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Evidence (Law-470)

Course Outline - Fall 2013

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) Benthem on evidence
iii) 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
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.

Reading Material:

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 witnesss 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

Persons competent to be witnesses, Article 17


In matters of financial obligation , Article 17
Must direct and not hear say, Articles 70, 71

Oaths Act, 1873

Oath to witnesses, Section 5


Oath to accused, Section 5 of Oaths Act and Section 340 (2)

Competency and compellability of witnesses:

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

Credibility of a witness

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 accuseds
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) Courts 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 partys 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 courts 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) Moderndevices,maybeusedArt164