he is prevented by his lunacy
from
understanding the questions put to him and giving rational answers to them.
4.
Judges and Magistrates: No Judge or Magistrate shall, except upon the special
order of some Court to which he is subordinate, be compelled to answer any
questions as to his own conduct in Court as Judge or Magistrate, or as to
anything which come to his knowledge in Court as such Judge or Magistrate; but
he may be examined as to other matters which occurred in his presence whilst he
was so acting.
Illustrations
(a)
A, on his trial before the Court of Session, says that a deposition was
improperly taken by
B,
the Magistrate. B cannot be compelled to answer questions as to this, except
upon
the
special order of a superior Court.
(b)
A is accused before the Court of Session of having given, false evidence before
B, a
Magistrate.
B cannot be asked what A said. Except upon the special order of the superior Court
(c)
A is accused before the Court of Session of attempting to murder a police
officer whilst on his trial before B, a Sessions Judge. B may be examined as to
what occurred.
5.
Communications during marriage: No person who is or has been married shall be
compelled
to disclose any communication made to him during marriage by any person to whom
he is or has been married; nor shall he be permitted to disclosed any such
communication,
unless the person who made its, or his representative-in-interest,
consents,
except in suits between married persons, or proceedings in which one married person
is prosecuted for any crime committed against the other
6.
Evidence as to affairs of State: No one shall be permitted to give any
evidence
derived
from unpublished official records relating to any affairs of State, except with
the
permission
of the officer at the head of the department concerned, who shall give or
withhold
such permission as he thinks fit. Explanation: In this Article, "official
records relating to the affairs of State" includes documents concerning
industrial or commercial activities carried on directly or indirectly, by the
Federal Government or a Provincial Government or any statutory body or corporation
or company set up or controlled by such Government.
7.
Official communications: No public officer shall be compelled to disclose
communications
made to him in official confidence, when he considers that the public
interests
would suffer by the disclosure. Explanations In this Article, a communications
includes communications concerning industrial or commercial activities carried
on, directly or indirectly, by the Federal Government or a Provincial
Government or any statutory body or corporation or company set up or controlled
by such Government.
8.
Information as to commission of offences: No Magistrate or Police officer shall
be
compelled
to say whence he got any information as to the commission of any offence, and no
Revenue officer shall be compelled to say whence he got any information as to
the commission of any offence against the public revenue. Explanation: In this
Article, "Revenue-officer" means any officer employed in or about the
business of any branch of the public revenue.
9.
Professional communications: No advocate shall at any time be permitted,
unless
with
his client's express consent, to disclose any communication made to him in the
course
and for the purpose of his employment as such advocate, by or on behalf of his
client,
or to state the contents or condition of any document with which he has become
acquainted
in the course and for the purpose of his professional employment, or to
disclose
any advice given by him to his client in the course and for the purpose of such
employment:
Provided that nothing in this Article shall protect from disclosure—
(1)
any such communication made in furtherance of any illegal purpose ; or
(2)
any fact observed by any advocate, in the course of his employment as such
showing that any crime or fraud has been committed since the commencement of
his employment, whether the attention of such advocate was or was not directed
to such fact by or on behalf of his client. Explanation: The obligation stated
in this Article continues after the employment has ceased.
Illustrations
(a)
A, a client, says to B. an advocate "I wish to obtain possession of
property by the use of a forged deed on which I request you to sue" The
communication, being made in furtherance of a criminal purpose is not protected
from disclosure.
(b)
A, being charged with embezzlement, retains B, an advocate, to defend him. In
the course of the proceedings, B observes that an entry has been made in A's
account book
charging
A with the sum said to have been embezzled, which entry was not m the book at the
commencement of his employment. This being a fact observed by B in the course
of his employment showing that a fraud has been committed since the
commencement of the proceedings, it is not protected from disclosure.
10.
Article 9 to apply to interpreters, etc.: The provisions of Article 9 shall
apply to
interpreters,
and the clerks or servants of advocates.
11.
Privilege not waived by volunteering evidence: If any party to a
suit gives evidence therein at his own instance or otherwise, he shall not be
deemed to have consented there by to such disclosure as is mentioned in Article
9, and. if any party to a suit or proceeding calls any such advocate as a
witness, he shall be deemed to have consented to such disclosure only is he
questions such advocate on matters which, but for such question, he would not
be at liberty to disclose.
12.
Confidential communications with legal advisers: No one shall be
compelled to
disclose
to the Court, Tribunal or other authority exercising judicial or quasi-judicial
powers or Jurisdiction any confidential communication which has taken place
between him and his legal professional adviser, unless he offers himself as a
witness, in which case he may be compelled' to disclose any such communications
as may appear to the Court necessary to be known in order to explain any
evidence which he has given, but no others.
13.
Production of title deed of witness, not a party: No witness who is not
a party to a suit shall be compelled to produce his title deeds to any property
or any document in virtue of which he holds any property as pledgee or
mortgagee or any document the production of which might tend to criminate him
unless he has agreed in writing to produce them with the person seeking the
production of such deeds or some person through whom he claims.
14.
Production of documents, which another person, having possession, could
refuse
to produce: No
one shall be compelled to produce documents in his possession, which any other
person would be entitled to refuse to produce if they were in his possession,
unless such last-mentioned person consents to their production.
15.
Witness not excused from answering on ground that answer will criminate: A
witness
shall not be excused from answering any Question as to any matter relevant to
the
matter in issue in any suit or in any civil or criminal proceedings, upon the
ground that the answer to such question will criminate, or may tend directly or
indirectly to criminate, such witness, or that it will expose, or tend directly
or indirectly to expose, such witness to a penalty or forfeiture of any kind: Provided
that no such answer, which a witness shall be compelled to give shall subject him
to any arrest or prosecution, or be proved against him in any criminal
proceeding, except a prosecution for giving false evidence by such answer.
16.
Accomplice; An
accomplice shall be a competent witness against an accused
person,
except in the case of an offence punishable with hadd and a conviction is not
illegal
merely because it proceeds upon the uncorroborated testimony of an accomplice.
17.
Competence and number of witnesses: (1) The competence of a person to testify, and
the number of witnesses required in any case shall be determined in accordance
With the injunctions of Islam as laid down in the Holy Qur'an and Sunnah:"
(2)
Unless otherwise provided in any law relating to the enforcement of Hudood or
any
other
special law: —
(a)
in matters pertaining to financial or future obligations, if reduced to
writing, the
instrument
shall be attested by two men or one man and two women, so that one may
remind
the other, if necessary, and evidence shall be led accordingly ; and (b) in all
other matters, the Court may accept, or act on the testimony of one man or one woman
or such other evidence as the circumstances of the case may warrant.
CHAPTER
111
OF
THE RELEVANCY OF FACTS
18.
Evidence may be given of facts in issue and relevant facts: Evidence may be
given
in any suit or proceeding of the existence or non-existence of every fact in
issue and of such other facts as are hereinafter declared to be relevant and of
ho others.
Explanation:
This Article shall not enable any person to give evidence of a fact, which he is
disentitled to prove by any provision of the law for the time being in force
relating to Civil Procedure.
Illustrations
(a)
A is tried for the murder of B by boating him with a club with the intention of
causing his death. At A's trial the following facts are in issue: — A's beating
B with the club;
A's
causing B's death by such beating; A's Intention to cause B's death.
(b)
A suitor does not bring with him and have in readiness for production at the
first
hearing
of the case a bond on which he relies. This Article does not enable him to
produce the bond or prove its contents at a subsequent stage of the
proceedings, otherwise than in accordance with the conditions prescribed by the
law for the time being in force relating to Civil Procedure.
19.
Relevancy of facts forming part of some transaction: Facts, which though
not in
issue,
are so connected with a fact in issue as to form part of the same transaction,
are
relevant
whether they occurred at the same time and place or at different times and places.
Illustrations
(a)
A is accused of the murder of B by beating him. Whatever was said or done by A
or B or the by-slanders at the beating, or, so shortly before or after it as to
form part of the
transaction,
is a relevant fact. (M A is accused of waging war against Pakistan by taking
part in an armed insurrection in which property is destroyed/ troops are
attacked, and goals are broken open. The occurrence of these facts is relevant,
as forming part of the general transaction, though A may not have been present
at all of them.
(c)
A sues B for a libel contained in a letter forming part of a correspondence.
Letters
between
the parties relating to the subject out of which the libel arose, and forming
part of the correspondence in which it Is contained, are relevant facts, though
they do not contain the libel itself. (d) The question is, whether certain
goods ordered from B were delivered to A. The goods were delivered to several
intermediate persons successively. Each delivery is a relevant fact.
20.
Facts which are the occasion, cause or effect of facts in issue: Facts which are
the
occasion, cause or effect, immediate or otherwise, of relevant facts, or facts
in issue, or which constitute the state of things under which they happened, or
which afforded an opportunity for their occurrence or transaction, are
relevant.
Illustrations
(a)
The question is, whether A robbed B. The facts that, shortly before the
robbery, B went to a fair with money in his possession, and that he showed it
or mentioned the fact that he had it, to third person, are relevant. (6) The
question is whether A murdered B.
Marks
on the ground, produced by a struggle at or near the place where the murder was
committed,
are relevant facts. (c) The question is whether A poisoned B. The state of B's
health before the symptoms ascribed to poison, and habits of B. known to A,
which afforded an opportunity for the administration of poison, are relevant
facts.
21.
Motive, preparation and, previous or subsequent conduct: (1) Any fact is
relevant which shows or constitutes a motive or preparation for any fact in
issue or relevant fact. (2) The conduct of any party, or of any agent to any
party, to any suit or proceeding, in reference to such suit or proceeding, or
in reference to any fact in issue therein or relevant thereto, and the conduct
of any person an offence against whom is the subject of any proceeding, is
relevant, if such conduct influences or is influenced by any fact in issue or relevant
fact, and whether it was previous or subsequent thereto.
Explanation
1: The word "conduct" in this clause does not include statements,
unless
those
statements accompany and explain acts other than statements but this
explanation is not to affect the relevancy of statements under any other
Article of this Order. Explanation 2: When the conduct of any person is
relevant, any statement made to him or in his presence and hearing, which
affects such conduct, is relevant.
Illustrations
(a)
A is tried for the murder of B. The facts that A murdered C, that B knew that A
had murdered C and that B had tried to extort money from A by threatening to
make his knowledge public, are relevant. (b) A sues B upon a bond for the
payment of money. B denies the making of the bond. The fact that, at the time
when the bond was alleged to be made, B required money for a particular purpose
is relevant. (c) A is tried for the murder of B by poison the fact that, before
the death of B. A procured poison similar to that, which was administered to B,
is relevant. (d) The question is whether a certain document is the will of A. The
facts that not long before the date of the alleged will A made inquiry into matters
to which the provisions of the alleged will relate, that he consulted advocates
in reference to making the will, and that he caused drafts of other wills to be
prepared of which he did not approve, are relevant.
(e)
A is accused of a crime. The facts that either before or at the time of, or
after the alleged crime, A provided evidence which would tend to give to the
facts of the case an appearance favourable to himself, or that he destroyed or
concealed evidence or prevented the presence or procured the absence of persons
who might have been witnesses, or suborned persons to give false evidence
respecting it, are relevant.
(f)
The question is whether A robbed B. The facts that, after B was robbed. C said
in A's presence: "the Police are coming to look for the man who robbed
B", and that immediately afterwards A ran away, are relevant. (g) The
question is whether A owes B rupees 10,000. The facts that A asked C to fend
him money, and that D said to C in A's presence and hearing: "I advise you
not to trust A, for he owes B 10,000 rupees", and that A went away without
making any answer are relevant facts. (h) The question is, whether A committed
a crime. The fact that A absconded after receiving a fetter warning him that
inquiry was being made for the criminal, and the contents of the letter are
relevant. (i) A is accused of a crime. The fact that, after the commission of
the alleged crime he absconded, or was in possession of property or the proceeds of property
acquired by the crime, or attempted to conceal things which were or might have
been used in committing it, are relevant. (j) The question is whether A was
ravished.
The
facts that shortly after the alleged rape, she made a complaint relating to the
crime,
the
circumstances under which, and the terms in which, the complaint was made are
relevant.
The fact that, without making a complaint, she said, that she had been ravished
is not relevant as conduct under this Article though it may be relevant as a
dying declaration under Article 49, paragraph (1), or as corroborative evidence
under Article 153. (k) The question is, whether A was robbed. The fact that,
soon after the alleged robbery, he made a complaint relating to the offence, the
circumstances under which, and the terms in which, the complaint was made, are relevant.
The fact that he said he had been robbed without making any complaint, is not
relevant, as conduct under this Article, though it may be relevant, as a dying
declaration under Article 46, paragraph (1). or as corroborative evidence under
Article 153.
22.
Facts necessary to explain or introduce relevant facts: Facts necessary to
explain or introduce a fact in issue or relevant fact, or which support or
rebut an inference suggested by a fact in issue or relevant fact, or which
establish the identity of anything or person whose identity is relevant, or fix
the time or place at which any fact in issue, or relevant fact happened, or
Which show the relation of parties by whom any such fact was transacted, are
relevant in so far as they are necessary for that purpose.
Illustrations
(a)
The question is, whether a given document is the will of A.
The
state of A's property and of his family at the date of the alleged with may be
relevant facts. (b) A sues B for a libel imputing disgraceful conduct to A, B
affirms that the matter alleged to be libellous is true. The position and
relations of the parties at the time when the libel was published may be relevant
facts as introductory to the facts in issue. The particulars of a dispute
between A and B about a matter unconnected with the alleged libel are
irrelevant, though the fact that there was a dispute may be relevant if it
affected the relations between A and B. (c) A is accused of a crime.
The
fact that soon after the commission of the crime, A absconded from his house.
Is
relevant
under Article 21, as conduct subsequent to and affected by facts in issue. The
fact that at the time when he left home he had sudden and urgent business at
the place to which he went is relevant, as tending to explain the fact that he
left home suddenly. The details of the business on which he left are not
relevant, except in so far as they are
necessary
to show that the business was sudden and urgent. (d) A sues B for inducing C to
break a contract of service made by him with A. C, on leaving A's service, says
to A "I am leaving you because B has made me a better offer.". This
statement is e relevant fact as explanatory of C's conduct, which is relevant
as a fact in issue. (e) A, accused of theft, is seen to give the stolen
property to A, who is seen to give it to A's wife. B says, as he delivers
it": "A says you are to hide this." B's statement Is relevant as
explanatory of a fact which is part of the transaction. (f) A is tried for a
riot and is proved to have marched at the head of a mob. The cries of the mob
are relevant as explanatory of the nature of the transaction.
23.
Things said or done by conspirator in reference to common design: Where there is
reasonable ground to believe that two or more persons have conspired together
to commit an offence or an actionable wrong anything said, done or written by
any one of such persons in reference to their common intention, after the time
when such intention was first entertained by any one of them, is a relevant
fact as against each of the persons believed to be so conspiring, as well for
the purpose of proving the existence of the conspiracy, as for the purpose of
showing that any such person was a party to it.
Illustrations
Reasonable
ground exists for believing that A has joined in a conspiracy to wage war
against
Pakistan. The facts that C procured arms in Europe for the purpose of the
conspiracy, C collected money in Peshawar for a like object. D persuaded
persons to join the conspiracy in Karachi. E published writings advocating the
object in view at Multan and F transmitted from Lahore to G at Kabul the money
which C had collected at Peshawar and contents of a letter written by H giving
an account of the conspiracy are each relevant, both to prove the existence of
the conspiracy, and to prove A's complicity in it, although he may have been
ignorant of all of them, and although the persons by whom they were done were strangers
to him and although they may have been taken place before he Joined the conspiracy
or after he left it.
24.
When facts not otherwise relevant become relevant: Facts not otherwise elevant
are
relevant—(1) if they are inconsistent with any fact in issue or relevant fact;
(2)
if by themselves or in connection with other facts they make the existence or nonexistence
of any tacit m issue or relevant fact highly probable or improbable.
Illustrations
(a)
The question it, whether A committed a crime at Peshawar on a certain day.
The
fact that, on that day, A was at Lahore is relevant The fact that, near the
time when the crime was committed. A was at a distance from the place where it
was committed, which would render it highly improbable, though not impossible,
that he committed it is relevant (b) The question is, whether A committed a crime,
The circumstances are such that the crime must have been committed either by,^
B. C or D. Every fact which shows that the crime .could have been committed by
no one else and that it was not committed by either B, C or D, is relevant.
25.
In suits for damages facts tending to enable Court to determine amount are
relevant:
In
suits in which damages are claimed, any fact which will enable the Court to
determine
the amount of damages which ought to be awarded, is relevant.
26.
Facts relevant when right or custom is in question: Where the question is
as to the existence of any right or custom, the following facts are relevant: —
(a) any transaction by which the right or custom in question was created,
claimed, modified, recognized, asserted or denied, or which was inconsistent
with its existence ; (b) particular instances in which the right or custom, was
claimed, recognized or exercised, or in which its exercise was disputed,
asserted or departed from.
Illustrations
The
question is whether A has a right to a fishery. A deed conferring the fishery
on A's
ancestors,
a mortgage of the fishery by A's father, a subsequent grant of the fishery by
A's father, irreconcilable with mortgage, particular instances in which A's
father exercised the right, or in which the exercise of the right was stopped
by A's neighbours are relevant facts.
27.
Facts showing existence of state of mind, or of body, or bodily feeling: Facts
showing
the existence of any state of mind, such as intention, knowledge, good faith,
negligence,
rashness, ill-will or good-will towards any particular person, or showing the
existence
of any state of body or bodily feeling, are relevant, when the existence of any
such
state of mind or body or bodily feeling is in issue or relevant. Explanation 1:
A fact relevant as showing the existence of a relevant state of mind must show
that the state of mind exists, not generally, but in reference to the
particular matter in question.
Explanation
2: But where, upon the trial of a person accused of an offence,. the previous commission
by the accused of an offence is relevant within the meaning of this Article,
the previous conviction of such person shall also be a relevant fact.
Illustrations
(a)
A is accused of receiving stolen goods knowing them to be stolen. It is proved
that he was in possession of a particular stolen article. The fact that, at the
same time, he was in possession of many other stolen articles Is relevant, as
tending to show that he know each and all of the articles of which he was in possession
to be stolen. (b) A is accused of fraudulently delivering to another person a
counterfeit coin which, at the time when he delivered it he knew to be
counterfeit. The fact that at the time of its delivery, A was possessed of a
number of other pieces of counterfeit coin is relevant. The fact that A had
been previously convicted of delivering to another person as genuine a
counterfeit coin knowing it to be counterfeit is relevant. (c) A sues B for
damage done by a dog of B's which B knew to be ferocious. The facts that the
dog had previously bitten X, Y and Z, and that they had made complaints to B
are relevant. (d) The question is whether A, the acceptor of a bill of
exchange, knew that the name of the payee was fictitious. The fact that A had
accepted other bills drawn in the same manner before they could have been
transmitted to him by the payee if the payee had been a real person, is
relevant as showing that A knew that the payee was a fictitious person. (e) A
is accused of defaming B by publishing an imputation intend to harm the
reputation of B. The fact of previous publications by A respecting B, showing
ill-will on the part of A towards B is relevant, as proving A's intention to
harm B's reputation by the particular publication in question. The facts that
there was no previous quarrel between A and B, and that A repeated the matter
complained of as he heard it, are relevant, as showing that A did not intend to
harm the reputation of B.
(f)
A is sued by B for fraudulently representing to B that C, was solvent whereby
B, being
induced
to trust C, who was insolvent, suffered loss. The fact that at the time when A
represented C to be solvent, C was supposed to be solvent by his neighbours and
by persona dealing with him, is relevant, as showing that A made the
representation in good faith. (g) A is sued by B for the price of work done by
B, upon a house of which A is owner, by the order of C. a contractor. A's
defence is that B's contract was with C. The fact that A paid C for the work in
question is relevant, as proving that A did, in good, faith, make over to C the
management of the work in question, so that C was in a position to contract
with B on C's own account, and not as agent for A. (h) A is accused of the
dishonest misappropriation of properly which he had found, and the question is
whether, when he appropriated it, he behaved in good faith that the real owner
could not be found. The fact that public notice of the loss of the property had
been given in the place where A was, is relevant, as showing that A did not in
good faith believe that the real owner of the property could not be found. The
fact that A knew, or had reason to believe, that the notice was given
fraudulently by C. who had heard of the loss of the property and wished to set
up a false claim to it. Is relevant, as showing that the fact that A knew of the
notice did not disprove A's good faith. (i) A is charged with shooting at B
with intent to kill him. In order to show A's intent the fact of A's having
previously shot at B may be proved. (j) A is charged with sending threatening
letters to B. Threatening letters previously sent by A to B may be proved, as
showing the intention of the letters. (k) The question is, whether A has been
guilty of cruelty towards B, his wife.
Expressions
of their feeling towards each other shortly before or after the alleged cruelty
are
relevant facts. (l) The question is whether A's death was caused by poison.
Statements made by A during his illness as to his symptoms are relevant facts. (m)
The question is, what was the state of A's health at the time an assurance on
his life was affected. Statements made by A as to the state of his health at or
near the time in question are relevant facts. (n) A sues B for negligence in
providing him with a carriage for hire not reasonably fit for use. Whereby A
was injured. The fact that B's attention was drawn on other occasions to the
defect of that particular carriage Is relevant.
The fact that B was habitually negligent about the carriages, which he
let to hire, is irrelevant. (o) A is tried for the murder of B by intentionally
shooting him dead. The fact that A on other occasions shot at B is relevant as
showing his intention to shoot B.
The
fact that A was in the habit of shooting at people with Intent to murder them is
irrelevant. (p) A is tried for a crime. The fact that he said something
indicating an intention to commit that particular crime is relevant. The fact
that he said something indicating a general disposition to commit crimes of
that class is irrelevant.
28.
Facts bearing on question whether act was accidental or intentional: When there is a
question whether an act was accidental or intentional, or done with a
particular knowledge or intention, the fact that such act formed part of a
series or similar occurrence; in each of which the person doing the act was
concerned, is relevant.
Illustrations
(a).
A is accused of burning down his house in order to obtain money for which it is
insured. The facts that A lived in several houses successively each of which he
insured, in each of which a fire occurred, and after each of which fires A
received payment from different insurance officers, are relevant, as tending to
show that the fires were not accidental. (b) A is employed to receive money
from the debtors of B. It is A's duty to make entries in a book showing the
amounts received by him. He makes an entry showing that on a particular
occasion he received less than he really did receive.
The
question is whether this false entry was accidental or intentional. The facts
that other entries made by A in the same book are false, and that the false
entry is in each case in favour of A, are relevant. (c) A is accused of
fraudulently delivering to B a counterfeit rupee. The question is, whether the
delivery of the rupee was accidental. he
facts that soon before or soon after the delivery to B, A delivered counterfeit
rupees to C, 0 and E are relevant as showing that the delivery to B was not
accidental.
29.
Existence of course of business when relevant: When there is a question
whether a particular act was done, the existence of any course of business,
according to which it naturally would have been done, is a relevant fact.
Illustrations
(a)
The question is whether a particular letter was despatched. The fact that it
was the ordinary course of business for all letters put in a certain place to be
carried to the post, and that particular letter was put in that place are
relevant. (A) The question is, whether a particular letter reached A. The facts
that it was posted in due course, and was not returned through the Dead Letter Office,
are relevant,
ADMISSIONS
30.
Admission defined: An
admission is a statement, oral or documentary which suggests any inference as
to any fact in issue or relevant fact, and which is made by any of the persons
and under the circumstances, hereinafter mentioned.
31:
Admission by party to proceeding or his agent, etc: Statements made toy a
party to the proceeding, or by an agent to any such party, whom the Court
regards, under the circumstances of the case, as expressly or impliedly
authorized by him to make them, are admissions. (2) Statements made by parties
to suits suing or sued in a representative character, are not admissions,
unless they were made while the party making them held that character. (3)
Statements made by- (a) persons who have any proprietary or pecuniary interest
in the subject matter of the proceeding, and who make the statement in their
character of persons so interest- (b) persons from whom the parties to the suit
have derived their interest in the subjectmatter of the suit, are admissions if
they are made during the continuance of the interest of the persons making the
statements.
32.
Admission by persons whose position must be proved as against party to suit: Statements made by persons
whose position or liability it is necessary to prove as against any party to
the suit, are admissions, if such statements would be relevant as against such persons
in relation to such position or liability in a suit brought by pr against them,
and if they are made whilst the person making them occupies such position or is
subject to such liability.
Illustrations
A
undertakes to collect rents for B. B sues A for not collecting rent due from C
to B.
A
denies that rent was due from C to B. . A statement by C that he owed B rent is
an admission, and is relevant fact as against A, if A denies that C did owe
rent to B.
33.
Admission by persons expressly referred to by party to suit: Statements made by persons
to whom a party to the suit has expressly referred for information in reference
to matter in dispute are admission.
Illustrations
The
question is, whether a horse sold by A to B is sound. A says to B: "Go and
ask C, C knows all about it." C's statement is an admission. 34. Proof
of admissions against persons making them and by or on this behalf:
Admissions
are relevant and may be proved as against the person who makes them or his representative-in-interest;
but they cannot be proved by or oh behalf of the person who makes them or by
his representative in-interest, except in the following cases: —
(1)
An admission may be proved by or on behalf of the person making it, when it is
of such a nature that if the person making it were dead, it would be relevant
as between third persons under Article 46. (2) An admission may be proved by or
on behalf of the person making it, when it consist of a statement of the
existence of any state of mind or body, relevant or in issue, made at or about
the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. (3) An
admission may be proved by or on behalf of the person making it, if it is
relevant otherwise than as an admission.
Illustrations
(a)
The question between A and B is, whether a certain deed or is not forged. A
affirms
that
it is genuine, B that it is forged. A may prove a statement of B that the deed
is genuine, and B may prove a statement by A that the deed is forged ; but A
cannot prove a statement by himself that the deed is genuine, nor can B prove a
statement by himself that the deed Is forged. (b) A, the captain of a ship, is
tried for casting her away. Evidence is given to show that the ship was taken
out of her proper course. A produces a book kept by him in the ordinary course
of his business showing observations alleged to have been taken by him from day
to day and indicating that the ship was not taken out of her proper her proper
course. A may prove these statements, because they would be admissible between
third parties, if he were dead under Article 46 paragraph (2) (c) A is accused
of a crime committed by him at Peshawar. He produces a letter written by him
and dated at Lahore on that day, and bearing the Lahore post-marks of that day.
The statement in the date of the letter is admissible, because if a were dead,
it would be admissible under Article 46, paragraph (2). (d) A is accused of
receiving stolen goods known them to be stolen. He offers to prove that he
refused to sell them below their value. A may prove this statement, though they
are admissible because they are explainatory of conduct influenced by facts in
issue. (e) A is accused of fraudulently having in his possession counterfeit
coin which he knows to be counterfeit. He
offers to prove that he asked a skilful person to examine the coin as he
doubted whether it was counterfeit or not and that that person did examine it
and told him it was genuine. A may prove these facts for the reasons stated in
the last preceding Illustration.
35.
When oral admissions as to contents of documents are relevant: Oral admissions as to
the contents of a document are not relevant unless and until the party
proposing to prove them shows that he is entitled to give secondary evidence of
the contents of such document under the miles hereinafter contained, or unless
the genuineness of a document produced is in question.
36.
Admissions in civil cases, when relevant: In civil cases no admission is
relevant if it is made either upon an express condition that evidence of it is
not to be given, or under circumstances from which the Court can infer that the
parties agreed together that evidence of it should not be given. Explanation:
Nothing in this Article shall be taken to exempt any advocate from giving evidence
of any matter which he may be compelled to give evidence under Article 9.
37.
Confession caused by inducement, threat or promise, when irrelevant in
criminal
proceeding: A
confession made by an accused person is irrelevant in a criminal proceeding, if
the making of the confession appears to the Court to have been caused by any
inducement, threat or promise having reference to the charge against the
accused person, proceeding from a person in authority and sufficient, in the
opinion of the Court, to give the accused person grounds which would appear to
him reasonable, for supposing that by making it he would gain any advantage or
avoid any evil of a temporal nature in reference to the proceedings against
him.
38.
Confession to police officer not to be proved: No confession made to
a police
officer
shall be proved as against a person accused of any offence.
39.
Confession by accused while in custody of police not to be proved against him:
Subject
to Article 10, no confession made by any person whilst he is in the custody of
a
police
officer, unless it be made in the immediate presence of a Magistrate, shall be proved
as against person. Explanation: In this Article, "Magistrate" does
not include the head of a village discharging magisterial function unless such
headman is a Magistrate exercising the powers of a Magistrate under the Code of
Criminal Procedure, 1898 (Act V of 1898).
40.
How much of information received from accused may be proved: When any fact is
deposed to as discovered in consequence of information received from a person
accused
of any offence, in the custody of a police-officer, so much of such
information,
whether
it amounts to a confession or not, as relates distinctly to the fact thereby discovered,
may be proved.
41.
Confession made after removal of impression caused by inducement, threat or promise,
relevant: such
a confession as is referred to in Article 37 is made after the
impression
caused by any such inducement, threat or promise has, in the opinion of the
Court,
been fully removed, it is relevant.
42.
Confession otherwise relevant not to become irrelevant because of promise of
secrecy,
etc.: If
such confession is otherwise relevant, it does not become irrelevant merely
because it was made under a promise of secrecy, or in consequence of a deception
practised on the accused person for the purpose of obtaining it, or when he was
drunk, or because it was made in answer to Questions when he need not have
answered, whatever may have been the form of those questions, or because he was
not warned that he was not bound to make such confession, and that evidence of
it might be given against him : . Provided that the provisions of this Article
shall not apply to the trial of cases under the laws relating to the
enforcement of Hudood.
43.
Consideration of proved confession affecting person making it and others
jointly
under trial for same offence: When more persons than one are being tried
jointly for the same offence and a confession made by one of such persons is
proved,-
(a)
such confession shall be proof against the person , making it and; (b) the
Court may take into consideration such confession as circumstantial evidence against
such other person. Explanation: "Offence'” as used in this Article,
includes the abetment of or attempt to commit the offence.
44.
Accused persons to be liable to cross-examination: All accused persons,
including an accomplice, shall be liable to cross-examination.
Illustrations
(a)
A and B are jointly tried for the murder of C. It is proved that A said:
"B and I murdered C". The Court may consider the effect of this
confession against B.
(b)
A is on his trial for the murder of C. There is evidence to show that C was
murdered by A and B and that B said: "A and I murdered C". This
statement may not be taken into consideration by the Court against A, as B is
not being jointly tried.
45.
Admission not conclusive proof but may estop : Admissions are not
conclusive
proof
of the matters admitted but they may operate as estoppels under the provisions
hereinafter
contained.
STATEMENTS
BY PERSONS WHO CANNOT BE CALLED AS
WITNESSES
46.
Cases in which statement of relevant fact by person who is dead or cannot be
found,
etc., is relevant: Statements,
written or verbal, of relevant facts made by a person who is dead, or who
cannot, be found, or, who has become incapable of giving evidence, or whose
attendance can not be procured without an amount of delay or expense which under
the circumstances of the case appears to the Court unreasonable, are themselves
relevant facts in the following cases:
(1)
When it relates to cause of death: When the statement is made by a person as to
the
cause of his death, or as to any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of that person's death comes
into question. Such statements are relevant whether the person who made them
was or was not, at the time when they were made, under expectation of death,
and whatever may be the nature of the proceeding in which cause of his death
comes into question.
(2)
Or is made in course of business: When the statement is made by such person in
the
ordinary course of business, and in particular when it consists of any entry or
memorandum made by him in books kept in the ordinary course of business.. or in
the discharge of professional duty; or of an acknowledgment Written or signed
by him of the
receipt
of money, goods, securities or property of any kind ; or of a document used in commerce
written or signed by him ; or of the date of a letter or other document usually
dated, written or signed by him.
(3)
Or against interest of maker: When the statement is against the pecuniary
or proprietary interest of the person making it, or when. if true, it would
expose or would have exposed him to a criminal prosecution or to a suit for
damages,
(4)
Or gives opinion as to public right or customs or matters of general interest :
When
the statement gives the opinion of any such person, as to the existence of any public
right or custom or matter of public or general interest, of the existence, of
which it
existed,
he would have been likely to be aware, and when such statement was made before
any controversy as to such right, custom or matter has arisen.
(5)
Or relates to existence of relationship: When the statement relates to the
existence of any relationship by blood, marriage or adoption between persons as
to whose relationship by blood marriage or adoption the person making the
statement had special means of knowledge, and when the statement was made
before question in dispute was raised.
(6)
Or is made in will or deed relating to family affairs: When the statement
relates to the existence of any relationship by blood, marriage or adoption
between persons deceased, and is made in any will or deed relating to the
affairs of the family to which any such deceased person belonged, of in any
family pedigree, or upon any tombstone, family portrait or other things on
which such statements are usually made and when such statement was made before
the question in dispute was raised.
(7)
Or In document relating to transaction mentioned in Article 26, paragraph (a):
When
the statement is contained in any deed, will or other document which relates to
any such transaction as is mentioned in Article 26, paragraph (a).
(8)
Or is made by several persons and expresses feelings relevant to matter in
question:
When
the statement was made by a number of parsons, and expressed
feelings
or impressions on their part relevant to the matter in question;
Illustrations
(a)
The question is, whether A was murdered by B, or A dies of Injuries received in
a
transaction
in the course of which she was ravished. The question is, whether she was
ravished
by B, or The question is, whether A was killed by B under such circumstances
that a suit would lie against B by A's widow. Statements made by A as to the
cause of his or her death, referring respectively to the murder, the rape and
the actionable wrong under consideration are relevant facts, (b) The question
is as to the date of A's birth. An entry in the diary of a deceased surgeon
regularly kept in the course of business stating that on a given day, he
attended A's mother and delivered her of a son, is a relevant fact. (c) The
question is, whether A was in Peshawar on a given day. A statement in the diary
of a deceased solicitor, regularly kept in the course of business, that on a
given day the solicitor attended A at a place mentioned, in Peshawar, for the purpose,
of conferring with him upon specified business, is a relevant fact. (d) The
question is whether a ship sailed from Karachi harbour on a given day. A letter
written by a deceased member of a merchant's firm by which she was chartered to
their correspondents in London, to whom the cargo was consigned, stating that
the ship sailed on a given day from Karachi harbour is a relevant fact. (e) The
question is whether rent was paid to A for certain land. A letter from A's
deceased agent to A saying that he had received the rent on A's account and
held it at A's order, is a relevant fact.
(f)
The question is, whether A end B were legally married, The statement of a
deceased clergyman that he married them under such circumstances, that the
celebration would be a crime is relevant. (g) The question is whether A, a
person who cannot be found, wrote a letter on a certain day. The fact that a
letter written by him is dated on that day is relevant. (h) The question is,
what was the cause of the wreck of a ship.
A protest made by the Captain, whose attendance cannot be procured is a
relevant fact. (i) The question is, whether a given road is a public way. A
statement by A, a deceased headman of the village, that the road was public, is
a relevant fact. (j) The question is, what was the price of grain on a certain
day in a particular market. A statement of the price, made by a deceased, banya
in the ordinary course of his business, is a relevant fact. (k) The question is
whether A, who is dead, was the father of B. A statement by A that B was his
son is a relevant fact. (l) The question is, what was the date of the birth of
A. A letter from A's deceased father to a friend, announcing the birth of A on
a given day, is a relevant fact. (m) The question is, whether and when, A and B
were married.
An
entry in a memorandum-book by C, the deceased father of B, of his daughter's marriage
with A on a given date, is a relevant fact. (n) A sues B for a libel expressed
in a painted caricature expose in a shop window. The question is as to the
similarity of the caricature and its libellous character. The remarks on a
crowd of spectators on these points may be proved.
47.
Relevancy of certain evidence for proving, in subsequent proceeding, the truth of
facts therein stated: Evidence given by a witness in a judicial proceeding or
before any person authorised by law to take it, is relevant for the; purpose of
proving, in a subsequent judicial, proceeding or in a later stage of the same
judicial proceeding, the
truth
of the facts which it states, when the witness is dead or cannot be found, or
is incapable of giving evidence, or is kept out of the way by the adverse
party, or if his presence cannot be obtained without an amount of delay or
expense which, under the circumstances of the case, the Court considers
unreasonable Provided that —the proceeding was between the same parties or
their representatives-in-interest; the adverse party in the first proceeding
had the right and opportunity to cross-examine ; the questions in issue were
substantially the same in the first as in the second proceeding. Explanation: A
criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor
and the accused within the meaning of this Article.
STATEMENTS
MADE UNDER SPECIAL CIRCUMSTANCES
48.
Entries in books of account when relevant: Entries in books of accounts regularly
kept
in the course of business are relevant whenever they refer to a matter into
which the Court has to enquire, but such statements shall not alone be
sufficient evidence, to
charge-any
person with liability.
Illustrations
A
sues B for Rs. 1,000, and dhows entries in his account books showing B to be
indebted to him to this amount The entries are relevant, but are not sufficient
without other evidence, to prove the debt.
49.
Relevancy of entry in public record made in performance of, duty: An entry in any public
or other official book, register or record, stating a fact in issue or relevant
fact, and made by a public servant in the discharge of his official duty, or by
any other person in performance of a duty specialty enjoined by the law of the
country in which such book, register or record is kept, is itself a relevant
fact.
50.
Relevancy of statements in maps, charts and plans: Statements of facts
in issue or relevant facts made in published maps or charts generally offered
for public sale or in
maps
or plans made under the authority of The Federal Government or any Provincial
Government,
as. to matters usually represented or stated in such maps, charts or plans,
are
themselves relevant facts.
51.
Relevancy of statements as to fact of public nature, contained in certain Acts
or notifications: When
the Court has to form an opinion as to the existence of any fact of a. public
nature, any statement of it, made in a recital contained in any Act of the
Central Legislature or of any other legislative authority in Pakistan or in a
Government notification appearing In the official Gazette is a relevant fact.
52.
Relevancy of statements as to any law contained in law-books: When the Court
has
to form an opinion as to a law of any country any statement of such law
contained in a book purporting to be printed or published under the authority,
of the Government of such country and to contain any such law, and any report
of a ruling of the Courts of such country contained in a book purporting to be
a report of such rulings, is relevant.
HOW
MUCH OF A STATEMENT IS TO BE PROVED
53.
What evidence to be given when statement forms part of a conversation,
document,
book or series of letters or papers: When any statement of which evidence is given
forms part of a longer statement, or of a conversation or part of an isolated document,
or is contained in a document which forms part of a book or of a connected series
of letters or papers, evidence shall be given of so much and no more of the statement,
conversation, document, book or series of letters or papers as the Court considers
necessary in that particular case to the full understanding of the nature and effect
of the statement, and of the circumstances under which it was made.
JUDGMENTS
OF COURTS OF JUSTICE WHEN RELEVANT
54.
Previous Judgments relevant to bar a second suit or trial: The existence of any
judgment,
order or decree which by taw prevents any Court from taking cognisance of a
suit
or holding a trial, is a relevant fact when the question is whether such Court
ought to take cognisance of such suit or to hold such trial.
55.
Relevancy of certain judgments in probate etc., jurisdiction: A final judgment, order
on decree of a competent Court in the exercise of probate matrimonial admiralty
or insolvency jurisdiction, which confers upon or takes away from any person
any legal character, or which declares any person to be entitled to any such
character, or to be entitled to any specific thing, not as against any
specified person but absolutely, is relevant when the existence of any such
Legal character, or the title of any such person to any such thing, is
relevant. Such judgment, order or decree is conclusive proof— that any legal
character which it confers accused, at the time when such judgment, order or
decree came into operation ; that any legal character, to which it declares any
such person to be entitled, accrued to Judgment, order or decree declares it to have
accused to that person; that any legal character which It takes away from any
such person ceased at the time from which such judgment, order or decree
declared that it had ceased or should cease; and that anything to which it
declares any person to be so entitled was the property of that person at the
tune from which such judgment, order or decree declares that it had been or should
be his property.
56.
Relevancy and effect of judgments, orders or decrees, other than those
mentioned
in Article 55: Judgments,
orders, or decrees other than those mentioned m
Article
55 are relevant if they relate to matters of, a public nature relevant to the
enquiry ; but such judgments, orders or decrees are not conclusive proof of
that which they state.
Illustrations
A
sues B for trespass or his land, B alleges tile existence of a public right of
way over the land, which A denies. The existence of a decree in favour of the
defendant, in a suit by A against C for a trespass on the same land in which C
alleged the existence of the same right of way, is relevant, but it Is not
conclusive proof that the right of way exists.
57.
Judgments, etc., other than those mentioned in Articles 54 to 56, when
relevant:
Judgments,
orders or decrees, other than those mentioned in Articles 54, 55 and 56 are
irrelevant,
unless the existence of such judgment order or decree is a fact in issue or is
relevant
under some other provision of this Order.
Illustrations
(a)
A and B separately sue C for a libel which reflects upon each of them, C in
each case
says
that the matter alleged to be libellous is true, and the circumstances are such
that it Is probably true In each case, or in neither. A obtains a decree
against C for damages oh the ground that C failed to make out his justification,
the Tact is irrelevant as between B and C. (b) A prosecutes B for adultery with
C, A's wife. B denies that C is A's wife but the Cowl convict B of adultery Afterwards,
C is prosecuted for bigamy in marrying B during A's lifetime. C says that she never
was A's wife. The judgment against B is irrelevant as against C, © A prosecutes
B for stealing a cow from him, B Is convicted A afterwards sues C for the cow
which B had sold to him before his conviction. As between A and C. the judgment
against B is irrelevant. (d) A has obtained a decree for the possession of land
against B. C, B's son, murders A in consequence. The existence of the judgment
is relevant, as showing motive for a crime.
(e)
A is charged with theft and with having been previously convicted of theft. The
previous conviction is relevant as a fact in issue. (f) A is tried for the
murder of B. The fact that B prosecuted A for libel and that A was convicted
and sentenced, is relevant and under Article 21 as showing the motive for the fact
in issue.
58.
Fraud or collusion in obtaining judgment, or incompetence of court may be
proved:
Any
party to a suit or other proceeding may show that any judgment, order or decree
which is relevant under Articles 54, 55 or 56, and which has bean proved by the
adverse party, was delivered by a Court not competent to deliver it, or was
obtained by fraud or collusion.
OPINION
OF THIRD PERSONS WHEN RELEVANT
59.
Opinions of experts: When
the Court has to form an opinion upon a point of foreign law, or of science/or
art, or as to identity Of hand-writing or finger impressions; he opinions upon that point of persons
specially skilled in such foreign law science or art, or in questions as to
identity of hand-writing or finger impressions-are relevant facts.
Such
persons are called experts.
Illustrations
(a)
The question is, whether the death of A was caused by poison The opinion of
experts as to the symptoms produced by the poisoned which A is supposed to have
died, are relevant. (6) 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 apt, or that he was doing what was either wrong or contrary to
law. Thee opinions of experts upon 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 either wrong or contrary to law are
relevant. (c) 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 opinions of experts on the question whether the two documents were
written by the same person or by different persons are relevant.
60.
Facts bearing upon opinions of experts: Facts not otherwise relevant, are relevant if
they support or are inconsistent with the opinions of experts, when such
opinion are relevant.
Illustrations
(a)
The question is, whether A was poisoned by a certain poison The fact that other
persons, who were poisoned by that poison, exhibited certain symptoms which
experts affirm or deny to be the symptoms that poison, is relevant. (b) The
question is, whether an obstruction to a harbour is caused by a certain sea wall.
The fact that other harbours similarly situated in other respects, but where
there were no such sea-walls, began to be obstructed at about the same time, is
relevant.
61.
Opinion as to hand-writing when relevant: When the Court has to form an opinion as
to the person by whom any document was written or signed, the opinion of any
parson acquainted with the hand-writing of the person by whom it is supposed to
be written or signed that it was or it was not written or signed by that
person, is relevant fact. Explanation: A person is said to be acquainted with
the hand-writing of another person when he has seen that person write, or when
he has received documents purporting to be written by that person in answer to
documents written by himself or under his authority and addressed to that
person, or when, in the ordinary course of business, documents purporting to be
written by that person have been habitually submitted to him. -.
Illustrations
The
question is whether a given letter is m the handwriting of A, a merchant in
London.
B
is a merchant in Peshawar, who has written letters addressed to A and received
letters purporting to be written by him, C is B's clerk, whose duty it was to
examine and file B’s correspondence. D is B's broker, to whom B habitually
submitted the letters purporting to be written by A for the purpose of advising
him thereon. ' The opinion of B, C and D on the question whether the letter is
in the handwriting of A are relevant though neither B, C or D ever saw A write.
62.
Opinion as to existent of right or custom, when relevant: When the Court has to
form
an opinion as to the existence of any general custom or right, the opinion, as
to the
existence
of such custom or right, of persons who would be likely to know of its
existence if it existed, are relevant. Explanation: the expression
"general custom or right" includes customs or rights common to any
considerable class of persons.
Illustrations
The
right of the villagers of a particular village to use the water of a particular
well is a general right within the meaning of this Article.
63.
Opinion as to usages, tenets, etc., when relevant: When the Court has to
form an opinion as to— the usages and tenets of any body of man or family, the
constitution and government of any religious or charitable foundation, or the
meaning of words or terms used in particular districts or by particular classes
of people, the opinions of persons haying special means of knowledge thereon,
are relevant facts.
64.
Opinion on relationship when relevant: When the Court has to form an opinion as
to
the relationship of one person to another, the opinion, expressed by conduct,
as to the existence .of such relationship, of any person who, as a member of
the family or otherwise, has special means of knowledge on the subject, is a
relevant fact: Provided that such opinion shall not be sufficient to prove a
marriage in proceedings under the Divorce Act 1869 (IV of 1869), or in
prosecutions under Section 494 or 495 of the Pakistan Penal Code (Act XIV of
1860).
Illustrations
(a)
The question is whether A and B were married. The fact they were usually
received and treated by their friends as husband and wife, it relevant. (b) The
question is, whether A was the legitimate son of B. The fact that A was always treated
as such by members of the family is relevant.
65.
Grounds of opinion when relevant: Whenever the opinion of any living person is
relevant,
the grounds on which such opinion is based are also relevant.
Illustrations
An
expert may give an account of experiments performed by him for the purpose of forming
his opinion.
CHARACTER
WHEN RELEVANT
66.
In civil cases character to prove conduct imputed irrelevant: In civil cases the
fact that the character of any person concerned is such as to render probable
or improbable any conduct imputed to him is irrelevant, except in so far as
such character appears from facts otherwise relevant.
67.
In criminal cases previous good character relevant: In criminal
proceedings the
fact
that the person accused is of a good character is relevant.
68.
Previous bad character not relevant, except in reply: In criminal
proceedings the
fact
that the accused person has a bad character is irrelevant, unless evidence has
been given that he has a good character, in which case it become relevant. Explanation
1: This Article does not apply to cases in which the bad character of any person
is itself a fact in issue. Explanation 2: A previous conviction is relevant as
evidence of bad character.
69.
Character as affecting damages: In civil cases the fact that the character of
any person is such as to affect the amount of damages, which he ought to
receive, is relevant. Explanation: In Articles 66, 67, 68 and 69, the word
"character" includes both reputation and disposition; but except as
provided in Article 68, evidence may be given only of general reputation and
general disposition, and not of particular acts by which reputation or
disposition were shown.
CHAPTER
IV
OF
ORAL EVIDENCE
70.
Proof of facts by oral evidence: All facts, except the contents of documents,
may be proved by oral evidence.
71.
Oral evidence must be direct: Oral evidence must, in all cases whatever be
direct,
that
is to say— If it refers to a fact, which could be seen, it must be the evidence
of a witness who says he saw it; If it refers to a fact, which could be heard,
it must be the evidence of a witness who says he heard it; If it refers to a
fact, which could be perceived by any other sense or in any other manner, it must
be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it
must be the evidence of the person who holds that opinion on those grounds: Provided
that the opinions of experts expressed in any treaties commonly offered for
sale and the grounds on which such opinions are held, maybe proved by the
production of such treaties if the author is dead, or cannot be found, or has
become incapable of giving evidence, or cannot be called as a witness without
an amount of delay or expense which the Court regards as unreasonable: Provided
further that, if oral evidence refers to the existence or condition of any
material thing other than a document, the Court may, if it thinks fit, require
the production of such material thing for its inspection: Provided further
that, if a witness is dead, or can not be found or has become incapable of giving
evidence, or his attendance cannot be procured without an amount of delay or expense
which under the circumstances of the case the Court regards as unreasonable, a party
shall have the right to produce, “shahada ala al-shahadah” by which a witness
can appoint two witnesses to depose on his behalf, except in the case of Hu dood.
CHAPTER
V
OF
DOCUMENTARY EVIDENCE
72.
Proof of contents of documents: The contents of documents may be proved
either by primary or by secondary evidence.
73.
Primary evidence: "Primary
evidence" means the document itself produced for the
inspection
of the Court. Explanation 1: Where a document is executed in several parts,
each part is primary evidence of the document. Where a document is executed in
counterpart, each counterpart being executed by one or some of the parties
only, counterpart is primary evidence as against the parties executing it. Explanation 2: Where a number of documents are
all made by one uniform process, as in the case of printing, Lithography or
photography, each is primary evidence of the contents of the rest; but where
they are all copies of a common original they are not primary evidence of the
contents of the original
Illustrations
A
person is shown to have been in possession of a number of placards, all printed
at one time from one original. Any one of the placards is primary evidence of
the contents of any other, but no one of them is primary evidence of the
contents of the original.
74.
Secondary evidence: "Secondary
evidence means and includes—
(1)
certified copies given under the provisions hereinafter contained ; (2) copies
made from the original by mechanical process which is themselves insure the accuracy
of the copy, and copies compared with such copies ; (3) copies made from or
compared with the original. (4) counterparts of documents as against the
parties who did not execute them ; (5) oral accounts of the contents of a
document given by some person who has himself seen it.
Illustrations
(a)
A photograph of an original is secondary evidence of its contents though the
two have not been compared if it is proved that the thing photographed was the
original. (b) A copy, compared with a copy of a letter made by a copying
machine is secondary evidence of the contents of the letter, if it is shown
that the copy made by the copying machine was made from the original. (c) A
copy transcribed from a copy, but afterwards compared with the original, is secondary
evidence; but the copy not so compared is not secondary evidence of the original,
although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral
account of a photograph or machine-copy of the original, is secondary evidence
of the original.
75.
Proof of documents by primary evidence: Documents must be proved by primary
evidence
except in the cases hereinafter mentioned.
76.
Cases in which secondary evidence relating to documents may be given:
Secondary
evidence may be given of the existence, condition or contents of a document
in
the following cases: — (a) when the original is shown or appears to be in the
possession or power of the person against whom the document is sought to be
proved, or of any person out of reach of, or not subject to, the process of the
Court, or of any person legally bound to produce it, and when after the notice
mentioned in Article 77 such person does not produce it; (b) when the
existence, condition or contents of the original have been proved to beadmitted
in writing by the person against whom it is proved or by his
representative-ininterest; (c) when the original has been destroyed or lost, or
when the party offering evidence of its contents cannot, for any other reason
not arising from his own default or neglect, produce it in reasonable time ; (d)
when, due to the volume or bulk of the original, copies thereof have been made
by means of microfilming or other modern devices ; (e) when the original is of
such a nature as not to be easily movable ; (f) when the original is public
document within the meaning of Article 85 ; (g) when the original is a document
of which a certified copy is permitted by this Order, or by any other law in
force in Pakistan, to be given in evidence ; (h) when the originals consist of
numerous accounts or other documents which cannot conveniently be examined in
Court, and the fact to be proved is the general result of the whole collection
; (i) when an original document forming part of a judicial record is not
available and only a certified copy thereof is available, certified copy of
that certified copy shall also be admissible as a secondary evidence. In cases
(a), (c), (d) and (e), any secondary evidence of the contents of the document
is admissible. In case (b), the written admission is admissible. In case (f) or
(g), certified copy of the document, but no other kind of secondary evidence, is
admissible. In case (h), evidence may be given as to the general result of the
documents by any person who has examined them and who is skilled in the
examination of such document.
77.
Rules as to notice to produce: Secondary evidence of the contents of the documents
referred to in Article 76, paragraph (a), shall not be given unless the party proposing
to give such secondary evidence has previously given to the party in whose possession
or power the document is, or to his advocate, such notice to produce it as is prescribed
by Law and, if no notice is prescribed by law, then such notice as the Court considers
reasonable under the circumstances of the case: Provided that such notice shall
not be required in order to render secondary evidence admissible in any of the
following cases, or in any other ease in which the Court thinks fit to dispense
with it: — (1) when the document to be proved is itself a notice ; (2) when,
from the nature of the case, the adverse party must know that he will be required
to produce it; (3) when it appears or is proved that the adverse party has
obtained possession of the original by fraud or force ; (4) when the adverse
party or his agent has the original in Court ; (5) when the adverse party or
his agent has admitted the loss of the document ; (6) when the person in
possession of the document is out of reach of, or not subject to, the process
of the Court.
78.
Proof of signature and handwriting of person alleged to have signed or written
document
produced: If
a document is alleged to be signed or to have been written wholly or in part by
any person, the signature or the handwriting of so much of the document as is
alleged to be in that person's handwriting must be proved to be in his handwriting.
79.
Proof of execution of document required by law to be attested: If a document is
required
by law to be attested, it shall not be used as evidence until two attesting witnesses
ot least have been called for the purpose of proving its execution, if there be
two attesting witnesses alive, and subject to the process of the Court and
capable of given Evidence. Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any document, not being a will,
which has been registered in accordance with the provisions of the Registration
Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports
to have been executed is specifically denied.
80.
Proof where no attesting witness found: If no such attesting witness can be found, it
must be proved that the witnesses have either died or cannot be found and that
the document was executed by the person who purports to have done so.
81.
Admission of execution by party to attested document: The admission of a
party to an attested document of its execution by himself shall be sufficient
proof of its execution as against him, though it be a document required by law
to be attested.
82. Proof when attesting witness denies the
execution: If the attesting witness denies or does not, recollect the
execution of the document, its execution may be proved by other evidence.
83.
Proof of document not required by law to be attested: An attested document
not
required
by law to be attested may be proved as if it was unattested.
84.
Comparison of signature, writing or seal with others admitted or proved: (1) In
order
to ascertain whether a signature, writing or seal is that of the person by whom
it purports to have been written or made any signature writing or seal admitted
or proved to the satisfaction of the Court to have been written or made by that
person may be compared with the one which is to be proved, although that
signature, writing or seal has not been produced or proved for any other
purpose. (2) The Court may direct any person present in Court to write any
words or figures for the purpose of enabling the Court to compare the words or
figures so written with any words or figures alleged to have been written by
such person. (3) This Article applies also, with any necessary modifications,
to finger-impressions.
85.
Public documents: The
following documents are public documents: —
(1)
documents forming the acts or records of the acts : (i) of the sovereign
authority ;
(ii)
of official bodies and tribunals, and (iii) of public officers, legislative,
Judicial and executive of any part of Pakistan or of a foreign country. (2)
public records kept in Pakistan of private documents. (3) documents forming
part of the records of judicial proceedings ; (4) documents required to be
maintained by a public servant under any law ; and (5) registered documents the
execution whereof is not disputed.
86.
Private documents: All
other documents are private.
87.
Certified copies of public documents: Every public officer having the custody of a
public
document, which any person has a right to inspect, shall give that person on demand
a copy of it on payment of the legal fees therefore, together with a
certificatewritten at the foot of such copy that it is a true copy of such
document or part thereof, as the case may be, and such certificate shall be
dated and subscribed by such officer with his name and his official title, and
shall be sealed, whenever such officer is authorized by law to make use of a
seal, and such copies so certified shall be called certified copies. Explanation:
Any officer, who, by the ordinary course of official duty, is authorized to deliver
such copies, shall be deemed to have the custody of such documents within the meaning
of this Article.
88.
Proof of documents by production of certified Copies: Such certified copies
may be produced in proof of the contents of the public documents or parts of
the public
documents
of which they purport to be copies.
89.
Proof of other public documents: The following public documents may be proved
as follows: — (1) Acts orders or notifications of the Federal Government in any
of its departments, or of any Provincial Government or any department of any
Provincial Government—by the records of the departments, certified by the heads
of those departments respectively, or by any document purporting to be printed
by order of any such Government; (2) the proceedings of the Legislatures,—by
the Journal of those bodies respectively, or by published Acts or abstracts, by
copies purporting to be printed by order of the Government concerned ; (3) the
Acts of the Executive or the proceedings of the Legislature of a foreign
country,— by journals published by their authority, or commonly received in
that country as such or by a copy certified under the seal of the country or sovereign
or by a recognition thereof in some Federal Act; (4) the proceedings of a
municipal body in Pakistan,—by a copy of such proceedings, certified by the
legal keeper thereof, or by a printed book purporting to be published by the authority
of such body ; (5) public documents of any other class in a foreign country,—by
the original, or by a copy certified by the legal keeper thereof, with a
certificate under the seal of a notary public, or of a Pakistan Consul or
diplomatic agent, that the copy is duly certified by the officer having the
legal custody of the original, and upon proof of the character of the document according
to the law of foreign country.
PRESUMPTION
AS TO DOCUMENTS
90.
Presumption as to genuineness of certified copies: (1) The Court shall
presume
every
document purporting to be a certificate, certified copy or other document,
which is
by
law declared to be admissible as evidence of any particular fact and which
purports to
be
duly certified by any officer of the Federal Government or a Provincial
Government to
be
genuine:
Provided
that such document is substantially in the form and purports to be executed in
the
manner directed by law in that behalf.
(2)
The Court shall also presume that any officer by whom any such document
purports to
be
signed or certified, held when he signed it, the official character which he
claims in
such
document.
91.
Presumption as to documents produced as record of evidence: Whenever any
document
is produced before any Court, purporting to be a record or memorandum of the
evidence,
or of any part of the evidence, given by a witness in a judicial proceeding Or
before
any officer authorized by law to take such evidence or to be a statement or
confession
by any prisoner or accused person, taken in accordance with law, and
purporting
to be signed by any Judge or Magistrate or by any such officer as aforesaid,
the
Court shall presume— that the document is genuine; that any statements as to
the circumstances under which it was taken, purporting to be made by the person
signing it are true and that such evidence, statement or confession was duly
taken.
92.
Presumption as to genuineness of documents kept under any law: The Court
shall
presume the genuineness of every document purporting to be a document directed
by
any law to be kept by any person, if such document is kept substantially in the
form
required
by law and is produced from proper custody.
93.
Presumption as to maps or plans made by authority of Government: The Court
shall
presume that map or plans purporting to be made by the authority of the Federal
Government or any Provincial Government were so made, and are accurate; but
maps or plans made for the purposes of any cause must be proved to be accurate.
94.
Presumption as to collections of laws and reports of decision: The Court shall
presume
the genuineness of every book purporting to be printed or published under the
authority
of the Government of any country, and to contain any of the law of that country,
and of every book purporting to contain reports of decisions of the Courts of
such country.
95.
Presumption as to powers-of-attorney: The Court shall presume that every document
purporting to be a power-of -attorney, and to have been executed before, and authenticated
by, a notary public, or any Court, Judge, Magistrate, Pakistan Consul or Vice-Consul,
or representative of the Federal Government, was so executed and authenticated.
96.
Presumption as to certified copies of foreign judicial records: (1) The Court may presume
that any document purporting to be a certified copy of any judicial record of
any country not forming part of Pakistan is genuine and accurate, if the
document purports to be certified in any manner which is certified by any
representative of the Federal Government in or for such country to be the
manner commonly in use in that country for the certification of copies of
Judicial records. (2) An officer who with respect to any territory or place not
forming part of Pakistan, is a political Agent therefore, as defined in Section
3, clause (40), of the General Clauses Act, 1897(X of 1897) shall for the
purposes of clause (1), be deemed to be a representative of the Federal
Government in or for the country comprising that territory or place.
97.
Presumption as to books, maps and charts: The Court may presume that any book to
which it may refer for information on matters of public or general interest,
and that any published map or chart, the statements of which are relevant facts
and which is produced for its inspection, was written and published by the
person, and at the time and place, by whom or at which it purports to have been
written or published.
98.
Presumption as to telegraphic messages: The Court may presume that message, forwarded
from a telegraph office to the person to whom such message purports to be addressed,
corresponds with a message delivered for transmission at the office from which
the message purports to be sent; but the Court shall not make any presumption
as to the person by whom such message was delivered for transmission.
99.
Presumption as to due execution, etc., of document not produced: The Court
shall
presume that every document called for and not produced after notice to produce
was
attested, stamped and executed in the manner required by law.
100.
Presumption as to documents thirty years old: Where any document,
purporting or proved to be thirty years old, is produced from any custody which
the Court in the particular case considers proper, the Court may presume that
the signature and every other part of such document, which purports to be in
the handwriting of any particular person, is in that person's handwriting, and
in the case of a document executed or attested, that it was duly executed and
attested by the persons by whom it purports to be executed and attested. Explanation:
For the purposes of this Article and Article 92, documents are sold to be in proper
custody if they are in the place in which, and under the care of the person
with whom, they would naturally be, but no custody is improper if it is proved
to have had, a legitimate origin, or if the circumstances of the particular
case are such as to render such an origin probable.
Illustrations
(a)
A has been in possession of landed property for a long time. He produces from
his custody deeds relating to the land, showing his titles to it. The custody
is proper. (b) A produce deeds relating to landed property of which he is the
mortgage. The mortgagor is in possession. The custody is proper. (c) A, a
connection of B, produces deeds relating to lands in B’s possession which were deposited
with him by B for safe custody. The custody is proper.
101.
Certified copies of documents thirty years old: The provisions of
Article 100 shall apply to such copy of a document referred to in that Article
as is certified in the manner provided in Article 87 and is not less than
thirty years old, and such certified copy may be produced in proof of the
contents of the document or part of the document of which purports to be a
copy.
CHAPTER
VI
OF
THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE
102.
Evidence of terms of contracts, grants and other disposition of property reduced
to form of document: When
the terms of a contract, or of a grant, or of any other disposition of property,
have been reduced to the form of a document, and in all cases in which any
matter is required by law to be reduced to the form of a document, no evidence
shall be given in proof of the terms of such contract, grant or other
disposition of property, or of such matter, except the document itself, or
secondary evidence of its contents in cases in which secondary evidence is
admissible under the provisions hereinbefore contained.
Exception
1: When a public officer is required by law to be appointed in writing, and
when it is shown that any particular person has acted as such officer, the
writing by which he is appointed need not be proved.
Exception
2: Wills admitted to probate in Pakistan may be proved by the probate.
Explanation
1: This Article applies equally to cases in which the contracts, grants or
dispositions
of property referred to are contained in one document and to cases in which they
are contained in more documents that one.
Explanation
2: Where there are more originals than one, one original only need be proved.
Explanation
3: The statement, in any document whatever, of a fact other than the facts
referred
to in this Article, shall not preclude the admission of oral evidence as to the
same fact.
Illustrations
(a)
If a contract be contained in several letters, all the letters in which it is
contained must be proved.
(b)
If a contract is contained in a bill of exchange, the bill of exchange must be
proved.
(c)
If a bill of exchange is drawn in a set of three, one only deed be proved.
(d)
A contracts, in writing with B, for the delivery of indigo upon certain terms.
The contract mentions the fact that B had paid A the price of other indigo
contracted for verbally on another occasion. Oral evidence is offered that no
payment was made for the other indigo. The evidence is admissible.
(e)
A gives B a receipt for money paid by B. Oral evidence is offered of the
payment. The evidence is admissible.
103.
Exclusion of evidence of oral agreement: When the terms of any such contract, grant
or other disposition of property, or any matter required by law to be reduced
to the
form
of a document, have been proved according to the last Article, no evidence of
any oral agreement or statement shall be admitted, as between the parties to
any such instrument or their representatives-in-interest, for the purpose of
contradicting, varying, adding to or subtracting from, its terms : Proviso (1);
Any fact may be proved which would invalidate any document, or which would entitle
any person to any decree or order relating thereto; such as fraud, intimidation
illegality, want of due execution, want of capacity in any contracting party,
want or failure of consideration, or mistake in fact or law.
Proviso
(2): The existence of any separate oral agreement as to any matter on which a document
is silent, and which is not inconsistent with its terms may be proved. In considering
whether or not this proviso applies, the Court shall have regard to the degree of
formality of the document.
Proviso
(3): The existence of any separate oral agreement constituting a condition
precedent
to the attaching of any obligation under any such contract, grant or
disposition of property may be proved.
Proviso
(4): The existence of any distinct subsequent oral agreement to rescind or
modify any such contract, grant, or disposition of property, may be proved,
except in cases in which such contract, grant or disposition of property is by
law required to be in writing, or has been registered according to the law in
force for the time being as to the registration of documents.
Proviso
(5): Any usage or custom by which incidents not expressly mentioned in any
contract
are usually annexed to contracts of that description, may be proved: Provided
that the annexing of such incident would not be repugnant to, or inconsistent with
the express terms of the contract.
Proviso
(6): Any fact may be proved which shows in what manner the language of a
document
is relied to existing facts.
Illustrations
(a)
A policy of insurance is affected on goods "in ships from Karachi to
London". The goods are shipped in a particular ship, which is last. The
fact that that particular ship was orally excepted from the policy cannot be
proved.
(b)
A agrees absolutely in writing to pay B, Rs. 1,000 on the first March, 1984.
The fact
that
at the same time, an oral agreement was made that the money should not be paid
till the thirty-first March cannot be proved.
(c)
An estate called "the Khanpur Estate" is sold by a deed, which
contains a map of the
property
sold. The fact that land not included in the map had always been regarded as
part
of the estate and was meant to pass by the deed cannot be proved.
(d)
A enters into a written contract with B to work certain mines the property of
B, upon
certain
terms. A was induced to do so by a misrepresentation of B's as their value.
This
fact
may be proved.
(e)
A institutes a suit against B for the specific performance of a contract, and
also prays
that
the contract may be reformed as to one of its provisions, as that provision was
inserted
in it by mistake. A may prove that such a mistake was made as would by law
entitle
him to have the contract reformed.
(f)
A orders goods of B by a letter in which nothing is said as to the time of
payment, and excepts the goods on delivery. B sues A for the price. A may show
that the goods were supplied on credit for a term still unexpired.
(g)
A sells B a horse and verbally warrants him sound. A gives B a paper in these
words
"Bought
of a horse for Rs. 500". B may prove the verbal warranty.
(h)
A hires lodging of B, and gives a card on which is written "Rooms, Rs. 200
a month." A may prove a verbal agreement that these terms were to include
partial board.
A
hires lodging of B for a year, and regularly stamped agreement, drawn up by an advocate,
is made between them. It is silent on the subject of board. A may not prove
that board was included in the terms verbally.
(i)
A applies to B for a debt due to A by sending a receipt for the money. B keeps
the receipt and does not send the money. In a suit for the amount A may prove
this.
(j)
A and B make a contract in writing to take effect upon the happening of a
certain contingency. The writing is left with B, who sues A upon it. A may show
the circumstances under which it was delivered.
104.
Exclusion of evidence against application of document to existing facts: When language used in
a document is plain in itself, and when it applied accurately to existing facts,
evidence may not be given to show that it was not meant to apply to such facts.
Illustrations
A
sells to B by deed, "my Estate at Rangpur, containing 100 bighas". A
has an Estate at
Rangpur
containing 100 bighas. Evidence may not be given of the fact that the Estate meant
to be sold was one situated at a different place and of a different size.
105.
Evidence as to document unmeaning in reference to existing facts: When language used in
a document is plain in itself, but is unmeaning in reference to existing
facts
evidence may be given to show that it was used in a peculiar sense.
Illustrations
A
sells to B by deed, "my house in Karachi". A had no house In Karachi,
but it appears that he had a house at Keamari of which B had been in possession
since the execution of the deed. These facts may be proved to show that the
deed related to the house at Keamari.
106.
Evidence as to application of language which can apply to one only of several
persons:
When
the facts are such that the language used might have been meant to apply to any
one, and could not have been meant to apply to more than one, of several persons
or things, evidence may be given of facts which show which of those persons or things
it was intended to apply to.
Illustrations
(a)
A agrees to sell to B, for Rs. 1,000, "my white horse". A has two
white horses. Evidence may be given of facts which shows which of them was
meant.
(b)
A agrees to accompany B to Hyderabad. Evidence may be given of facts showing
whether
Hyderabad in the Dekkhan or Hyderabad Sind was meant.
107.
Evidence as to application of language to one of two sets of facts to neither
of which the whole correctly applies: When the language used applies partly to one
set of existing facts, and partly to another set of existing facts, but the
whole of it does not apply correctly to either evidence may be given to show to
which of the two it was meant to apply.
Illustrations
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 had land in the occupation of Y,
but it is not at X. Evidence may be given of facts; which he meant to sell.
108.
Evidence as to meaning of illegible character etc.: Evidence may be given
to show the meaning of illegible or not commonly intelligible characters, of
foreign, obsolete technical, local and provincial expressions, of abbreviation
and of words used in a peculiar sense.
Illustrations
A,
a sculptor, agrees to sell to B, " All may mods." A has both models
and modelling tools. Evidence may be given to show which he meant to sell.
109.
Who may give evidence of agreement varying terms of document : Persons who are not parties
to a document, or their representatives-in-interest, may give evidence of any
facts tending to show a contemporaneous agreement varying the terms of the document.
Illustrations
A
and B make a contract in writing that B shall sell A certain cotton, to be paid
for on delivery. At the same time they make an oral agreement that three months
credit shall be given to A. This could not be shown as between A and B, but it
might be shown by C, if it affected his interest.
110.
Saving of provisions of Succession Act relating to wills: Nothing in this
Chapter contained shall be taken to affect any of the provisions of the
Succession Act, 1925 (XXXIX of 1925) as to the construction of wills.
PART
II
ON
PROOF
CHAPTER
VII
FACTS
WHICH NEED NOT BE PROVED
111.
Fact Judicially noticeable need not be proved: No fact of which the
Court will take judicial notice need be proved.
112.
Facts of which Court must take judicial notice: (1) The Court shall
take judicial
notice
of the following facts: —
(a)
All Pakistan laws;
(b)
Articles of War for the Armed Forces;
(c)
The course of proceeding of the Central Legislature and any Legislature
established
under
any law for the time being in force in Pakistan;
(d)
The seals of all the Courts in Pakistan and of all Courts out of Pakistan
established by the authority of the Federal Government or the Government
representative, the seals of Court of Admiralty and Maritime Jurisdiction and
of Notaries Public and all seals which any person is authorised to use by any
Act or Regulation having the force of law in Pakistan ;
(e)
The accession to office, names, titles, functions and signatures of the persons
filling for the time being any public office in Pakistan, if the fact of their
appointment to such office is notified in the official Gazette;
(f)
The existence, title and national flag of every State of Sovereign recognised
by the
Federal
Government;
(g)
The divisions of time, the geographical divisions of the world, and public
festivals, facts and holidays notified in the official Gazette;
(h)
The territories under the dominion of Pakistan;
(i)
The commencement, continuance and termination of hostilities between Pakistan
and any other State or body of persons;
(j)
The names of the members and officers of the Court and of their deputies and Subordinate
officers and assistants, and also of all officers acting in execution of its process,
and of all advocates and other persons authorized by law to appear or act
before it;
(k)
The rule of the road on land or at sea.
(2)
In all cases referred to in clause (1), and also on all matters of public
history, literature, science or art, the Court may resort for its aid to
appropriate books or documents of reference.
(3)
If the Court is called upon by any person to take judicial notice of any fact,
it may refuse to do so unless and until such person produces any such book or
document as it
may
consider necessary to enable it to do so.
113.
Facts admitted need not be proved: No fact need be proved in any proceeding
which
the parties thereto or their agents agree to admit at the hearing, or which
before the hearing, they agree to admit by any writing under their hands, or
which by any rule or pleading in force at the time they are deemed to have
admitted by their pleadings: Provided that the Court may in its discretion,
require the facts admitted to be proved otherwise than by such admissions.
CHAPTER
VIII
ESTOPPEL
114.
Estoppel: When
one person has by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief,
neither he nor his representative shall be allowed, in any suit or proceeding between
himself and such person or his representative, to deny the truth of that thing.
Illustrations
A
intentionally and falsely leads B to believe that certain land belongs to A,
and thereby
induces
B to buy and pay for it. The land afterwards becomes the property of A, and A
seeks to set aside the sale on the ground that, at the time of the sale, he had
no title. He must not be allowed to approve his want of title.
115.
Estoppel of tenant and of licensee of person in possession: No tenant of
immovable
property, or person claiming through such tenant, shall, during the continuance
of the tenancy, be permitted to deny that the landlord of such tenant had, at
the beginning of the tenancy, a title to such immovable property; and no person
who came upon any immovable property by the license of the person in possession
thereof shall be permitted to deny that such person had a title to such
possession at the time when such license was given.
116.
Estoppel of acceptor of bill of exchange bailee or licensee: No acceptor of a bill
of exchange shall be permitted to deny that the drawer had authority to draw
such bill or to endorse it; nor shall any bailee or licensee be permitted to
deny that his bailor or licenser had at the lime when the bailment or license
commenced, authority to make such bailment or grant such license. Explanation
1: The acceptor of a bill of exchange may deny that the bill was really drawn by
the person by whom it purports to have been drawn.
Explanation
2: If a bailee delivers the goods bailed to a person other than the bailor, he
may
prove that such person had a right to them as against the bailor.
PART
III
PRODUCTION
AND EFFECT OF EVIDENCE
CHAPTER
IX
OF
THE BURDEN OF PROOF
117.
Burden of proof: (1)
Whoever desires any Court to give judgment as to any legal
right
or liability dependent On the existence of facts which he asserts, must prove
that
those
facts exist.
(2)
When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.
Illustrations
(a)
A desired a Court to give Judgment that B shall be punished for a crime which A
says B has committee. A must prove that B has committed the crime.
(b)
A desires a Court to give judgment that he is entitled to certain land in the
possession of B by reason of facts, which he asserts, and which B denies to be
true.
A
must prove the existence of those facts.
118.
On whom burden of proof lies: The burden of proof in a suit or proceeding
lies on that person who would fail if no evidence at all were given on either
side.
Illustrations
(a)
A sues B for land of which B is in possession, and which, as A asserts was left
to A by the will of C, B's father. If no evidence were given on either side, B
would be entitled to retain his possession. Therefore the burden of proof is on
A. (b) A sues B for money due on a bond. The execution of the bond is admitted,
but B says that it was obtained by fraud, which A denies. lf no evidence were
given on either aide, A would succeed as the bond is not disputed and the fraud
is not proved. Therefore the burden, of proof is on B.
119.
Burden of proof as to particular fact: The burden of proof as to any particular fact
lies on that person who wishes the Court to believe in its existence, unless it
is provided by any law that the proof of that fact shall lie on any particular
person.
Illustrations
(a)
A prosecutes B for theft, and wishes the Court to believe that B admitted the
theft, to
C.
A must prove the admission. (b) B wishes the Court to believe that at the time
in question, he was elsewhere. He must prove it.
120.
Burden of proving fact to be proved to make evidence admissible: The burden of proving
any fact necessary to be proved in order to enable any person to give evidence of
any other fact is on the person who wishes to give such evidence.
Illustrations
(a)
A wishes to prove a dying declaration by B, A must prove B’s death.
(b)
A wishes to prove, by secondary evidence, the contents of a lost document.
A
must prove that the document has been lost.
121.
Burden of proving that case of accused comes within exceptions: When a
person
is accused of any offence the burden of proving the existence of circumstances bringing
the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV
of 1860), or within any special exception or proviso contained in any other
part of the same Code, or in any law defining the offence, is upon him, and the
Court shall presume the absence of such circumstances.
Illustrations
(a)
“A” accused of murder, alleges that by reason of unsoundness of mind, he did
not know the nature of the act. The burden of proof is on A. (b) A, accused of
murder, alleges that, by grave and sudden provocation, he was deprived of the
power of self-control. The burden of proof is on A. (c) Section 325 of the
Pakistan Penal Code (Act XLV of 1860) provides that whoever, except in the case
provided for by Section 335 voluntarily causes grievous hurt, shall be subject
to certain punishments. A is charged with voluntarily causing grievous hurt
under Section 325. The burden of proving the circumstances bringing the case
under Section 336 lies on A.
122.
Burden of proving fact especially within knowledge: When any fact is
especially within the knowledge of any person, the burden of proving that fact
is upon him
Illustrations
(a)
When a person does an act with some intention other than that which the
character
and
circumstances of the act suggest, the burden of proving that intention is upon
him.
(b)
A is charged with travelling on a railway without a ticket. The burden of
proving that he had a ticket is on him. .
123.
Burden of proving death of person known to have been alive within thirty
years:
Subject
to Article 124, when the question is whether a man is alive or dead and it is shown
that he was alive within thirty years, the burden of proving that he is dead is
on the person who affirms it.
124.
Burden of proving that person is alive who has not been heard of for seven
years:
When
the question is whether a man is alive or dead, and it is proved that he has not
been heard of for seven years by those who would naturally have heard of him if
he had been alive, the burden of proving that he is alive is shifted to the
person who affirms it.
125.
Burden of proof as to relationship in the cases of partners, landlord and
tenant, principal and agent: When the question is whether persons are
partners landlord and tenant, or principal and agent, and it has been shown
that they have been acting as such. the burden of proving that they do not
stand, or have ceased to stand, to each other in those relationships
respectively is on the person who affirms it.
126.
Burden of proof as to ownership: When the question is whether any person is
owner
of anything of which he is shown to be in possession, the burden of proving
that he is not the owner is on the person who affirms that he is not the owner.
127.
Proof of good faith in transactions where one party is in relation of active
confidence:
When
there is a question as to the good faith of a transaction between
parties,
one of whom stands to the other in a position of active confidence. The burden
of proving the good faith of the transaction is on the party who is in a
position of active
confidence.
Illustrations
(a)
The good faith of a sale by a client to an advocate is in question in a suit
brought by
the
client. The burden of proving the good faith of the transaction is on the
advocate. (b) The good faith of a sale by a son Just come of age to a father is
in question in a suit brought by the son. The burden of proving the good faith
of the transaction is on the father.
128.
Birth during marriage conclusive proof of legitimacy: (1) The fact that any
person was born during the continuance of a valid marriage between his mother
and any man and not earlier than the expiration of six lunar months from the
date of the marriage, or within two years after its dissolution, the mother
remaining unmarried, shall be conclusive proof that he is the legitimate child
of that man, unless—
(a)
the husband had refused, or refuses, to own the child ; or
(b)
the child was born after the expiration of six lunar months from the date on
which the
woman
had accepted that the period of iddat had come to an end.
(2)
Nothing contained in clause (1) shall apply to a non-Muslim if it is
inconsistent with his faith.
129.
Court may presume existence of certain facts: The Court may presume
the
existence
of any fact which it thinks likely to have happened, regard being had to the
common
course of natural events, human conduct and public and private business, in
their
relation to the facts of the particular case.
Illustrations
The
Court may presume— (a) that a man who is in possession of stolen goods soon
after the theft is either the thief or has received the goods knowing them to
be stolen, unless he can account for his possession ;
(b)
that an accomplice is unworthy of credit, unless he is corroborated in material
particulars
;
(c)
that a bill of exchange, accepted or endorsed, was accepted or endorsed for
good
consideration
;
(d)
that a thing or state of things which has been shown to be in existence within
a period shorter than that within which such things or states of things usually
cease to exist, is still in existence ;
(e)
that judicial and official acts have been regularly performed ;
(f)
that the common course of business has been followed in particular cases;
(g)
that evidence which could be and is not produced would, if produced, be
unfavourable to the person who withholds it ;
(h)
that, if a man refuses to answer a question which he is not compelled to answer
by
law,
the answer, if given, would be unfavourable to him
(i)
that when a document creating an obligation is in the hands of the obligor, the
obligation
has been discharged. But the Court shall also have regard to such facts as the
following, in considering whether such maxims do or do not apply to the
particular case before it; as to illustration (a) : a shopkeeper has in his
till marked rupee soon after it was stolen, and cannot account for its
possession specifically, but is continually receiving rupees in the course of
his business ; as to illustration (a) : A. person of the highest character, is
tried for causing a man's death by an act of negligence in arranging certain
machinery, B, a person of equally good character, who also took part in the
arrangement, describes precisely what was done, and admits and explains the
common carelessness of A and himself ; as to illustration (b) : A crime is
committed by several persons. A, B and C. three of the criminals, are captured
on the shop and kept apart from each other. Each gives an account of the crime implicating D and the
accounts corroborate each other in such a manner as to render previous concert
highly improbable; as to illustration (c) : A. the drawer of a bill of
exchange, was a man of business. B; the acceptor, was a young and ignorant
person, completely under A's influence; as to illustration (d) : It is proved
that a river ran in a certain course five years ago. But it is known that there
have been floods since that time which might change its course ; as to
illustration (e): a judicial act, the regularity of which is in question, was
performed under exceptional circumstances ; as to illustration (f): the
question is, whether a letter was received. It is shown to have interrupted by disturbances; as to
illustration (g) : a man refuses to produce a document which would bear on a contract
of small importance on which he is sued. but which might also injure the feelings
and reputation of his family; as to illustration (h) : a man refuses to answer
a question which he is not compelled by law to answer, but the answer to it
might cause loss to him in matters unconnected with the matter in relation to
which it is asked ; as to illustration (i) : a bond is in possession of the
obligor, but the circumstances of the case are such that he may have stolen it,
CHAPTER
X
OF
THE EXAMINATION OF WITNESS
130.
Order of production and examination of witnesses: The order in which
witnesses are produced and examined shall be regulated by the law and practice,
for the time being relating to civil and criminal procedure respectively, and,
in the absence of any such law, by the discretion of the Court.
131.
Judge to decide as to admissibility of evidence: (1) When either party
proposes
to
give evidence of any fact, the Judge may ask the party proposing to give the
evidence in what manner the alleged fact, if proved, would be relevant, and the
Judge shall admit the evidence if he thinks that the fact, if proved, would be
relevant and not otherwise. (2) If the fact proposed, to be proved is one of
Which evidence is admissible only upon proof of some other fact, such last
mentioned fact must be proved before evidence is given of the fact first
mentioned unless the party undertakes to give proof of such fact, and the Court
is satisfied with such undertaking.
(3)
if the relevancy of one alleged fact depends upon an other alleged fact being
first
proved,
the Judge may in his discretion, either permit evidence of the first fact to be
given before the second fact is proved, or require evidence to be given of the
second fact before evidence is given of the first fact.
Illustrations
(a)
It is proposed to prove a statement about a relevant fact by a person alleged
to be
dead,
which statement is relevant under Article 46. The fact that the person is dead
must be proved by the person proposing to prove the statement, before evidence
is given of the statement (b) It is proposed to prove, by a copy, the contents
of a document said to be lost. The fact that the original is lost must be
proved by the person proposing to produce the copy before the copy is produced.
(c)
A is accused of receiving stolen property knowing it to have been stolen. It is
proposed to prove that he denied the possession of the property The relevancy
of the denial depends on the identity of the property. The Court may in its discretion,
either require the property to be identified before the denial of the
possession is proved or permit the denial of possession to be proved before the
property is identified. (d) It is proposed to prove a fact (A) which is said to
have been the cause or effect of a fact-in-issue. There are several
intermediate facts (B, C and D), which must be shown to exist before the fact
(A) can be regarded as the cause or effect of the fact-in-issue. The Court may
either permit A to be proved before B, C or D is proved, or may require proof
of B, C and D before permitting proof of A.
132.
Examination-in-chief, etc.: (1) The examination of a witness by the party
who calls him shall be called his examination-in-chief. (2) The examination of
a witness by the adverse party shall be called his crossexamination. (3) The
examination of a witness, subsequent to the cross-examination by the party who called
him, shall be called his re-examination.
133.
Order of examinations: (1) Witnesses shall be first examined-in-chief, then (if
the
adverse
party so desires) cross-examined, then (if the party calling him so desires)
reexamined. (2) The examination and cross-examination must relate to relevant
facts but the crossexamination need not be confined to the facts to which the
witness testified on his examination-in-chief.
(3)
The re-examination shall be directed to the explanation of matters referred to
in crossexamination; and if new matter is, by permission of the Court,
introduced in reexamination, the adverse party may further cross-examine that matter.
134.
Cross-examination of person called to produce a document: A person
summoned
to produce a document does not become a witness by the mere fact that he
produces
it and cannot be cross-examined unless and until he is called as a witness.
135.
Witnesses to character: Witnesses to character may be cross-examined and
reexamined.
136.
Leading questions: Any
question suggesting the answer which the person putting in wishes or expects to
receive is called a leading question.
137.
When leading questions must not be asked: (1) Leading questions must not, if
objected
to by the adverse party, be asked in an examination-in-chief, or in a
reexamination, except with the permission of the Court.
(2)
The Court shall permit leading questions as to matters which are introductory
or
undisputed,
or which have in its opinion, been already sufficiently proved.
138.
When leading questions may be asked: Leading questions may be asked in
crossexamination.
139.
Evidence as to matters in writing: Any witness may be asked, whilst under
examination,
whether any contract, grant or other disposition of property, as to which he is
giving evidence, was not contained in a document, and if he says that it was,
or if he is about to make any statement as to the contents of any document, which
in the opinion of the Court, ought to be produced, the adverse party may object
to such evidence being given until such document is produced, or until facts
have been proved which entitle the party who called the witness to give
secondary evidence of it. Explanation: A witness may give oral evidence of
statements made by other persons
about
the contents of documents if such statements are in themselves relevant facts.
Illustration
The
question is, whether A assaulted B. C deposes that he heard A say to D—"B
wrote a letter accusing me of theft, and I will be revenged on him". This
statement is relevant, as showing A's motive for the assault, and evidence may
be given of it though no other evidence is given about the letter.
140.
Cross-examination as to previous statements in writing: A witness may be
cross-examined
as to previous statements made by him in writing or reduce into writing,
and
relevant to matters in question, without such writing being shown to him, or
being
proved;
but, if it is intended to contradict him by the writing, his attention must,
before the writing can be proved, be called to those parts of it which are to
be used for the purpose of contradicting him.
141.
Questions lawful in cross-examination: When a witness is cross-examined, he
may,
in addition to the questions hereinbefore referred to, be asked any questions
which tend— (1) to test his veracity,
(2)
to discover who he is and what is his position in life or
(3)
to shake his credit, by injuring his character, although the answer to such
questions
might
tend directly or indirectly to criminate him or might expose or tend directly
or
indirectly
to expose him to a penalty or forfeiture.
142.
When witness to be compelled to answer:
if
any such question relates to a matter relevant to the suit or proceeding, the
provisions of Article 15 shall apply thereto.
143.
Court to decide when question shall be asked and when witness compelled to answer:
If
any such question relates to a matter not relevant to the suit or proceeding, except
in so far as it affects the credit of the witness by injuring his character,
the Court shall decide whether or not the witness shall be compelled to answer
it, and may if it thinks fit, warn the witness that he is not obliged to answer
it. In exercising its discretion, the Court shall have regard to the following
considerations: —
(1)
such questions are proper if they are of such a nature that the truth of the
imputation
conveyed
by them would seriously effect the opinion of the Court as to the credibility
of the witness on the matter to which he testifies ;
(2)
such questions are improper if the imputation which they convey relates to
matters so remote in time, or of such a character, that the truth of the
imputation would not affect, or would affect in slight degree, the opinion of
the Court as to the credibility of the witness on the matter to which he
testifies;
(3)
such questions are improper if there is a great disproportion between the
importance of the importation made against the witness's character and the
importance of his evidence; (4) the Court may, if it sees fit, draw from the
witness's refusal to answer, the inference that the answer if given would be
unfavourable.
144.
Question not to be asked without reasonable grounds: No such question as
is
referred
to in Article 143 ought to be asked, unless the person asking it has reasonable
grounds
for thinking that the imputation, which it conveys, is well founded.
Illustrations
(a)
An advocate is instructed by an attorney that an important witness is a dakait.
This is a reasonable ground for asking the witness whether he is a dakiat.
(b)
An advocate is informed by a person in Court that an important Witness is a
dakait.
The
informant, on being questioned by the advocate, given satisfactory reasons for
his
statement.
This is a reasonable ground for asking the witness whether he is a dakait.
(c)
A witness, of whom nothing whatever is known, is asked at random whether he is
a
dakait.
There are here no reasonable grounds for the question.
(d)
A witness, of whom nothing whatever is known, being questioned as to his mode
of life and means of living, gives unsatisfactory answers. This may be a
reasonable ground for asking him if he is a dakait.
145.
Procedure of Court in case of question being asked without reasonable
grounds:
If
the Court is of opinion that any such question was asked without reasonable grounds,
it may, if it was asked by any advocate, report the circumstances of the case
to the High Court or other authority to which such advocate is subject in the
exercise of his profession.
146.
Indecent and scandalous question: The Court may forbid any question or
inquiries which it regards as indecent or scandalous, although such questions
or inquiries may have some bearing on the questions before the Court unless
they relate to facts-in-issue, or to matters necessary to be known in order to
determine whether or not the facts-inissue existed.
147.
Procedure of Court in cases of defamation libel and slander: When a person is
prosecuted
or used for making or publishing an imputation of a defamatory, libellous or
slanderous
nature, the Court shall not, before it has recorded its findings on the issues
whether
such person did make or publish such imputation and whether such imputation is true,
permit any question to be put to any witness for the purpose of injuring the
character of the person in respect of whom such imputation has or is alleged to
have been made or any other person, whether dead or alive, in whom he is
interested, except in so far as any such question may be necessary for the
purpose of determining the truth of the imputations alleged to have been made
or published.
148.
Questions intended to insult or annoy: The Court shall forbid any question which appears
to it to be intended to insult or annoy, or which though proper in itself,
appears to the Court needlessly offensive in form.
149.
Exclusion of evidence to contract answer to questions testing veracity: When a witness has
been asked and has answered any question which is relevant to the inquiry only
in so far as it tends to shake his credit by injuring his character, no
evidence shall be given to contradict him; but if he answers falsely, he may
afterwards be charged with giving false evidence. Exception 1: If a witness is
asked whether he has been previously convicted of any crime denies it, evidence
may be given of his previous conviction. Exception 2: If a witness is asked any
question tending to impeach his impartiality and answers it by denying the
suggested, he may be contradicted.
Illustrations
(a)
A claim against an underwriter is resisted on the ground of fraud. The claimant
is asked whether, in a former transaction, he had not made a fraudulent claim.
He denies it. Evidence is offered to show that he did make such a claim. The
evidence is inadmissible. (b) A witness is asked whether he was not dismissed
from a situation for dishonesty. He denies it. Evidence is offered to show that
he was dismissed for dishonesty. The evidence is not admissible.
(c)
A affirms that on a certain day he saw B at Lahore.
A
is asked whether he himself was not on that day at Faisalabad. He denies it. Evidence
is offered to show that A was on that day at Faisalabad. The evidence is
admissible, not as contradicting A on a fact, which affects his credit, but as
contradicting the alleged fact that B was seen on the day in question in
Lahore. In each of these cases the witness might, if his denial was false, be
charged with giving false evidence.
(d)
A is asked whether his family has not had a blood feud with the family of D
against
whom
he gives evidence. He denies it. He may be contradicted on the ground that the
question tends to impeach his impartiality.
150.
Question by party to his own witness: The Court may, in its discretion, permit the person
who calls a witness to put any questions to him, which might be put in
crossexamination by the adverse party.
151.
Impeaching credit of witness: The credit of a witness may be impeached in
the following ways by the adverse party or with the consent of the Court, by
the party who calls him: (1) by the
evidence of persons who testify that they, from their knowledge of the witness,
believe him to be un-worthy of credit; (2) by proof that the witness has been
bribed, or has accepted the offer of a bribe, or has received any other corrupt
inducement to give his evidence ; (3) by proof of former statements
inconsistent with any part of his evidence which is liable to be contradicted ;
(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown
that the prosecutrix was of generally immoral character. Explanation: A witness
declaring another witness to be unworthy of credit may not, upon his
examination-in-chief, give reason for his belief, but he may be asked his
reasons in cross examination, and the answers which he gives cannot be
contradicted, though, if they are false, he may afterwards be charged with
giving false evidence.
Illustrations
(a)
A sues B for the price of goods sold and delivered to B. C says that A
delivered the
goods
to B. Evidence is offered to show that, on a previous occasion, he said that he
had not delivered the goods to B. The evidence is admissible. (b) “A” if
indicated for the murder of B. C says that B, when dying, declared that A had
given B the wound of which he died. Evidence is offered to show that, on a
previous occasion, C said that the wound was not given by A or in his presence,
The
evidence is admissible.
152.
Questions lending to corroborate evidence of relevant fact admissible: When a witness whom
it is intended to corroborate gives evidence of any relevant fact, he may be questioned
as to any other circumstances which he observed at or near to the time or place
at which such relevant fact occurred if the Court is of opinion that such circumstances,
if proved, would corroborate the testimony of the witness as to the relevant fact
which he testifies.
Illustrations
A,
an accomplice, gives an account of robbery in which he took part He describes
various incidents unconnected with the robbery which occurred on his way to and
from the place where it was committed. Independent
evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.
153.
Former statements of witness may be proved to corroborate later testimony as to
same fact: In
order to corroborate the testimony of a witness, any former statement made by
such witness relating to the same fact at or about the time when the fact took place,
or before any authority legally competent to investigate the facts; may be proved.
154.
What matters may be proved in connection with proved statement relevant
under
Article 46 or 47: Whenever
any statement, relevant under Article 46 or 47, is
proved,
all matters may be proved either in order to contradict or corroborate it, or
in order to impeach or confirm the credit of the person by whom it was made,
which might have been proved if that person had been called as a witness and
had denied upon crossexamination the truth of the matter suggested.
155.
Refreshing memory: (1)
A witness may, while under examination, fresh his memory by referring to any
writing made by himself at the time of the transaction concerning which he is
questioned, or so soon afterwards that the Court considers it likely that the transaction
was at that time fresh in his memory. (2) The witness may also refer to any
such writing made by any other person, and read by the witness within the time
aforesaid, if when he read if he knew it to be correct. (3) Whenever a witness
may refresh his memory by reference to any document, he may with the permission
of the Court, refer to a copy of such document: Provided the Court be satisfied
that there is sufficient reason for the non-production of the original. (4) An
expert may refresh his memory by reference to professional treaties.
156.
Testimony to facts stated in document mentioned in Article 155: A witness may also
testify to facts mentioned in any such document as is mentioned in Article 155,
although
he has no specific recollection of the facts themselves, if he is sure that the
facts were correctly recorded in the document.
Illustrations
A
book-keeper may testify to facts recorded by him in books regularly keep in the
course of business, if he knows that the books were correctly kept, although he
has forgotten the particular transactions entered.
157.
Right of adverse party as to writing used to refresh memory: Any writing referred to
under the provisions of the two last proceeding Articles must be produced and
shown to the adverse party if he requires it, such party may, if he pleases,
cross-examine the witness thereupon.
158.
Production of documents: (1) A witness summoned to produce a document shall, if it
is in his possession or power, bring it to Court, notwithstanding any objection
which there may be to its production or to in its admissibility. The validity
of any objection shall be decided on by the Court (2) The Court, if it sees fit
may inspect the document unless it refers to matters of State, or take other
evidence to enable it to determine on its admissibility. (3) If for such a
purpose it is necessary to cause any document to be translated, the Court may,
if it thinks fit, direct the translator to keep the contents secret, unless the
document is to be given in evidence; and if the translator disobeys such direction,
he shall be held to have committed an offence under Section 166 of the Pakistan
Penal Code (Act XLV of 1860).
159.
Giving, as evidence, of document called for and produced on notice: When a
party
calls for a document which he has given the other party notice to produce and
such document is produced and inspected by the party calling for its
production, he is bound to give it as evidence if the party producing it
requires him to do so.
160.
Using, as evidence, of document production of which was refused on notice:
When
a party refuses to produce a document which he has had notice to produce; he
cannot
afterwards use the document as evidence without the consent of the other party
or the order of the Court.
Illustrations
A
sues C on an agreement and gives B, notice to produce it. At the trial A calls
for the document and B refuses to produce it. A gives secondary evidence of its
contents, B seeks to produce the document itself to contradict the secondary
evidence given by A, or in order to show that the agreement is not stamped. He
cannot do so.
161.
Judge's power to put questions or order production: The Judge may in
order to discover or to obtain proper proof of relevant facts, ask any question
he places, in any form, at any time, of any witness, or of the parties about
any fact relevant or irrelevant; and may order the production of any document
or thing; and neither the parties nor their agents shall be entitled to make
any objection to any such question or order, nor, without the leave of the
Court, to cross-examine any witness upon any answer given in reply to any such
question: Provided that the Judgment must be based upon facts declared by this
Order to be relevant, and duly proved: Provided also that this Article shall
not authorise any Judge to compel any witness to answer any question or to
produce any document which such witness would be entitled to refuse to answer
or produce under Articles 4 to 14, both inclusive, if the question were asked
or the document were called for by the adverse party; nor shall the judge ask
any question which it would be improper for any other person to ask under
Article 143 or 144; nor shall he dispense with primary evidence of any
document, except in the cases hereinbefore excepted.
CHAPTER
XI
OF
IMPROPER ADMISSION AND REJECTION OF EVIDENCE
162.
No new trial for improper admission or rejection of evidence: The improper admission
or rejection of evidence shall not be ground of itself for a new trial or
reversal of any decision in any case, if it shall appear to the Court before
which such objection is raised that, independent of the evidence objected to
and admitted, there was sufficient evidence to justify the decision, or that,
if the rejected evidence had been received, it ought not to have varied the
decision.
CHAPTER
XII
DECISION
OF CASE ON THE BASIS OF OATH
163.
Acceptance or denial of claim on oath: (1) When the plaintiff takes oath in support of
his claim, the Court shall, on the application of the plaintiff, call upon the
defendant to deny the claim on oath. (2) The Court may pass such orders as to
costs and other matters as it may deem fit. (3) Nothing in this Article applies
to laws relating to the enforcement of Hudood or other criminal cases.
CHAPTER
XIII
MISCELLANEOUS
164.
Production of evidence that has become available because of
modern
devices, etc.: In
such cases as the Court may consider appropriate, the Court may allow to be
produced any evidence that may have become available because
of
modern devices or techniques.
165.
Order to override other laws: The provisions of this Order shall have
effect
notwithstanding
anything contained in any other law for the time being in force.
166.
Repeal: The Evidence Act, 1872 (I of 1872), is hereby repealed.
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