Primary & Secondary Evidence

Primary & Secondary Evidence

In civil as well as in criminal cases, litigant parties are required to produce evidences in support of their claims. Great caution and care is taken by the law while admitting evidence produced by the litigant parties. It is carefully examined that whether the evidence so produced is primary or secondary. As it is the evidences produced before the court which is the key instruments in determining a fact in issue.

Meaning of Evidence

Evidence used in the judicial proceedings means the facts, testimony or documents which may be legally received in order to prove or disprove matter in issue.

Primary Evidence

It means and includes;

The original document itself produced for the inspection of the court.

An oral account of the original evidence i.e. of a person who saw the occurrence and gives and account of it.

Primary evidence also includes the following three type of documents;

Document executed in several parts

Document executed in counter parts i.e. the term counterpart literally means duplicate.

Document made by a uniform process i.e. made or printed at one time from one original.

Secondary evidence

Secondary evidence is a report or an oral account of the original evidence or copy of a document or a model of the original thing. It is always given under certain circumstances, in the absence of that better evidence which the law requires to be given first. Public documents are generally provable by the production of secondary evidence.

Certified copies. It means an attested copy obtained from the custodian of public record in his official capacity.

Copies made by mechanical process i.e. photocopy.

Copies made from or compared with the original.

Evidence against the non-executing party in case of conterparts.

Evidence of a person who has himself seen the original document.

Reasons for giving secondary evidence

Secondary evidence should not be accepted without a sufficient reason being given for non-production of the original. Such reason must come strictly within the ambit of law.

Right of waiver

Whenever secondary evidence is presented before a court it is the right of the adverse party to object the same in the court of first instance. Otherwise this right will not be available in the appellate court. In this case that right would be deemed to be waived.

Rule of preference and its exceptions

A document must be preferred to be proved by Primary Evidence. It is because the contents of a document can best be proved by the document itself. However there are certain exceptions to the above rule, mentioned as under;

When the original is in the possession of opposite party, or person beyond the reach of court or person not subject of law or person failing to produce the same after the notice of court.

When the original is lost or destroyed

When the original is voluminous document

When the production of original is physically impossible.

In the following instances certified copies of document is admissible;

When original is public document.

When the law has allowed it be produced.

When original consists of numerous accounts.

When original is part of judicial record.

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Primary and Secondary Evidence

Primary and Secondary Evidence

Primary and secondary evidence is discussed in detail in the Qanon-e-Shahadat order 1984. It is the evidence statute in Pakistan at the moment... The relevant articles are mentioned below:-

72. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.

COMMENTARY

Arts. 72, 75, 78, 79. Court can consider a document admissible if a document produced is on record but Presiding Officer has not put exhibit number on the document.

2a. Evidence, admissibility of. Petitioner contended that copies of forms regarding sanction of plan were not public documents and could not have been exhibited without formal proof. Held: No objection having been raised when such documents were tendered in evidence and exhibited, no objection could be allowed to be raised at later stage in revision.

3. Non-production of original document before Settlement Authorities. Effect. Joint allotted of shop in dispute. Defendant claimed that plaintiff had surrendered his claim to the extent of his ½ share in shop in question and had executed deed of surrender in his favour. Such deed, however, having not been placed before Settlement Authorities, could not be verified and accepted after notice without recording the statement of plaintiff. Deed of surrender, therefore, had no value and on basis thereof, P.T.D. for the whole shop should not have been issued in favour of defendant alone. Permanent Transfer Deed issued in favour of defendant to the extent of plaintiff’s share in shop in question, was thus not valid

73. Primary evidence. “Primary evidence” means the document itself produced for the inspection of the Court.

Explanation 1. Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2. Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

Illustration

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

COMMENTARY

To prove contents of documents, claimant is bound to produce primary or secondary evidence unless execution of the same is admitted by the opponent.

74. Secondary evidence. — “Secondary evidence” means and includes—

(1) certified copies given under the provisions hereinafter contained;

(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some person who has himself seen it.

Illustrations

(a) A photograph of an original is secondary evidence of its contents though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy, compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.

COMMENTARY

Report of Magistrate would be enough to justify attraction of Art. 76(c) for purpose of production of secondary evidence in terms of Art. 74.4a

Qanun-e-Shahadat Order is applicable to Provincially Administered Tribal Areas including Malakand Division. Murder cases cannot be decided on basis of Qasamat as it is not recognized as a mode of evidence under Qanun-e-Shahadat Order. Courts in PATA should follow provisions of Qanun-e-Shahadat Order, particularly Art. 17, in their true perspective.

75. Proof of documents by primary evidence. — Documents must be proved by primary evidence except in the cases hereinafter mentioned.

COMMENTARY

Execution of sale-deed by a person claiming to be holding power-of-attorney from the owner. Owner denying having executed any power-of-attorney in favour of said person. Original power-of-attorney was not produced in Court, Photostat copy produced could not, in the absence of original, be taken into consideration. Person holding purported power-of-attorney did not appear in Court to contest suit by the owner (plaintiff). Defendant (vendee) acknowledge in his statement before Court that he was not supplied original power-of-attorney at the time of execution of sale-supplied original power-of-attorney at the time of execution of sale-deed. Power-of-attorney was thus, a forged document and person executing sale-deed on basis thereof, had no authority to execute any sale-deed on behalf of the owner (plaintiff). Sale-deed executed in favour of vendee-defendant was, thus, not valid.6

76. Cases in which secondary evidence relating to document may be given. — Secondary evidence may be given of the existence, condition or contents of a document in the following cases:—

(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produce it; and when, after the notice mentioned in Article 77 such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative-in-interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when, due to the volume or bulk of the original, copies thereof have been made by means of microfilming or other modern devices;

(e) when the original is of such a nature as not to be easily movable;

(f) when the original is a public document within the meaning of Article 85;

(g) when the original is a document of which a certified copy is permitted by this Order, or by any other law in force in Pakistan, to be given in evidence;

(h) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection;

(i) when an original document forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible as a secondary evidence.

In cases (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (f) or (g), certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (h), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such document.

COMMENTARY

Secondary evidence of report of identification parade cannot be allowed or permitted to be adduced when no effort had been made to locate the original report of identification parade.6a

77. Rules as to notice to produce. — Secondary evidence of the contents of the documents referred to in Article 76, paragraph (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such notice to produce it as is prescribed by law; and, if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case;

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—

(1) when the document to be proved is itself a notice;

(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;

(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

(4) when the adverse party or his agent has the original in Court;

(5) when the adverse party or his agent has admitted the loss of the document;

(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

78. Proof of signature and handwriting of person alleged to have signed or written document produced. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature of the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.

COMMENTARY

Suit for specific performance of agreement to sell property. Disputed signatures. Plaintiff is required to prove the signatures of the executant of the agreement.7

79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

COMMENTARY

Revisional jurisdiction, exercise of. Courts below had recorded very cogent reasons for decreeing plaintiff’s suit by placing reliance upon circumstantial evidence as also on evidence on record for coming to conclusion that neither document in question, was proved to have been executed nor the same was verified in accordance with law. Original document was also not placed on record. Findings recorded by Courts below on the question of execution of alleged document being lawful could not be interfered with. Judgments and decrees of Courts below were maintained in circumstances.8

Proof of execution of private document. Execution of such document had to be proved by examining the scribe and an attesting witness. Such persons having not been examined, document in question, would be deemed to have not been proved and could be excluded from consideration.9

Agreement to sell. Proof and admissibility. Scribe of document when a competent witness. Evidence of one marginal witness and scribe. Evidentiary value of. Agreement to sell was proved through the statement of one marginal witness and scribe of the document in question. Ordinarily a scribe who had merely scribed a document and handed it over to parties for their signatures and the signatures of attesting witnesses would not become competent attesting witness, if such document was executed elsewhere in his absence. Where, however, document in question, was actually executed in presence of scribe and parties and attesting witnesses had signed the same in his presence, he (scribe) could be treated as attesting witness although he had not signed the document in that capacity.1

Agreement to sell. Execution of. Proof of. Parties had executed document in presence of scribe and signed it. Even attesting witnesses had signed document in presence of scribe. Scribe can be treated to be an attesting witness although he has not signed it in that capacity. Requirements of provisions of Article 79 read with Article 17 of Qanun-e-Shahadat have been substantially complied with. Admittedly original document as placed on record, but record having been burnt, was reconstructed under orders of High Court. No objection was raised at time of reconstruction of file regarding genuineness of agreement to sell. Held: No jurisdiction defect in impugned judgments and decrees of Courts below or any misreading or non-reading of evidence has been pointed out to justify interference in concurrent findings of fact recorded by Courts below. Petition dismissed.2

Marginal witnesses of disputed deed. Evidentiary value of. No lacuna in the evidence of marginal witnesses was apparent or pointed out, therefore, their veracity could not be described. Evidence of such witnesses, alone was sufficient to prove the document in question, even if other evidence was altogether ignored.3

Proof of execution of document required by law to be attested. Exception. Documents required by law to be attested would not be used as evidence until two attesting witnesses, who if alive were amenable to jurisdiction of Court and capable of giving evidence were produced. Not necessary to call attesting witnesses to prove execution of a documents, which was (not a will) registered in accordance with Registration Act, 1908, unless execution thereof, was specifically denied by the person who allegedly executed the document. Document in question, being registered one, and its existence having not been denied, its execution could be proved by certified copy thereof.

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EXPERT OPINION

EXPERT OPINION UNDER QSO

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

1. Foreign law.

2. Science.

3. Art.

4. Identification of handwriting.

5. Finger impression.

Persons who help in such matters are termed as experts. Court forms its opinion with the help of expertise. Their opinion is relevant.

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

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

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

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

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

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Kinds of Evidence Under Qanun-e-Shahadat Order 1984

Kinds of Evidence Under Qanun-e-Shahadat Order 1984

Introduction

Evidence is the most important part of procedural law. Term “evidence” has been derived from Latin term, and this Latin term is evident or evidere, which means to show clearly, to discover, to ascertain or to prove. Evidence refers to anything, which is necessary to prove a certain fact. In short words, evidence is a mean of proof. There can be different kinds of evidence.

Definition of Evidence

(i) According To Salmond

“Evidence may be defined as any fact which possesses probative force.”

Meaning of Probative force

A probative force means the quality by virtue of which the Court presumed that one fact is evidence of another fact.



Various kinds of Evidence

Following are most prominent kinds of evidence

1. Original Evidence

Original evidence means production of documents in their original forms.

Explanation

Following points are important for explanation of original evidence

(i) Original evidence is, in fact, primary evidence.

(ii) Original evidence relates to documents

(iii) In most of cases, original evidence is given more importance over oral evidence.

(iv) Written documents, which can be public or private documents, are usually produced as original evidence.

2. Un-original Evidence

Un-original evidence means production of copy of document in place of original document.

Explanation

Following points are important for explanation of un-original evidence.

(i) Secondary evidence

Un-original evidence is, in fact, secondary evidence.

(ii) Insufficient Evidence

Usually un-original evidence is considered insufficient evidence. Therefore, it is not relied upon in most of cases. It is only relied upon when it is proved through other evidence that production of original document has become impossible and therefore, its copy has been produced.

(iii) When can un-original evidence be given?

Un-original evidence can be given when original document is not available or is lost or is destroyed or is in possession of some person, who does not produce. There can also be other reason due to which un-original evidence can be given.

3. Direct Evidence

Direct evidence means that evidence, which relates to real disputed question of case and which is sufficient to determine responsibility.

(i) Direct evidence can be oral evidence. In fact, Qanoon-e-Shahadat Order has provided that oral evidence should be direct in all cases.

(ii) Even direct evidence can be documentary evidence too.

(iii) Direct evidence is based on personal knowledge or observation.

(iv) Direct evidence cannot be based in inference or presumption.

4. Real Evidence

Real evidence usually takes from of some kinds of material object, which is produced be before court.

Explanation

Following points are important for explanation of real evidence

(i) Material or physical evidence

Real evidence is also termed as material or physical evidence.

(ii) Purpose of Real evidence

On purpose of real evidence can be to prove existence of some material object and real evidence can be to make inference about use of some material object in commission of some offence. And also to prove presence of any material object at some place or possession of some person can be purpose of real evidence.

5. Circumstantial Evidence

Circumstancial evidence means that evidence, which is based on inference and which is not based on personal knowledge or observation.

6. Personal Evidence

When some person himself sees any incident or situation and gives statement about it in court, such statement is called personal evidence.

Conclusion

To conclude, it can be stated that concept of evidence is an old concept. Inquisitorial principle and adversary principle played important role in development of concept of evidence. According to inquisitorial principle, judge was to search for facts, listen to witnesses and experts, examine documents, and order to take evidence. Contrary to this, parties and their counsels are primarily responsible for finding and presenting evidence and judge does not investigate facts according to adversary principle.

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Differences between Public Document’ and Private Document

Differences between Public Document’ and Private Document are:

Public Document:

Article 85 of QSO Defines what the Public documents are.

All the public documents are kept in some special custody of the authority

Certified copies of the Public Documents shall be given to any person demanding it on paying prescribed fee

Public documents are open to inspection to any person.

Mode of proof:

The mode of proving public documents has been provided in ARTICLE 88 to 89 of QSO

A public document is one prepared by a Public servant in discharge of his public-official duties

Certified copies of the public document can be received in evidence and without proof

Examples: Documents forming the Acts, or records of the Act, of the sovereign authority, Tribunals, public officers, legislative, judicial and executive, etc.

Private Document:

Article 86 of QSO defines that all other documents are private

All the private documents are kept in the hands of private persons under their own custody

Certified copies cannot be given pertaining to private documents.

In fact the words certified copies do not arise in private custody.

Private Documents are not open for in section to any person.

Mode of proof:

The mode of proving private documents has been provided in ARTICLE 82 to 84

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Kinds of evidences

Kinds of evidences:

1.Oral:

Statements made by witnesses in Court

2.Documentary:

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

3.Conclusive:

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

4.Direct:

It is evidence of fact actually in issue; evidence of a fact actually perceivedby a witness with his own senses.

5.Circumstantial:

It is evidence of a fact not actually in issue, but legally relevant toa fact in issue.

6.Real:

It is a kind of evidence supplied by material objects produced for the inspection of the Court.

7.Extrinsic:

It is oral evidence given in connection with written documents.

8.Hearsay:

What someone else has been heard to say, “What the solider said”, as contrasted with the direct evidence of a witness himself, oral or written statements made by persons not called aswitnesses? Hearsay evidence is, in general, excluded, but the repetition or another person’s statement is sometimes permissible, and there are express exceptions of the rule against hearsay.In criminal proceedings that common law rules as to hearsay still obtain. In civil proceedings the common law rules are abrogated.

9.Indirect:

It is circumstantial or hearsay evidence.

10.Original:

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

11.Derivative:

It is evidence, which derivesits force from some other source.

12.Parole:

It is oral, extrinsic (unrelated) evidence.

13.Prima facie:

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

14.Primary:

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

15.Secondary:

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

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

Q. All relevant facts are not admissible but all admissible facts are relevant.

A fact is said to be logically relevant to another when it bears such a causal relation with the other as to render probable the existence or nonexistence of the latter.

All facts which are logically relevant are not legally relevant.

Legally relevant facts:

One fact is said to be legally relevant to another, only when the one is connected with the other in any of the ways referred under chapter III Articles 18-29.

Art. 19 Facts forming part of same transaction whether proximate or remote, immediate or later, direct or indirect with respect to space and time

Art. 20 Facts which are occasion, cause or effect of fact in issue

Art. 21 Facts showing motive, preparation and previous or subsequent conduct relating to fact in issue

Art. 22 Facts necessary in supporting or rebutting an inference suggested by fact in issue or relevant issue, establishing identity of anything or person or (article) whose identity is relevant, fix time of occurrence of fact in issue or relevant fact, showing relation of parties involved in commission of offence.

Art. 23 Facts proving existence of conspiracy and parties involved through the things said or done by conspirators in respect to common design since time of making intention by one of the party of conspiracy.

Art. 25 Facts enabling court to determine amount of damages in a suit for damages.

Art. 26 Facts showing existence and non existence of customs

Art. 27 Facts showing existence of state of mind( intention, knowledge, good faith, negligence, rashness) or state of body or bodily feelings.

Art. 28 Facts showing/Explaining an act whether it is intentional or incidental

Art. 29 Facts showing existence of conduct of business in particular way.

Logical relevancy is wider than legal relevancy; every fact which is legally relevant is logically relevant, but every fact which is logically relevant is not necessarily legally relevant. Thus, a confession made to a police officer may appear to be logically relevant, but such a confession is not legally relevant, for Art 40 of the QSO declares that it cannot be used as evidence against the person making it unless it is recorded in presence of magistrate exercising judicial powers.

Very often, public considerations of fairness and the practical necessity for reaching speedy decisions necessarily cause the rejection of much of the evidence which may be logically relevant.

Thus, all evidence that is admissible is relevant, but all that is relevant is not necessarily admissible. Relevancy is the genus of which admissibility is a species. Thus, oral statements which are hearsay may be relevant, but not being direct evidence, are not admissible.

Cases of exclusion of logically relevant facts by positive rules of law are:

(i) Exclusion of oral by documentary evidence Art. 102-110

(ii) Exclusion of evidence of facts by estoppel Art. 114-116

(iii) Exclusion of privileged communications, such as confidential communications with a legal adviser, communication during marriage, official communications, etc 

Art. 4-14

Admissibility means that the facts which are relevant are only admissible by the Court.

Cases in where facts can be admissible although not relevant

1. Art. 24 facts which logically relevant but not legally, but are admissible.

2. Dying declaration a logically relevant fact but not legally to court as it is hearsay evidence u/A 71 but is admissible u/A 46(1).

3. Opinion of a person on question of fact is irrelevant but under Art 59-65 court may admit it.

Admissibility involves the process whereby the court determines whether the Law of Evidence permits that relevant evidence to be received by the court.

The concept of admissibility is often distinguished from relevancy. Relevancy is determined by logic and common sense, practical or human experience, and knowledge of affairs. On the other hand, The admissibility of evidence, depends first on the concept of relevancy of a sufficiently high degree of probative value, and secondly, on the fact that the evidence tendered does not infringe any of the exclusionary rules that may be applicable to it.

Relevancy is not primarily dependant on rules of law but admissibility is founded on law.

Difference between relevancy and admissibility:-

Relevancy

i) When facts are so related as to render the existence or non-existence of other facts probable according to common course of events or human conduct, they are called relevant.

Admissibility

i) When facts have been declared to be legally relevant under QSO 1984 they become admissible.

Relevancy

(ii) All admissible facts are relevant.

Admissibility

(ii) All relevant facts are not admissible. Only legally relevant facts are admissible.

Conclusion, 

Relevancy is a test for admissibility. The question of admissibility is one of law and is determined by the Court. if it can be shown that the evidence would be relevant if proved, the court shall admit evidence of it.

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Hearsay Evidence

Hearsay evidence

Introduction:

Article 71 enacts the general rule of natural justice that hearsay evidence is no evidence. The term hearsay can be construed as the act of quoting anything heard from any other person without having personal knowledge of the fact. Stephen explains it in his book in following words;”whatever person is heard to say or whatever a person declares on information given by someone else.” Article 71 of QSO excluded the hearsay evidence by declaring it invalid piece of evidence. However this rule is subject to host of exceptions. What the Article emphasized is that the best available evidence should be brought before the Court; derivative or second hand proofs are not receivable as evidence.

Relevant Provisions:

Article 71 of Qanoon –E- Shahadat Order, 1984

Cross Reference:

Article 2,3,17,18,30-45,46,47,85,64 of the Qanun-e-Shahadat Order, 1984

General principle of production of evidence:

Article 71 lays down that every evidence should in all cases be direct one. Law under Article 71 insists for a direct evidence of primary source and it would be inadmissible if it come from an indirect source. (PLD 1996 Lah 402)

Article 71:

Oral evidence must, in all cases be 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 fact which could be perceived by any other sensor in any other manner, it must be the evidence of a witness who says he perceived it by the 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 hold that opinion on those grounds………………………………

Explanation of term “Must”:

The word must as used under Article 71 imposes a duty on the court to exclude all oral evidence which is no direct. (PLD 1996 Lah 402)

Evidence must “direct”:

The expression direct evidence under Article 71 of QSO is used in the sense of original evidence as distinguished from hearsay evidence and it is not used in contravention to circumstances or presumptive evidence.

English law on the admissibility of hearsay evidence:

The English rule is that an assertion other than one made by a person while giving oral evidence in proceedings is inadmissible as evidence of any fact asserted (Cross and Tipper)

Reasons put forward for the rejection of hearsay evidence:

Reasons advanced in support of rejection of hearsay evidence are numerous; among them some are stated in (Philip 11th edn: 278)

The original declarant can’t be made accountable;

There is every possibility of depreciation of truth in the process of repetition;

There is every probability of fraud;

Waste of time involved in listening to the idol rumor;

Lack of oath of original declarant;

There is no opportunity to cross examine the original declarant.

Exceptions to general rule with respect to hearsay evidence:

The hearsay rule has been subject to the exceptions virtually since its inception. Originally the exceptions were entirely the work of English judges; it is now incorporated in the statute. Following are those exceptions to the rule that are enacted in Qanun-e-Shahadat Order, 1984;

Opinion of experts:

Under Article 71 the opinion of experts expressed in any treaty commonly offered for sale and the grounds on which such opinion are held may be proved by the production of such treaties if author is not available.

Admissibility as secondary evidence:

Proviso 2 to the Article further qualify the rule by stating 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.

Shahada al shahada:

Proviso 3 lays down the prosecution has a right to produce evidence upon evidence; because if a witness is unable to give his evidence then he can appoint two witnesses to dispose on his behalf; except in case of hadood.

Evidentiary value of hearsay evidence:

The value of hearsay evidence depends on the character of witness who depose to the fact.

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Hostile Witness

"Hostile witness"

Under Article 150, leading questions are generally allowed to be put to a witness who, by his conduct in the witness-box obviously appears to be hostile to the party calling him.

Witness’s want of understanding:

Where the witness is a child or an illiterate or an alien and doesn’t appreciate the tenor of the desired details and is therefore, unable to say anything about it, a question calling attention specifying to the details may be allowed when other means have failed.

Permission of the court:

Where the court while exercising its discretionary power to allow leading question; the same can be asked.

Objection has not been raised:

Where the adverse party doesn’t raise objection as against the leading question put on witness; it is allowed.

Leading question can be asked during cross-examination:

Leading question may be asked in cross-examination. The purpose of cross-examination being the test of accuracy, credibility and general value of the evidence given and sift the fact already stated by the witness; it sometimes become necessary for a party to put leading question in order to elicit facts in support of his case, even though the fact so elicited may be entirely unconnected with facts testified to the examination-in-chief.

Exception to the rule that leading question may be asked in cross-examination:

There are certain exceptions to the rule that leading question may be asked in cross examination. These are as follow;

The counsel is not allowed to go to the length of putting the very words into the mouth of the witness which he is to echo back.

A question which assumes facts as proved which have not been proved or which assumed that particular answer have been given in fact have not been given is not permissible either in examination-in-chief or cross-examination.

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LEADING QUESTION

#___LEADING___QUESTION___

Articles: 136-138 QSO 1984

One which leads the witnesses up to denied answer...
one which is put in such a way as suggest to the witness the answer which is suggested or expected or wanted...
It embodies a material fact admittance of a conclusive answer by a simple negative or affirmative way...

QSO, 1984 has laid down a general rule that a party #cannot ask a L.Q to his own witness during #examination_in_chief and #re_examination but L.Q may be asked by adverse party during cross-examination.

TEXT OF RELEVANT PROVISION:

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 cross examination
Cross reference:
Ar:132,141,144,146,149 of QSO,1984

The whole CHAPTERX x OF THE EXAMINATION OF WITNESSES IS
Important in Leading Question

EXPLANATION OF CONCEPT OF L QUESTION:
In common Law system that relies on testimony of witnesses, a L.Q is a q that suggests the answer or contains the information the examiner is looking for
For example:
You were at buffy’s bar on the night of July 15,weren’t you?
It suggests that the witness was at Duffy’s Bar on the night in q.The same q in a non leading form would be:
Where were u on the night of July 15?
The form of q does nt suggest to the witness the answer the examiner hopes to elicit.

It is important to distinguish bt L.Q and q that are objectionable because they contain implicit assumptions.
The classic example is:
Have you stopped beating your wife?
This q is not leading , as it does not suggest that the examiner expects any particular answer,it is basically an argumentive q.

KINDS OF LEADING Q:
i. q assuring the controversed effect
q calling for anser ‘yes’ or ‘No’(a q admitting of being answered by a simple yes or no is regarded as generally a L.Q /improper q.
Alternative q (did you or did you not)

DETERMINATION WETHER Q IS L.Q OR NOT :
The Court should look beyond the substance with effect of inquiring.

WHEN A L.Q MAY BE ASKED?
138. When leading questions may be asked: Leading questions may be asked in cross examination:
u/ar: 138 of QSO, a leading q may be asked in cross-examination
• To adverse party: Reason =the reason is that the q which are put to a witness of adverse party in cross-examination being to test accuracy, credibility and general value of evidence given to shift the facts already stated by the witness.
Sometimes it becomes necessary for a party to put leading q in order to elicit facts in support of his case, even though the facts are elicit may be entirely unconnected with facts testified to in examination in chief.

• A leading q may be asked in examination in chief with the #_permission of the court
• To a hostile witness (ar:150) takes upon adverse attitude to him where a party may be allowed to cross examine its own witness.
• When the object of the leading q is to contradict another witness as to the expression used by him but which he denies having used, the ‘w’ may b asked leading q.
• When a witness has a ‘defected memory’,it may be agitated by few leading q.

#_Object to ask leading q:

Sometimes it is necessary to ask leading q to elicit facts in support of the case.
》》To ask material points
》》To put q in witness mouth
》》Assuring a fact proved

WHEN L.Q #_MUST_NOT BE ASKED: u/137.
When leading questions must not be asked:U/ar:137
(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.

#_General_Rule:
u/ar: 137 QSO a leading q MUST not be asked if
a. objected by the adverse party in
.Examination in chief u/ar:132(1)
.Re-examination u/ar:132(3)
#_EXCEPTION: u/ar:137(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.

MATTERS IN WHICH COURT SHALL PERMIT TO ASK L.Q:u/ar:137(2)
Introductory matters
Undisputed matters
Sufficiently proved matters
WHERE A L.Q CAN BE ASKED BY A PARTY TO HIS OWN WITNESS
If not objected by the adverse party ar:137(1)
With the leave of the court ar:137(1)
》》Introductory matters
》》Undisputed matters or matters sufficiently proved
》》Identification purposes
》》Contradictory purposes u/ar:140
》》To Assist memory of the witness u/ar:155
》》Witness for understanding of some issue (child,illiterate)
》》If nature of matter requires so
》》For the interest of justice
》》In cross Examination
POWER OF DISCRETION OF THE COURT u/ar:137

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Types of questions asked to write witnesses in Cross-Examination

Types of questions asked to write witnesses in Cross-Examination

Leading questions

Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

When they must not be asked

Leading questions must not, if objected to by the adverse party be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.

The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.

When they may be asked

Leading questions may be asked in cross- examination.

Questions lawful in cross-examination

When a witness is cross-examined, he may, in addition to the questions herein before 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 t expose him to a penalty or forfeiture.

When witness to be compelled to answer

If any such question relates to a matter relevant to the suit or proceeding, the provisions of section 132 shall apply thereto.

Question not to be asked without reasonable grounds

No such question as is referred to in section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.

Indecent and scandalous questions

The Court may forbid any questions 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 in issue exited.

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 need lessly offensive in form.

Question by party to his own witness

The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross examination by the adverse party.

Questions tending to corroborate evidence of relevant fact, admissible

When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred,

if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.

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LEADING QUESTION(Ar: 136-138)QSO,1984

LEADING QUESTION(Ar: 136-138)QSO,1984

One which leads the witnesses up to denied answer,one which is put in such a way as suggest to the witness the answer which is suggest or expected or wanted.it embodys a material fact admittance of a conclusive answer by a simple negative or affirmative way.QSO, 1984 has lay down a general rule that a party cannot ask a L.Q to his own witness during examination-in-chief and re-examination but a L.Q may be asked by adverse party during cross-examination.

TEXT OF RELEVANT PROVISION:

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 cross examination

o Cross reference:

Ar:132,141,144,146,149 of QSO,1984

o The whole CHAPTERX x OF THE EXAMINATION OF WITNESSES IS 

Important in Leading Question

EXPLANATION OF CONCEPT OF L QUESTION:

In common Law system that rely on testimony of witnesses, a L.Q is a q that suggests the answer or contains the information the examiner is looking for

For example:

You were at buffy’s bar on the night of July 15,weren’t you?

It suggests that the witness was at Duffy’s Bar on the night in q.The same q in a non leading form would be:

Where were u on the night of July 15?

The form of q does nt suggest to the witness the answer the examiner hopes to elicit.

It is important to distinguish bt L.Q and q that are objectionable because they contain implicit assumptions.The classic example is:

Have you stopped beating your wife?This q is not leading , as it does not suggest that the examiner expects any particular answer,it is basically an argumentive q.

DEFINITION OF L.Q U/AR:136. Leading questions: Any question suggesting the answer which the person putting in wishes or expects to receive is called a leading question.

KINDS OF LEADING Q:

i. q assuring the controversed effect

q calling for anser ‘yes’ or ‘No’(a q admitting of being answered by a simple yes or no is regarded as generally a L.Q /improper q.

Alternative q (did you or did you not)

DETERMINATION WETHER Q IS L.Q OR NOT :

The Court should look beyond the substance with effect of inquiring.

WHEN A L.Q MAY BE ASKED? 

138. When leading questions may be asked: Leading questions may be asked in cross examination:

u/ar: 138 of QSO, a leading q may be asked in cross-examination 

• To adverse party: Reason =the reason is that the q which are put to a witness of adverse party in cross-examination being to test accuracy, credibility and general value of evidence given to shift the facts already stated by the witness. Sometimes it become necessary for a party to put leading q in order to elicit facts in support of his case, even though the facts are elicit may be entirely unconnected with facts testified to in examination in chief.

• A leading q may be asked in examination in chief with the permission of the court

• To a hostile witness (ar:150) takes upon adverse attitude to him where a party may be allowed to cross examine its own witness.

• When the object of the leading q is to contradict another witness as to the expression used by him but which he denies having used, the ‘w’ may b asked leading q.

• When a witness have a ‘defected memory’,it may be agitated by few leading q.

Object to ask leading q:

Sometimes it is necessary to leading q to elicit facts in support of the case.

To ask material points

To put q in witness mouth

Assuring a fact proved

WHEN L.Q MUST NOT BE ASKED: u/137.

When leading questions must not be asked:U/ar:137 (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.

General Rule:

u/ar: 137 QSO a leading q MUST not be asked if

a. objected by the adverse party in 

.Examination in chief u/ar:132(1) 

.Re-examination u/ar:132(3)

EXCEPTION: u/ar:137(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.

MATTERS IN WHICH COURT SHALL PERMITTED TO ASK L.Q:u/ar:137(2)

Introductory matters 

Undisputed matters

Sufficiently proved matters

WHERE A L.Q CAN BE ASKED BY A PARTY TO HIS OWN WITNESS

If not objected by the adverse party ar:137(1)

With the leave of the court ar:137(1)

Introductory matters

Undisputed matters or matters sufficiently proved

Identification purposes

Contradictory purposes u/ar:140

To Assist memory of the witness u/ar:155

Witness for understanding of some issue (child,illiterate)

If nature of matter requires so

For the interest of justice

In cross Examination

POWER OF DISCRETION OF THE COURT u/ar:137

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