The Law of Evidence Course Outline 1) Framework: i) The Constitution of Pakistan ii) Adjective laws, such as: a) Qanoon - e Shahadat 1984 (1984 Order); contains the general rules of evidence; it is the successor of Evidence Act 1872; its object is to bring the law in conformity with Injunctions of Islam as required by Art 227 of the Constitution; it applies to judicial proceedings. b) Relevant provisions of procedural laws such as: Code of Criminal Procedure 1897 (Cr.PC) Code of Civil Procedure 1908 (CPC) Hudood Laws Oaths Act, 1873 The Bankers Books Evidence Act, 1891 The Commercial Documents Evidence Act 1939 c) Power to legislate on Evidence: Item 56 Federal List, Part I; Part II, item 6; Items 5,12,16,46 Concurrent List d) Historical context of the Law of Evidence a) In Islam b) In Pakistan c) Anglo American model d) European Convention on Human Rights Reading Material: i) PLD 1995 Kar 469 ii) 1991 MLD 163 iii) Begum Rashida Patel PLD 1989 FSC 45 e) Understanding Evidence: Nature and meaning of Evidence Aims and objectives of Evidence Adjudication; the law of evidence and its role to promote procedural fairness
2) General Observations: i) the law should be developed on common sense lines Reg v Keasley (1992) AC 228, 236 ii) iii) Benthem on evidence Cross on evidence 1989 Current Legal Problems 21 3) Fundamental concepts of Evidence: a) Facts in issue b) Relevance c) Admissibility d) Burden of Proof Articles 117 to 1984 of 1984 Order i) its meaning in Article 117 ii) its meaning in Article 118, iii) the meaning of proceeding in Article 118 e) Presumptions f) Direct and circumstantial evidence g) Competency and compellibility (property in witnesses 1979 All ER 177) h) Proof as distinguished from evidence Reading Material: ii) Bashir ud din Sarkar AIR 1927 Cal. 966 iii) Rab Nawaz PLD 1994 SC 858 iv) State v Manzoor Ahmad PLD 1966 SC 664, 680 v) Begum Rashida Patel PLD 1989 FSC 95 vi) Reg v Kilbourne (1973) AC 729, 752: (1973) 1 All ER 440 i) Civil and Criminal Cases: features that distinguish them features common to them 4) Constitutional Law of Criminal Evidence: a) Articles 10, 13, 14, their relationship with the Law of Evidence b) Constitutional Fairness c) Exclusionary rule i) the traditional view ii) re evidence obtained in violation of the Constitution Law as in the US
Reading Material: Law as in the UK and under European Convention: section 78 of (UK) PACE Law in Pakistan d) Presumption of innocence: its constitutional status: in the US, in the UK and in Pakistan e) Can Legislature change burden of proof rule in criminal cases. 1) Sang - (1979) 2 All ER 1223 2) Wolf - 338 US 25:93 L Ed 1782 (1949) 3) Russell 411 US 423:36 L Ed 2d 366 (1973) 4) Miranda 384 US 436:16 L Ed 2d 694 (1966) 5) Mason - (1988) 1 WLR 139 CA 6) Khan Asfandyar Wali PLD 2001 SC 607, 911 7) R v Hunt (1987) 1 All ER 1 8) Mapp 6 L Ed 2d 1081 Burden of proof in criminal cases Articles 117 to 129 of Qanun-e-Shahadat (1984 Order) Degree of proof in civil cases generally is pre-ponderance of probability; In criminal case is beyond a reasonable doubt, which is a rule of prudence; These are judge made rules; Zakaullah 1991 SCMR 2126, 2133; Muhammad Ibrahim 1980 CLC 296 Abdul Qudus PLD 1984 FSC 69 Woolmington 1935 AC 462 Two distinct meanings of burden of proof Articles 117 and 118 of 1984 Order; Basir-ud-Din Sarkar AIR 1927 Cal. 966 Rab Nawaz PLD 1994 SC 858 Presumption of innocence and burden of proof; Ghulam Muhammad - 1980 P.Cr.LJ 1039 State vs. Farman PLD 1995 SC 1, 11 Burden may shift Manzoor Ahmed PLD 1966 SC 664, 680;
Legislature may change burden of proof rule, its effect Khan Asfandyar Wali PLD 2001 SC 607, 911 R v Hunt 1987 1 All ER 1 Burden of proof when an accused raise a plea in defense: Safdar Ali PLD 1953 FC 93 Nadeem ul Haq 1985 SCMR 510 Rab Nawaz PLD 1994 SC 858 Reasonable doubt its meaning: State vs. Manzoor Ahmed PLD 1966 SC 662 State vs. Mushtaq Ahmed PLD 1973 SC 418, 430 Evidence in criminal cases Sections 244, 540 Cr. P.C. Order in which evidence will be recorded Article 10 of 1984 Order; Evidence, its meaning See Article 2 (c) of 1984 Order, which defines but not exhaustively; Right of accused to be present Section 353 Cr.P.C. Presence can be dispensed with, Section 265 Cr.P.C. The right can be waived; When the accused has absconded, Section 87 and 88 Cr.P.C. Trial in absentia R v Jones (2002) 2 All ER 113; Mehram Ali PLD 1998 SC 1445, 1488; Mode of taking and recording of evidence, sections 355, 357, 359, 363 C.r.P.C. Examination of Witness: Examination in chief, cross examination, re examination Article 133 of 1984 Order; Leading questions, Article 136; When a witness turns hostile, Article 150; Impeaching a witness s credit, Article 151; Court question, Article 161 of 1984 Order read with Section 540 Cr.P.C. The judge must not assume the role of the prosecutor or that of judicial advocacy
R v Tueqet (2000) 2 All ER 872, 888; Ali Nawaz PLD 1963 SC 51, 86; Muhammad Azam PLD 1984 SC 94, 123 Proof and disproof, Article 2(4) (5) (6) of 1984 Order; Presumption of fact, of law, rebuttable, irrebuttable, Articles 96 to 98, 100, 129, 90 to 95, 99, 121, 55 and 128 of 1984 Order; Evidence and proof distinction Proof merely marks the effect of evidence; Suggestions in cross examination are not evidence; Chiragh 1998 SCMR 1847 Oral Evidence Oaths Act, 1873 Persons competent to be witnesses, Article 17 In matters of financial obligation, Article 17 Must direct and not hear say, Articles 70, 71 Oath to witnesses, Section 5 Oath to accused, Section 5 of Oaths Act and Section 340 (2) Competency and compellability of witnesses: Credibility of a witness The general rule, Article 15 of 1984 Order; Section 244 and 265 F Cr.P.C. Harmony Shipping (1979) 3 All ER 177, 180; Exceptions e.g. Article 4, 5, 6, 7, 8, 9, 12 Is not a matter of law; Demeanor of a witness, Section 363 Cr.P.C.
False in one thing, false in everything, the maxim not applied in Pakistan Ghulam Muhammad PLD 1951 Lah. 66 Ghulam Sikandar PLD 1985 SC 11, 23 Muhammad Sher PLD 1954 FC 84 Oral evidence, three categories Wholly reliable; Wholly unreliable; and Partly reliable, partly not reliable Muhammad Iqbal 1996 SCMR 908; Suspect evidence What is Junior Reid (1993) 4 All ER 95 requires corroboration Kilbourne (1973) 1 All ER 440; Corroboration meaning Kilbourne (1973) 1 All ER 440; Corroboration meaning Kilbourne and Irshad Ahmed 1990 P.Cr. LJ 374, 383; PLD 1988 Lah. 149 Its categories: a) Interested witness; it has acquired a technical meaning; Niaz PLD 1960 SC 387 Nazir PLD 1962 SC 269 b) Identity evidence; Turnbull (1976) 3 All ER 549; Scott vs. Queen (1989) AC 1242; Muhammad Arshad PLD 1995 SC 475 Farman Hussain PLD 1995 SC 1; Identity parades, their value Farman Hussain PLD 1995 SC 1 c) Child witness Farman Hussain PLD 1995 SC 1 d) Accomplice evidence; Article 16 read with Article 19, illustration (b) of 1984 Order;
Junior Reid (1993) 4 All ER 95; Ishaq PLD 1954 FC 335, 343; Influence of Islamic Law and the resulting change Federation vs. Muhammad Shafi Muhammad 1994 SCMR 932 Prosecution evidence Prosecution evidence may consist of: a) Real evidence, e.g. body, wound etc; Effect of dead body found; Medical, chemical examination etc. Sections 509, 510 Cr.P.C. Postmortem of female body Muhammad Iqbal 1996 SCMR 908 Medical evidence as corroboration: Muhammad Ahmed 1995 SCMR 127, 133, State vs. Muhammad Sharif 1995 SCMR 635, 647; b) Direct evidence, e.g. of an eye-witness c) Circumstantial evidence, e.g. in an un-witnessed crime; As opposed to hearsay, Article 71 of 1984 Order; As opposed to direct evidence Test is that it should exclude any reasonable hypothesis of the accused s innocence Allah Ditta PLD 1958 SC (Pak) 290; Muhammad Nazir Hussain 1969 SCMR 388; d) FIR, its nature and value as evidence in different circumstances: Muhammad Ashiq PLD 1957 SC (P) 293; Liaqat Ali 1981 SCMR 1130; Nasim Akhtar PLD 1968 Lah. 841; Muhammad Hanif PLD 1977 Lah. 1253; Lakhmir PLD 1968 Q 7; Ghulam Qadir PLD 1967 Pesh. 269
Its use: A.Nagesia AIR 1966 SC 119; Khalil Ahmed 1975 SCMR 442; Ismail 1976 SCMR 135 Hamid Khan PLJ 1980 SC 519 By culprit: If it contains confession of guilt against the culprit himself: Muhammad Saleh PLD 1965 SC 366; A.Nagesia AIR 1966 SC 119; Against others Ghandal PLD 1960 SC 137; Salman Shah PLD 1971 SC 751 e) Other police statements e.g. One made under Section 161 Cr.P.C. can be used for contradicting witness, Section 162 Cr.P.C Police diaries cannot be used as evidence at all; but can be used by the court, Section 172 Cr.P.C f) Statements by witnesses before Magistrate during investigation; Section 164 Cr.P.C. read with Section 244A and 265 J Cr.P.C. g) Dying declaration before Magistrate, Article 46 of 1984 Order Muhammad Aslam PLD 1978 SC 298 It is evidence and can form a basis of conviction: Reg v Osman (1881) 15 Cox CC 1, 3; Zarif PLD 1977 SC 612, 617 (modern approach) Ratten (1971) All ER 801; Its reliability: Bakhsheesh Singh AIR 1925 Lah. 549 Abdul Razik PLD 1965 SC 151;
Tawab Khan PLD 1970 SC 13 Muhammad Aslam PLD 1978 SC 298 Ratten (1979) 3 All ER 801 h) Recovery evidence, Section 103 Cr.P.C. Police officials as recovery witnesses Mushtaq Ahmed PLD 1996 SC 574; Mir Ahmed 1995 SCMR 614 Javed Masih PLD 1994 SC 314, 324 When section 103 does not apply Mir Ahmed 1995 SCMR 614 i) Confession evidence: admissions Articles 31 to 45 of 1984 Order; confession, its meaning; Pakala N. Swami - AIR 1939 PC 47; Liaqat Bahadur PLD 1987 FSC 43, 49; Confessions made to police are not admissible at all; Article 38 of 1984 Order; read with Section Cr.P; A Nagesia AIR 1966 SC 119, 123 Confession made under threat etc. are not admissible Articles 37 and 41 of 1984 Order; Articles 39 40: Their function Custody, its meaning; PLD 2004 Q 118; AIR 1972 SC 3; Article 40, its possible un-constitutionability Judicial confessions: Recorded under Section 164 read with Section 364 Cr.P.C. and Chapter 13 of the High Court Rules and Order V. III, and Article 91 of 1984 Order
Queen v Bahu Lal ILR 6 All. 509; Naqeebullah PLD 1978 Sc 21, 33; When such a confession is retracted at trial: Dhani Bakhsh PLD 1975 SC 187 Naqeebulla PLD 1978 SC 21, 32 Extra judicial confession that is, one made before a person: Other than Magistrate, its evidentiary value: Ahmed Hassan 2001 SCMR 505; Zia ur Rehman 2001 SCMR 1405 j) Motive evidence; Article 21 of 1984 Order Motive, its meaning Reg vs. Hyam (1975) AC, 55, 73; Its evidentiary value: Moazam Shah PLD 2001 SC 548, 463; Habibullah PLD 1969 SC 127 Sharmpal Sing (1962) AC 188, 197 Muhammad Sharif 1995 SCMR 635, 647; Muhammad Ilyas PLD 1967 SC 443, 447; Documentary evidence What it consists of Article 2 (1) (C) (ii) of 1984 Order; Mode of proof Articles 72, 73, 74, 75, 76, 78, 79 and 84 etc of 1984 Order; Public documents Article 84, 88, 89 of 1984 Order; Private documents Article 86 Presumption of genuineness Article 90 to 101
Objection as to mode of proof must be taken at the earliest Gopal Das AIR 1943 PC 83; Abdullah PLD 1968 SC 140; k) Opinion evidence Opinion experts Articles 59 to 65 of 1984 Order Opinion on foreign law Steamer supply Co. PLD 1993 SC 88; Islamic law is not foreign law; Handwriting expert Ali Ahmed PLD 1962 SC 102; Sahib Khan PLD 1994 SC 162; Finger print expert Shah Muhammad 1990 P Cr. L J 1057; Fire arm expert Kalka PLD 1958 SC (Ind) 347; Muhammad Aslam 1970 SCMR 450 Sardar Khan 1998 SCMR 1823 Opinion of investigation officer as to guilt or innocence is admissible Muhammad Iqbal 1996 SCMR 918
Evidence in Civil Cases: 1) Burden of proof ; Articles 117 to 129 of 1984 Order: i) Its special significance in civil cases ii) Articles 119,122,125,126,127,128,129 their significance in the context of civil cases iii) Relationship between burden of proof and presumptions iv) In civil cases, burden of proof keeps on shifting v) As used in Articles 117 and 118 vi) Its relation with right to begin vii) Standard of proof in civil cases: is preponderance, but even in civil cases, the standard beyond reasonable doubt may apply Reading Material: i) Sardar Bibi PLD 1954 Lah 480, 483 ii) Lakshmanna AIR 1949 PC 278, 285 iii) Muhammad Ibrahim 1980 CLC 296 iv) Zakaullah 1991 SCMR 2126, 2133 v) Rashid Ahmed Khan PLD 1994 SC 36 2) Documentary Evidence and its importance in civil cases: i) Documents, basis of claim or defence ii) Documents upon which a party relies in support of his claim or defence iii) Relevant provisions in the CPC regarding their reception or rejection iv) Impounding of documents and sections 33 and 35 of the Stamp Act 1899 v) Exclusionary rule: a) discretion in case of official record of undoubted authority to admit documents ; b) discretion to be exercised when it is necessary for just decision of case. vi) Public documents a) Meaning of public documents Art 85; and Art 150 of the Constitution b) Meaning of private documents Art 85 c) Registration of documents under the Registration Act 1908 d) Record maintained under the Land Revenue Act e) Presumption as to the genuineness of public documents vii) Mode of proof
of contents Art 72 to 77 a) By primary evidence; its meaning b) By secondary evidence; its meaning Of execution Art 78 to 84 Of public documents Art 87 to 89 Objection as to mode of proof as distinguished from admissibility i) Gopal Das AIR 1943 PC 83, 87 ii) Abdullah v Abdul Karim PLD 1968 SC 140 iii) Muhammad Ashraf PLD 1973 SC 160, 178 Reading Material: i) Kumar AIR 1929 PC 99 ii) Kanda PLD 1949 PC 270 iii) Allah Ditta PLD 1961 Lah. 643 iv) Allah Varyo 1990 CLC 1899 3) Witnesses: i) Aid of court to procure them; ii) Court discretion to summon or not to summon witnesses; iii) Evidence by affidavit; iv) Court s power to examine a person present in court v) Test to judge evidence (Bhojraj v Sita Ram AIR 1936 PC 60 4) Order in which evidence will be recorded is regulated a) For example: i) In civil cases by Order XVIII, rules 1 and 2 of CPC; and ii) When not so regulated, by the discretion of court (Art 130 of 1984 Order) b) Right to begin: i) Begins with stating the party s case (Order XVIII, rule 1) ii) Begins with hearing his evidence iii) When there are several issues, and onus of some is on other party, Order XVIII, rule 3, gives options Zafar Iqbal 1988 PLD 2022 Ch. Muhammad Abdus Salam 1996 SCMR 351 5) Order of examination of witnesses Art 133 of 1984 Order:
i) Examination in chief ii) Leading question what is, Art 136, cannot be asked in examination in chief except with court s permission; but may be asked in cross examination iii) Cross-examination; Art 141 149 what questions may be asked iv) Hostile witness cross examination by party who called him Art 150 v) Power of court : To regulate and control proceedings To report against advocate To ask questions, but there is no such thing as judicial advocacy To recall any witness (Order XIX rule 17) Reading Material: i) M.Ibrahim PLD 1955 FC 14,16 ii) IR v Turgel (2000) 2 All ER 872 (this was a criminal case, but the ratio applies also to civil cases iii) Ali Nawaz Gardezi PLD 1963 SC 51, 86 this too is a criminal case, but applies to civil cases iv) Muhammad Azam v Muhammad Iqbal PLD 1984 SC 95, 123 6) Facts which need to be proved: i) Facts of which the court may take judicial notice Articles 111,112 of 1984 Order a) But do not include facts of which the judge has personal knowledge b) List in Art 112 is not exhaustive ii) Facts admitted, Art 113 a) Facts which parties agree to admit b) Facts which, by mode of pleadings, are deemed admitted c) Facts admitted are not conclusive proof but may operate as estoppels Art 114 116 d) Admission its meaning Art 30; e) Evidence of admission is not relevant if parties had agreed that evidence not be given Art 36 f) Admission : i) Governed by CPC ii) That can be viewed as previous statements Art 140 Firm Malik Desraj AIR 1946 Lah. 65 Sikandar Hayat PLD 1971 SC 730, 735
7) Facts on which evidence may be given: Article 18 i) Facts in issue ii) Relevant fact Art 19 to 69 iii) Distinction between them Art 2 iv) Relevancy and admissibility distinction and objections about them. Abdullah v Abdul Karim PLD 1968 SC 140 8) Oral Evidence: i) All facts, except the contents of documents, may be proved by oral evidence Art 20 ii) Competence and number of witnesses; Fed v Muhammad Shafiq 1994 SCMR 932 iii) Must be direct meaning iv) Must not be hearsay - meaning v) Oaths Act, its provisions Asifa Sultana PLD 1970 SC 331 Salim Ahmad 1974 SCMR 224 Attique Ullah 1981 SCMR 162 vi) Maxim false in one thing, false in everything its application to civil cases vii) Parties as their own witnesses a) The right to testify; b) Failure to testify may raise an adverse rebuttable presumption Art 129 c) Art 163 a new concept i) Haw Tua (1981) 3 All ER 14 ii) Reg v IRC (1991) 2 AC 283, 300 iii) Allah Ditta AIR 1930 Lah 401 iv) Mahunt Shatrungan Das AIR 1938 PC 59 9) Suspect evidence: i) Its meaning; ii) Corroboration, its meaning; iii) Its examples: a) Interested witness; b) Child witness Kilbourne (1973) 1 All ER 440 Irshad Ahmad 1990 P CrCP 374,383 Abdullah Shah 1968 SCMR 882
State v Farman Hussain PLD 1995 SC 1,2 10) Estoppel its meaning i) By representation its example ii) Promissory estoppel iii) Estoppel and res judicata iv) Estoppel as a weapon of defence v) No estoppel against law Dawson Bank AIR 1935PC 79, 82 Pakistan v Salahuudin PLD 1991 SC 1991, 546, 557 Govt v Muhammad Ashraf PLD 1993 SC 176, 183 Gadoon Textile Mills PLJ 1997 SCMR 641 Al Shamrez 1986 SCMR 1917 Govt v Muhammad Ashraf - PLD 1993 SC 176, 182 Sitaram (1886) 8 All 324, 332 Western Fish Products (1981) All ER 204, 219 High Tree House (1947) KB 130 11) Opinion Evidence i) Is exception to the general rule ii) Of experts iii) As to relationship Shah Nawaz PLD 1976 SC 767 Zakaullah 1991 SCMR 2126, 2134 PLD 1993 SC 88 12) Miscellaneous i) Improper admission and rejection of evidence its effect (Art 162) ii) Acceptance and its denial of claim on oath, Art 163 (a new provision) iii) Modern devices, may be used Art 164