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.