Q.S.

O (Leading Question) by Zahra Syed

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Topic: 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 buffys bar on the night of July 15,werent you?

It suggests that the witness was at Duffys 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

CONCLUSION

Q.S.O (Private and Public Documents by Admin Khadija Shan Elahi

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4th Topic shared by: Khadija Shan Elahi..........

Topic: "Private and Public Documents"............

Q. Define public and private documents? How they can be proved?

SYNOPSIS

INTRODUCTION

DEFINITION OF DOCUMENT

RELEVANT PROVISIONS

CROSS REFERENCES

IMPORTANCE OF DOCUMENTARY EVIDENCE

TYPES OF DOCUMENTS

PUBLIC DOCUMENTS under Article 85:

NEED OF EVIDENCE:

PUBLIC DOCUMENTS HOW PROVED Under Article 84:

1. Opinion of expert Article 59:

2. Opinion of the person so acquainted Article 61:

3. Person who writes the document:

4. Who has seen the writing actually:

DISCRETION OF COURT
BURDEN OF PROOF

Certified Copies Of Public Documents Article 87:

1. Who may issue:Payment of legal fee:

2. Issuance on demand:

3. Certification on foot of document:

4. Name of issuing authority:

5. Designation:

6. Signature:

7. Date:

8. Seal:

Presumption as to genuineness of certified copies Article 90:

PRIVATE DOCUMENTS ARTICLE 86:

HOW A PRIVATE DOCUMENTS IS PROVED?

Material...........

INTRODUCTION

DEFINITION OF DOCUMENT

Black's Law Dictionary

An instrument on which is recorded, by means of letters, figures, or marks, matter which may be
evidentially used. In this sense the term document applies to writings; to words printed,
lithographed, or photographed; to seals, plates, or stones on which inscriptions are cut or
engraved ; to photographs and pictures; tomaps and plans

According to Qanoon E Shahadat Order 1984: 2(1)(b)

"Document" means any matter expressed or described upon any substance by means of letters,
figures or marks, or by more than one of those means, intended to be used, or which may be used,
for the purpose recording that matter;

Illustrations

A writing is a document;

Words printed, lithographed or photographed are documents ;

A map or plan Is a document;

An inscription on a metal plate or stone is a document ;

A caricature is a document.
Pakistan Penal Code 1860: Sec 29

Document is a material written or described on any substance and carries some meaning and can
be produced as evidence in court. All written materials regardless written on cloth, paper, stone,
leather, tree, bones etc. is document if it carries some meaning within the meaning of this section.
It may be ABC or 123 or ?-@$/=, but it should must carry meaning. Bloodstains on cloth are also a
document. Black board, affidavit, engraved name on tree, glass, plastic, iron, brick is document.
Engraved engine number on motor cycle or pistol is document. Wound mark on body is also a
document, but an expert should medically examine it and his report will termed as document.

RELEVANT PROVISIONS

84 TO 89 of Qanoon e Shahadat Order 1984

CROSS REFERENCES

Art: 72 to 76 QSO

Art: 59, 61, 78, 84, 90 QSO

IMPORTANCE OF DOCUMENTARY EVIDENCE

The exclusion of oral by documentary evidence.

TYPES OF DOCUMENTS

Publicdocument

Private document

PUBLIC DOCUMENTS Under Article 85:

Only such documents are considered to be public document as form the acts or records of public
officers. The mere fact that a document is kept in a public office does not entail the inference that
it is a public document. It must be shown that it was prepared by a public servant in the discharge
of his official duty. It can be produced as evidence without seeking of permission from court.

Following are the public documents as enumerated under Article 85:

1. Record or Act of the sovereign such as statues, gazettes, proclamations, and such like that.

2. Act or record of the tribunals such as records of courts of justice, decrees, judgements, writs,
warrants, bill, etc.

3. Act or record of the public officers, legislative, judicial and executive of any part of Pakistan or
of a foreign country.

4. Public records kept in Pakistan of private documents such as registries, Wills, etc.
5. Record of judicial proceedings such as record of confession made by Magistrate, deposition
(attestation, announcements) of witnesses, oral information given to the pubic officer as to the
commission of a cognizable offence and reduced to writing by him u/s 164 of Code of Criminal
Procedure.

6. Any documents which maintains public servant under any law of Pakistan such as mortgage
deed register according to law is a public document under this clause.

7. Registered documents the execution whereof is not disputed.

R.Sarala vs Chandrasekar on 3 January, 2012

The following documents are public documents:-

(1) documents forming the acts or records of the acts-

(i) of the sovereign authority,

(ii)of official bodies and tribunals, and

(iii)of public officers, legislative, judicial and executive

(2)public records kept in [any State] of private documents.

NEED OF EVIDENCE:

Court has to arrive on truth. Court does not know the actual and factual position of the facts in
issue. How a court may arrive to truth? It is only evidence, which brings court to truth. Only
evidence concludes such statement, which is given orally and admissible.

PUBLIC DOCUMENTS HOW PROVED Under Article 84:

There are certain modes of proving documents as follows:

1. Opinion of expert Article 59:

Where court becomes unable to ascertain the originality of the fact, opinion of an expert resolves
the problem.

2. Opinion of the person so acquainted Article 61:

Person who is so acquainted with the handwriting of the writer, e.g., Manager may prove the
handwriting of his Steno.

3. Person who writes the document:

Person who actually writes or signs the document may also prove the truth of the document.

4. Who has seen the writing actually:

Person who actually saw the party wrote or signing the document may also prove its contents.

DISCRETION OF COURT
Court may compare the signature, writing, or seal itself. Person present in court is asked to
produce his writing, signature, or seal to append before court. Court itself examines the
originality.

The court may compare the disputed signature, writing, or seal of a person with signatures,
writings, or seals which have been admitted or proved to the satisfaction of the court to have
been made or written by that person.

The disputed writing must purport to have been written by the same person, that is to say, the
writing itself must state or indicate that it was written by that person.

BURDEN OF PROOF

Maxim:

secundumallegata et probat

person alleging a fact must prove it

. Plaintiffs having relied upon documents in question were required to satisfy court about the
correctness and genuineness of the same.

Where such signature, writing or seal on particular document is not proved or admitted to be
genuine, it cannot be legitimately used for comparing it with the signature, writing, or seal on
other documents.

Certified Copies Of Public Documents Article 87:

Under this Article certified copy of public record is defined. Following are the ingredients to form a
public record as certified copy:

1. Who may issue:

A public officer in whose custody public record is kept ordinarily during the course of normal work
is authorized by law to issue certified copy of public record. Person who does not keep such record
in ordinary course of official duty is not authorized by law to issue such certified copy.

2. Payment of legal fee:

It is very important part of the issuance of certified copy of public record that fee has been paid
for it before its issuance.

3. Issuance on demand:

Person who has right to inspect the record may apply for the certified copy of public record. It is
not issued without application of its demand.

4. Certification on foot of document:

At the foot of the copy from public record, officer authorized puts the words certified to be true
copy. Mere photocopy of public record does not form certified copy unless it is specifically
certified as provided in law under Article 87 of the Qanun-e-Shahadat Order.

5. Name of issuing authority:

Person who is issuing the certificate shall mention his name on certified copy.

6. Designation:

Authority issuing certified copy shall also provide her designation as to have authority to issue
such certified copy.

7. Signature:

Officer issuing the certified copy puts his signature below the words certified to be true copy.

8. Date:

Date is mentioned on which certified copy is issued.

9. Seal:

Certified copy of public record remains incomplete until or unless official seal is not put into it.

1. Government notification may be proved by producing a copy of the Gazette in which it is

published

2. Proceedings of the Legislature may be proved by the journals of those Legislatures, or by

published Acts or by copies purporting to be printed by Government.

3. Proceedings of municipal body may be proved by a copy of which proceedings certified by the
keeper thereof, i.e., secretary of municipality.

4. A foreign public document may be proved by the original or by a certified copy. But in the latter
case, the legal keeper of the document must certify the copy and there must be a certificate by a
notary public or a diplomatic agent, to the effect that the legal keeper of the original has certified
the copy.

Presumption as to genuineness of certified copies Article 90:

Law raises a presumption as to the genuineness of certificates, certified copies or other documents
which purport to be certified by any officer of the Central Government or by duly authorized
officer in an acceding or non-acceding State.

PRIVATE DOCUMENTS ARTICLE 86:

All the documents, which do not fall within the definition of public documents are private
documents. All the documents, which are not defined as public documents, are private
documents.

Smt. RekhaRanaAndOrs. vs Smt. Ratnashree Jain on 17 August, 2005

Private documents: All other documents are private. Documents executed by any person is called
private document such as:A deed of sale is a conveyance orA deed of conveyance or other
document executed by any person.

HOW A PRIVATE DOCUMENTS IS PROVED?

Generally the contents of documents are proved by primary or secondary evidence. Art:75 gives
preference to primary document, however there are certain exceptions to this general rule. It is
proved either by production of original document or by giving its copy. This law embodies the
general rule that the contents of a document may be proved either by primary or by secondary
evidence. This law rests on the maxim that the best evidence must always be produced. The
reasons are simple and obvious enough, as dictated by common sense and long experience. Since
the best evidence of the contents of a written instrument is the instrument itself, that must be
produced and no secondary evidence of its contents will be admissible unless the absence of the
original is satisfactorily accounted for. For example, by proving that it is lost or destroyed, or that
it is in possession of the opposite party and he will not produce it after a notice to produce has
been duly served upon him.

Any question....?.....Please ask through comments....

Q.S.O (Competency of a Witness by Fareeha Javed)

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8th Topic shared by: Fareeha Javed

Topic: ''COMPETENCY OF A WITNESS''

Outline:

Q. Who may testify in court of law?

Q. How many witnesses are required to prove any fact or

Q. Who is a competent witness?

Introduction

Statutory Reference

Meaning of witness

Meaning of competency of witness

General rule about competency of witness

Qualification for competent witness

1. Competent to understand question

2. Capable of giving rational answers

Object to determine competency

Test for determining competency

Disqualification of a person to become witness

Competency of child witness

1. Decision as to competency of a child witness

2. Preliminary inquiry to determine competency of a child witness

3. Appreciation of evidence of child witness

Competency of a lunatic to be witness

1. Duty of court

Competency and number of witness u/A 17 of Q.S.O.

1. Number of witness in matter pertaining to financial or future obligation.

2. Number of witnesses in Hadood cases.

3. Number of witnesses in criminal cases liable to Tazir.

Conclusion

Q.S.O (Accomplice) by Admin Khurram Jafri

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2nd Topic shared by: Khurram Jafri........

Question:

Define Accomplice. What is the evidentiary value of his evidence? What is the nature of
corroboration required to give credit to his evidence?

Answer:-

OUTLINE :-

1. Introduction

2. Relevant law on the subject

I. Article 16. Accomplice-

II. Article 129 Court may presume existence of certain facts

III. Article 43. Consideration of proved confession affecting person making it and others jointly
under-trial for same offense.

3. Who is an accomplice?
4. Categories of Accomplice

I. Principal Offender of first degree and second degree.

II. Accessories before the fact.

III. Accessories after the fact.

5. Participes Criminis (Participates in commission of actual crime)

6. Cases in which a person has been held to be an accomplice even if he is not Participes Criminis.

I. Receivers of stolen property.

II. Accomplices in previous similar offences committed by the accused on trial

7. Accomplices and Accessories Distinction and Similarities.

8. Trap Or Decoy Witness.

9. Approver

Test of Approvers Evidence.

10. Evidentiary Value of Accomplices Evidence.

11. Corroboration

Reasons for requiring corroboration.

I. He may swear falsely, just to shift the guilt to other criminals.

II. He is giving evidence under the umbrella of implied pardon and this hope would lead him to
favor the prosecution.

III. He is likely to disregard the sanctity of Oath.

IV. As he knows all the facts, it would be easy for him to involve an innocent person, without much
fear of detention.

Guiding Principles for corroboration:

1. Correction must be as to

a. The commission and circumstances of crime.

b. The identity of each accused.

c. Actual participation of each accused in the crime.

2. In case of several accused, the corroboration must be as to all of the persons affected by the
evidence.

3. An accomplices evidence must not be corroborated by another accomplice.

4. Evidence for corroboration must originate from independent and reliable sources.

5. Confession of co-accused cant be accepted as corroboration though it may be taken into

consideration.

6. Corroboration need not be direct evidence, it may be circumstantial.

7. Corroboration must be regarding material particulars, which obviously would depend on the
facts of each case.

12. Evidence of Accomplice not permissible in Hudood and Qisas cases.

13. Object.

Accomplice evidence is admitted as it is generally impossible to get sufficient evidence for many
heinous crimes, unless one of the participators disclosed the circumstances within his knowledge,
due to tender of pardon.

14. General Principles Relating to Accomplices Evidence.

1. Accomplice and approver are legal terms which are commonly known as Sultani Gawah or
Wada Maaf Gawah.

2. If one person provides evidence before the court, in respect of the offence committed by him
and the accused jointly, then that person in legal lexicon is known as accomplice.

3. Accomplice literally means a person who helps another to commit a crime.

4. Accomplice means a partner in crime or a guilty associate.

5. Accomplice is a person who makes admission of facts showing that he had a conscious hand in
the commission of offence.

6. An accomplice who has been pardoned to stand as a witness against his other co-accused
persons is known as approver.

7. General law is that conviction can be based on uncorroborated evidence of an accomplice.

(Article 16 Qanun e Shahadat Order).

8. However, the illustration (b) of Article 129 provides that the courts should treat an accomplices
statement as unworthy of credit.

9. Therefore, as an abundant caution and rule of prudence and practice, the courts require
corroboration of evidence of accomplice.

10. Corroboration may not be of the entire incident rather it is sufficient if the corroboration
relates to material particulars.
11. The purpose of corroboration is two folds i.e., firstly, the courts should know that the
accomplice was actually involved in the commission of the crime and his evidence is credible i.e,.
he is a reliable witness; and secondly, that courts should seek corroboration of the approvers
evidence with respect of the part of other accused persons in the crime.

12. The evidence of the accomplice with respect to other accused person should be of such a
nature to connect the other accused with the commission of the crime.

13. The corroboration may not be of an independent witness who can narrate the whole incident
of his own knowledge, because then that independent witness would be the main witness and
there would be no need of evidence of the accomplice.

14. However, an independent witness may appear to narrate part of the incident within his
knowledge.

15. Corroboration may relate to circumstantial evidence which connects the accused with the
commission of the crime.

16. Corroboration must not only be relating to the circumstances of the crime but also to the
identity of the accused with the commission of the crime i.e,. the acts done by the accused.

17. The corroboration must be by some evidence other than that of another accomplice, and
therefore one accomplices evidence is not corroboration of testimony of another accused. The
principle is that one tainted piece of evidence cannot corroborate another tainted piece of
evidence.

18. Corroboration may be by oral or documentary evidence.

19. If the accomplice is giving evidence against more than one accused then his evidence may be
believed only against the person against whom the evidence is corroborated and may be
disbelieved against the person against whom it is not corroborated.

20. Trap or Decoy witness. If a witness has made himself an agent for the prosecution before
associating with the offenders/wrong doers or before actual preparation of the offence, he would
not be regarded as an accomplice. Therefore, corroboration of such a witness is not a legal
requirement. However, courts may still require corroboration.

21. Object of admission of accomplices evidence is that it is generally impossible to get sufficient
evidence of any heinous crimes, unless one of the participators discloses the circumstances within
his knowledge, due to the tender of pardon.

22. In cases related to Hudood and Qisas, the evidence of accomplice is not admissible.

23. However, in cases relating to Tazir, as the legislature may provide as many offences as it
requires, it may also prescribe the procedure for the proof of such offences and there is no bar to
the recording evidence of accomplices in cases of Tazir, if the legislature treats accomplice as a
competent witness in cases of Tazir.

24. The double test provided for the evidence of the accomplice is that not only he is a reliable
witness as is provided for all the other witnesses but also that his testimony is corroborated in
material particulars.
25. If the trial is by jury, then the judge must inform the jury that although conviction may be
based on uncorroborated evidence of accomplice, the jury should look out for any corroboratory
material if available before passing a verdict.

26. If the judge does not inform the jury of looking out for corroboratory material, the same may
vitiate the trial.

15. Case Laws.

1. 1994 SCMR 932: An Accomplice is not a competent witness in cases of Hadd and Qisas.

2. AIR 1957 SC 637: An approvers evident to be acceptable must satisfy two tests. Firstly, his
evidence must show that he is reliable witness and secondly, his evidence must receive sufficient
corroboration.

If any question....please ask through comments....

Q.S.O (Identification Parade) by Fouzia Rana Adv

Q.S.O Outlines + Material Sharing Competition......

6th Topic shared by: Fouzia Rana Adv......

Topic: "Identification Parade"

Outline:

Definition by oxford learners dictionary

Explanation of identification parade

Relevent Section & procedure while conducting identification parade

Object of Identification Parade

Relevancy and Evidentiary value of Identification

Some Important Case laws

Conclusion:

Definition by oxford learners dictionary

A row of people, including one person who is suspected of a crime, who are shown to a witness to
see so that he or she can recognize the criminal.

IDENTIFICATION PARADE:
An examination conducted by the magistrate during the course of investigation, for the purpose of
identifying a culprit through victim or witness is identification parade.

Identification parade is a technical procedure in which a criminal suspect and other similar persons
are shown to the witness in order to find the actual culprit, and to launch a prosecution against
him.

The idea of Identification parade is to test the veracity of the witness in the question of his
capacity to identify, from among several persons made to stand in a queue, an unknown person
whom the witness had seen at the time of occurrence.

In cases where the identity of the accused is not known to the eye-witness, it is essential for the
investigating officer to get such suspect identified from eye-witness in a test identification parade,
which has mainly two works - a) Ensures that investigation is proceeding on a right track, b)
Ensures that the eye-witness's memory regarding the identity of the appellant.

Further, there are certain principles with must be followed while conducting the identification
parade. The establishment of these principles can be done examining the witnesses who
conducted the identification parade i.e. they must be put to the cross examination by a
magistrate.

Further, if the manner of holding the identification parade throws suspicion on police, then the
Identification parade would not have any evidentiary value. It is also true that the presence of
police officer and the public prosecutor at the place of the identification parade would not vitiate
it, when there was no prejudice against the accused.

The parade should be held by a magistrate or any officer who is not a police officer because the
police should not take part in the identification parade.

RELEVENT SECTION

Identification parade is conducted under Section 22 of the Qanun-i-Shahadat Order 1984.Its

procedure is explained in the high court rules and the Sindh criminal circular. The Supreme Court
had also set some parameters in this connection in 1996.

The related law and procedure says that the identification parade must be held as soon as possible
after the arrest of the accused but not later than 15 days and the police have to ensure that the
witnesses or complainant have not seen the accused after the incident.

The parade is always held for two purposes first to establish the identity of the accused and,
second, to assign the role played in the commission of an offence. A witness must disclose the
context in which he or she identifies the accused before the parade.

An identification parade is considered invalid when no role is attributed to the accused during the
commission of the offence while an identification test with an unexplained delay of one week
conducted not in accordance with the rules cannot be relied upon.
It is the responsibility of the relevant court staff to arrange nine muffled faces and their ages,
height, body and colour must be similar to that of the accused.

The judicial magistrates concerned have to ask them to line up with the accused and after that
they call the witness and ask him to identify the accused and assign his role in the case. Then the
JMs have to ask the witness to leave the courtroom and change the previous position of the
accused from the queue before calling the witness for a second round. The same procedure is
adopted in the third round.

The identification of a voice is conducted when the witness is blind or he has only heard the voice
of the accused during the commission of the crime and the same rules and procedure are followed
in voice identification.

OBJECT OF IDENTIFICATION PARADE

The object behind the identification proceeding is to find-out whether the suspect (accused) is the
real offender or not. Sole purpose of identification is to ensure that an innocent person, either
deliberately or by mistake is not involved. Although, Identification is not legal requirement,
however, when necessary, it is the duty of court to examine that all possible steps were taken for
holding fair identification parade and the witnesses at their own correctly picked-up the culprits.

An identification parade, if it has to have any value must be held by a magistrate and in the
absence of police.

RELEVANCY AND EVIDENTIARY VALUE OF IDENTIFICATION:

In cases, where the offenders are not caught at the spot, the names of the culprits are not found in
the first information report, and they are caught after some time, the identification parade is held
and often the fate of the prosecution case depends upon the satisfactory character of
identification proceedings in such cases.

Identification test of accused person cannot as a rule form sufficient basis for conviction, yet can
necessarily be used in support of other evidence against them.

The fact of identification in a parade by itself not substantive evidence but is admissible under
article 22, and provides strong corroboration to the identification made in court.

SOME IMPORTANT CASELAWS:

Description of the accused was not given in Police statement. Such omission does not reduce value
of identifications1980 PCr.LJ 836.

Incident took place during broad daylight. The encounter and grappling took place between the
accused and identification witness. The witnesses had no enmity with the accused persons and
had no reason to implicate them falsely. The evidence of witnesses was straightforward, natural
and reliable without any reason to doubt the same. The accused were correctly identified by
prosecution witnesses in circumstances.1991 PC.LJ 2040
The court before acting upon the evidence of identification parade must look for some
independent evidence, direct or circumstantial to eliminate chances of false implication. 1991
PCr.LJ 1145.

Delay in holding identification test.Value of test reduced: The identification of the accused after
12/13 days of his arrest diminishes the evidentiary value of the test..PLD 1978 Quetta 191.

Identification Parade: When accused was charged in the F.I.R and in statement under S.161 , Cr.P.C
by the description of their structure, then identification in a formal parade was a must. 2003
PCr. LJ .1928.

- Ss.395 & 412---Qanun-e-Shahadat (10 of 1984), Art, 22---Punjab Criminal Prosecution Service
(Constitution, Functions and powers) Act (III of 2006), Ss. 10 & 12---Dacoity and dishonestly
receiving property stolen in the commission of dacoity---Identification Parade---Procedure of
arrangements---Guidelines by High Court---procedure for making arrangements for identification
parade easier was prescribed by High Court for circulation to Prosecutor General, Advocate-
General, Additional Inspector general of Police (Investigation) and all the Sessions Judges of the
Province, who shall pursue the same and circulate it to all concerned and subordinate courts and
offices for appropriate legal action and observance.

Walayat Versus State

2008 PLD 470

Lahore-High-Court-Lahore

CONCLUSION:

Identification parade must be identified by the eye witness if the eye witness is concealed it lose it
sanctity.Identification proceedings are facts which establish the identity of the accused persons
and are themselves relevant. But evidence of identification parade is only relevant if it is
conducted in-accordance with the requirements of article (22) of Qanoon-e-shahadat order,

It must be remembered that holding of identification parade is not a requirement of law but only
one of the methods to test the veracity of the evidence of an eye-witness who has had an occasion
to see the accused and claims to identify him.

Ask question, if any, through comments....

Q.S.O(Primary & Secondary Evidence) by Admin Mishi Ch

Q.S.O Outlines + Material Sharing Competition......

7th Topic shared by: Mishi Ch...............

Topic: "Primary and Secondary Evidence"....

Primary and Secondary Evidence

Q What do you understand by Primary and Secondary documents. Under what cases secondary
evidence is admissible in evidence

Synopsis

1 introduction

2 Meaning of document

3 Relevant provision

4 Types of document

5 Proof of contents of document u/art 72

6 Primary evidence u/ Art 73

I. Meaning of primary evidence

II. Documents included in primary evidence

A- Documents executed in several parts

B- Documents executed in counter parts

C- Documents made by uniform process

7 Secondary evidence u/ Art 74

I. Meaning of secondary evidence

II. Documents included in secondary evidence

A- Certified copies of documents

B- Copies made from the original by mechanical process

C- Copies made from or compared with the original

D- Counter parts of the documents as against the parties who did not execute them

E- Oral account of the contents of document given by some person who has himself seen it

The list provided by article 74 is an exhaustive list of secondary evidence.

8 Proof of documents by primary evidence u/art 75

I. General Rule u/art 75

Documents must be proved by primary evidence

9 Exception to the General rule u/art 76

10 Cases in which secondary evidence is admissible in evidence

i. Original document is in possession of

a. Opposite party

b. person beyond the reach of court

c. person not subject to the process of court

d. a person failing to produce document even after the notice of court

ii. Original is voluminous document

iii. Production of original is impossible

iv. Admission of document

v. Original is lost or destroyed

vi. Original is public document

vii. Certified copies of original permitted by law

viii. Original consist of numerous accounts

ix. Original is a part of judicial record

11 Reasons for giving secondary evidence

12 Object of secondary evidence

13 Application of article 76

14 Critical Alysis

1. Introduction

The facts may be proved by producing documentary evidence in the court. The documentary
evidence is divided into two types primary and secondary evidence. The admissibility of primary
evidence is based on the Best evidence rule and primary evidence is requires to be given first but
secondary evidence is also admissible as rule of Necessity because of Impossibility of producing
the primary evidence.

2. Meaning of documentary evidence u/art 2(i)c(ii)

All documents produced for the inspection of court are called documentary evidence.

3. Relevant Provisions

Article 72 76 of QSO 1984

4. Types of Documentary evidence

Two types
 Primary evidence

Secondary evidence

5. Proof of the contents of documents u/art 72

Contents of the documents may be proved either by primary evidence or secondary evidence

I. Primary evidence

Meaning

>An authentic document or item that is offered as proof in lawsuit

>primary evidence means the original document itself produced before the court for inspection

II. Documents included in Primary evidence U/Art 73

i. Documents executed in several parts

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

ii. 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.

iii. 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

6. Secondary evidence u/ art 74

i- Meaning of secondary evidence

A reproduction of, or substitute for an original document or item of proof that is offered to
establish a particular issue in a legal action

Secondary evidence is based on Rule of Necessity

As it has been reproduced from an original and being used in absence of original document

ii- Documents Which are included in secondary evidence

A- Certified copies of documents

B- Copies made from the original by mechanical process

C- Copies made from or compared with the original

D- Counter parts of the documents as against the parties who did not execute them

E- Oral account of the contents of document given by some person who has himself seen it

The list provided by article 74 is an exhaustive list of secondary evidence.

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

8 Proof of documents by primary evidence u/art 75

I. General Rule u/art 75

Documents must be proved by primary evidence

Article 76 provides rule of Preference according to which a document must be preferred to be

proved by primary evidence.

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.

II Exception to the General rule u/art 76

10 Cases in which secondary evidence is admissible in evidence

A- Original document is in possession of

i- Opposite party

ii- person beyond the reach of court

iii- person not subject to the process of court

iv- a person failing to produce document even after the notice of court

Secondary evidence of the contents of a document preferred to in article 76 paragraph (a) shall
not be given unless the party purposing to give such evidence has previously given notice to the
party in whose possession or power the document is or to his advocate.

B- Admission of document u/art 76(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

In such case secondary evidence in form of written admission is admissible

C- Original is lost or Destroyed

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- Original is voluminous document

when, due to the volume or bulk of the original, copies thereof have been made by means of
microfilming or other modern devices. It may be proved by any secondary evidence.

E- When impossible to produce original

When the original is of such a nature as not to be easily movable,or the production of original is
highly inconvenient.

F- Original is a public document

when the original is a public document within the meaning of Article 85

in such case secondary evidence in the form of certified copy of document is admissible in
evidence.

G- Certified copy of original is permitted by law

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. The original is not a public document but
law has allowed it to be proved by its certified copy.

H- Original consists of numerous accounts

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

In such case secondary evidence may be given as to the general result of the documents by any
person who has examined hen and who is skilled in the respective fields.

I- Original is a part of judicial record

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.

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.

11 Reasons for giving secondary evidence

Secondary evidence is accepted as rule of necessity but it should not be accepted without
sufficient reason which must come within the ambit of art 76.

12 Object of secondary evidence

Whenever secondary evidence is presented before the court it is the right of the opposite party to
object the same in the court of first instance otherwise this right will not be available in the
appellate court.

13 Application of article 76
The grounds mentioned in article 76 are applicable to civil as well as criminal proceedings

14 Conclusion

Q.S.O(Estoppel) by Admin Khadija Shan Elahi

Topic: "Estoppel"......

Q. Define estoppel? What are the elements of estoppel? What are the kinds of estoppel? also
explain those cases in which it is not applicable?

SYNOPSIS

ORIGIN OF THE TERM ESTOPPEL

ESTOPPEL IN ENGLISH LAW

DEFINITION OF ESTOPPEL

RELEVANT PROVISION

BASIS OF DOCTRINE

OBJECT OF ESTOPPEL

ELEMNTS OF ESTOPPEL

ONUS OF PROOF

KINDS OF ESTOPPEL

1. Reliance-based estoppels

2. Estoppel by record

3. Estoppel by deed

4. Estoppel by silence

5. Estoppel By conduct

6. Equitable estoppel

7. Proprietary estoppel

8. Promissory estoppel

9. Estoppel By convention

10. Estoppel by acquiescence

11. Estoppel by deed

12. Conflict Estoppel

13. Issue estoppel

 CASES IN WHICH ESTOPPEL IS NOT APPLICABLE

1. Criminal cases

2. Statement of belief or opinion

3. Representation or question of law

4. No estoppel against statute

5. No estoppel against corporation

Material on the Topic....................

ORIGIN OF THE TERM ESTOPPEL

This term is derived from the Old French estoupail (or a variation), which meant: "stopper plug",
referring to placing a halt on the imbalance of the situation. The term is related to the verb
"estop" which comes from the Old French term estopper, meaning "stop up, impede"

DOCTRINE OF ESTOPPEL IN ENGLISH LAW

Estoppel in English law is a doctrine that may be used in certain situations to prevent a person
from relying upon certain rights, or upon a set of facts (e.g. words said or actions performed)
which is different from an earlier set of facts.In English law, the concept of legitimate expectation
in the realm of administrative law and judicial review is estoppel's counterpart in public law,
although subtle but important differences exist

Example

Estoppel could arise in a situation where a creditor informs a debtor that a debt is forgiven, but
then later insists upon repayment. In a case such as this, the creditor may be estopped from
relying on their legal right to repayment, as the creditor has represented that he no longer treats
the debt as extant.

DEFINITION OF ESTOPPEL

Blacks law Dictionary

A bar or impediment raised by the law, which precludes a man from alleging or from denying a
certain fact or state of facts, in consequence of his previous allegation or denial or conduct or
admission, or in consequence of a final adjudication of the matter in a court of law. Demarest v.
Hopper, 22 N. J. Law, 019;

Armfield v. Moore, 44 N. C. 157.

Estoppel is that which concludes and shuts a mans mouth from speaking the truth. When a fact
has been agreed on. or decided in a court of record, neither of the parties shall be allowed to call it
in question, and have it tried over again at any time thereafter, so long as the judgment or decree
stands unreversed; and when parties, by deed or solemn, act in pais, agree on a state of facts, and
act on it,neither shall ever afterwards be allowed to gain say a fact so agreed on. or be heard to
dispute it; in other words, his mouth is shut, and he shall not say that is not true which he had
before in a solemn manner asserted to be true.

General Definition

in its broadest sense Estoppel is a legal term referring to a series of legal and equitable doctrines
that preclude "a person from denying or asserting anything to the contrary of that which has, in
contemplation of law, been established as the truth, either by the acts of judicial or legislative
officers, or by his own deed, acts, or representations, either express or implied."

GENERAL IDEA

Where a court finds that a party has done something warranting a form of estoppel, that party is
said to be "estopped" from making certain related arguments or claiming certain related rights.
The defendant is said to be "estopped" from presenting the related defense, or the plaintiff is said
to be "estopped" from making the related argument against the defendant.

Lord Coke stated,

"It is called an estoppel or conclusion, because a man's own act or acceptance stopped or closet
up his mouth to allege or plead the truth."

Because estoppel is so factually dependent, it is perhaps best understood by considering specific

examples.

Example 1: A city entered into a contract with another party. The contract stated that it had been
reviewed by the city's counsel and that the contract was proper. Promissory estoppel applied to
estop the city from claiming the contract was invalid.

Example 2: A landlord informs a tenant that rent has been reduced, for example, because there
was construction or a lapse in utility services. If the tenant relies on this notice in choosing to
remain in the premises, the landlord could be estopped from collecting the full rent.

RELEVANT PROVISION

Chapter viii and Art: 114 to 116 of Qanoon e Shahadat Order 1984

Basis Of Doctrine

ALLEGANS CONTRARIA NON EST AUDIENDUS

A person alleging contradicting facts must not be heard.

OBJECT OF ESTOPPEL
To secure justice and promote honesty and good faith.

ELEMNTS OF ESTOPPEL

National Engineering Industries ... vs State Of Rajasthan And Ors. on 2 May, 1998

To invoke the doctrine of estoppel three conditions must be satisfied:

(1) representation by a person to another,

(2) the other shall have acted upon the said representation, and

(3) such action shall have been detrimental to the interests of the person to whom the
representation has been made if acted upon the same and in all event the person on whose belief
or benefit the second party as acted upon the said representation would be put to great loss and
disadvantage if the former party is allowed to deny or repudiate the effect of his statement as it
would be resulting in loss and injury

ONUS OF PROOF

Must be on the party who is pleading estoppel.

Kinds of Estoppel

1. Reliance-based estoppels

2. Estoppel by record

3. Estoppel by deed

4. Estoppel by silence

5. Estoppel By conduct

6. Equitable estoppel

7. Proprietary estoppel

8. Promissory estoppel

9. Estoppel By convention

10. Estoppel by acquiescence

11. Estoppel by deed

12. Conflict Estoppel

13. Issue estoppel

Reliance-based estoppels
These involve one party relying on something the other party has done or said. The party who
did/said the act is the one who is estopped. Under English law, this class includes estoppel by
representation of fact, promissory estoppel.

Estoppel by record

This frequently arises as issue/cause of action estoppel or judicial estoppel where the orders or
judgments made in previous legal proceedings prevent the parties from relitigating the same
issues or causes of action,

Estoppel by deed (often regarded as technical or formal estoppels)

Where rules of evidence prevent a litigant from denying the truth of what was said or done

Estoppel by silence

Estoppel that prevents a person from asserting something when he had the right and opportunity
to do so earlier and such silence put another person at a disadvantage.

All reliance-based estoppels require the victimized party to show both inducement and
detrimental reliance,

Example

there must be evidence to show that the represented actually intended the victim to act on the
representation or promise, or the victim must satisfy the court that it was reasonable for him or
her to act on the relevant representation or promise, and what the victim did must either have
been reasonable, or the victim did what the representor intended, and

the victim would suffer a loss or detriment if the representor was allowed to deny what was said
or done detriment is measured at the time when the representor proposes to deny the
representation or withdraw the promise, not at the time when either was made, and

\ in all the circumstances, the behavior of the representor is such that it would be
"unconscionable" to allow him or her to resile.

Estoppel by representation of fact and promissory estoppel are mutually exclusive:

the former is based on a representation of existing fact (or of mixed fact and law), while the latter
is based on a promise not to enforce some pre-existing right (i.e. it expresses an intention as to the
future). A proprietary estoppel operates only between parties who, at the time of the
representation, were in an existing relationship, while this is not a requirement for estoppel by
representation of fact.

Illustration
An estoppel by representationof fact will arise between A and B if the following elements are
made out. First, A makes a false representation of fact to B or to a group of which B was a
member. Second, in making the representation, A knew that it was likely to be acted upon. Third,
B, believing the representation, acts to its detriment in reliance on the representation. Fourth, A
subsequently seeks to deny the truth of the representation. Fifth, no defense to the estoppel can
be raised by A.

Estoppel By conduct

A representation can be made by words or conduct. Although the representation must be clear
and unambiguous, a representation can be inferred from silence where there is a duty to speak or
from negligence where a duty of care has arisen. Under English law, estoppel by representation of
fact usually acts as a defence, though it may act in support of a cause of action or counterclaim.

Equitable estoppel (English law)

For the American doctrine of equitable estoppel, see Estoppel by representation of fact.

Under English and Australian legal systems, estoppels in equity include promissory and proprietary
estoppels. (Contrast with estoppel by representation, which is a claim (under the English system)
at law.) For more information, see Promissory estoppel and Proprietary estoppel below.

There are two kinds of Estoppel

Proprietary estoppel

Promissory estoppel

Proprietary estoppel

proprietary estoppel arose in relation to rights to use the land of the owner, and possibly in
connection with disputed transfers of ownership. Although proprietary estoppel was only
traditionally available in disputes affecting title to real property, it has now gained limited
acceptance in other areas of law. Proprietary estoppel is closely related to the doctrine of
constructive trust.

the elements for proprietary estoppel as:

the claimant...

...made a mistake as to his legal rights (typically because the actual owner attempted to convey
the property, but the transfer is invalid or ineffective for some reason);

...did some act of reliance;

the defendant...
...knows of the existence of a legal right which he (the defendant) possesses, and which is
inconsistent with the right claimed by the claimant;

...knows of the claimant's mistaken belief; and,

...encouraged the claimant in his act of reliance.

Example:

A father promised a house to his son who took possession and spent a large sum of money
improving the property, but the father never actually transferred the house to the son. Upon the
father's death, the son claimed to be the equitable owner. The court found the testamentary
trustees (as representatives of the deceased father's estate) were estopped from denying the
son's proprietary interest, and ordered them to convey the land to the son.

Equitable estoppel is distinct from promissory estoppel:

Promissory estoppel involves a clear and definite promise, while equitable estoppel involves only
representations and inducements. The representations at issue in promissory estoppel go to
future intent, while equitable estoppel involves statement of past or present fact. It is also said
that equitable estoppel lies in tort, while promissory estoppel lies in contract. The major
distinction between equitable estoppel and promissory estoppel is that the former is available
only as a defense, while promissory estoppel can be used as the basis of a cause of action for
damages.

Estoppel by convention in English law (also known as estoppel by agreement)

occurs where two parties negotiate or operate a contract but make a mistake. If they share an
assumption, belief or understanding of how the contract will be interpreted or what the legal
effect will be, they are bound by that belief, assumption or understanding if:

Chartbrook Ltd and another v Persimmon Homes Ltd and another [2009] UKHL 38.

Estoppel by convention is most commonly invoked if one party wishes to rely on pre-contract
negotiation as an aid to construction of the contract,

Estoppel by acquiescence...

Estoppel by acquiescence may arise when one person gives a legal warning to another based on
some clearly asserted facts or legal principle, and the other does not respond within "a reasonable
period of time". By acquiescing, the other person is generally considered to have lost the legal
right to assert the contrary.

Example
Jill has been storing her car on Jack's land with no contract between them. Jack sends a registered
letter to Jill's legal address, stating: "I am no longer willing to allow your car to stay here for free.
Please come get your car, or make arrangements to pay me rent for storing it. If you do not do so,
within 30 days, I will consider the car abandoned and will claim ownership of it. If you need more
time to make arrangements, please contact me within 30 days, and we can work something out."
If Jill does not respond, she may be said to have relinquished her ownership of the car, and
estoppel by acquiescence may prevent any court from invalidating Jack's actions of registering the
car in his name and using it as his

Estoppel by deed...

Estoppel by deed is a rule of evidence arising from the status of a contract signed under seal
such agreements, called deeds, are more strictly enforced than ordinary contracts and the parties
are expected to take greater care to verify the contents before signing them. Hence, once signed,
all statements of fact (usually found in the opening recital which sets out the reason(s) for making
the deed) are conclusive evidence against the parties who are estopped from asserting otherwise.

Conflict Estoppel...

an inconsistent position, attitude or course of conduct may not be adopted to loss or injury of
another Brand v. Farmers Mut. Protective Assoc of Texas, Tex. App 95 S.W.2d 994, 997. For
example, as between two or more claimants, a party that takes multiple and inconsistent legal
positions is estopped to assert its positions against another consistent and certain claim, i.e.
preferential treatment for certain over uncertain claims.

Issue estoppel...

estoppel when a issue arises.

CASES IN WHICH ESTOPPEL IS NOT APPLICABLE

Criminal cases

Statement of belief or opinion

Representation or question of law

No estoppel against statute

No estoppel against corporation

Any question please ask through comments....

Q.S.O (Dying Declaration) by Admin Khurram Jafri

DYING DECLARATION

Q. What is evidentiary value of Dying Declaration? Can a conviction be based on it? Discuss in
detail.

Or
Q. What are the essentials of a Dying Declaration? How can it be proved? Discuss.

Answer:

1. INTRODUCTION:-

2. LAW RELATING TO DYING DECLARATION:-

Article 46. Cases in which statement of relevant fact by person who is dead or cannot be found,
etc., is relavant:-

Statements written or oral, of relevant facts made by a person who is dead, or who can not be
found, or who has become incapable of giving evidence, or whose attendance can not be procured
without an amount of delay or expense which under the circumstances of the case appears to the
court unreasonable, are themselves relevant facts in the following cases.

1. Statements of declaration by person since deceased, viz. declaration relating to his cause
of death.

2. Declaration made in course of business or duty.

3. Declaration against interest.

4. Declaration as to public rights.

5. Declaration as to pedigree.

6. Declaration by testators in their wills, and

7. Declaration by several persons expressing feelings.

ARTICLE 46(1) STATES WHEN IT RELATES TO CAUSE OF DEATH:-

Illustration:- The question is whether A has murdered by B; or A dies of injuries received in a

transaction in the course of which she was ravished. The question is, whether she was ravished by
B, or

The question is, whether A was killed by B under circumstances that a suit would lie
against B by As widow.

Statements made by A as to the cause of his or her death, referring respectively to the
murder, the rape and the actionable wrong under consideration is relevant facts.

1. DYING DECLARATION IS AN EXCEPTION TO HEARSAY RULE:-

Hearsay means a statement made otherwise than by a person while giving oral evidence in the
proceedings which is tendered as evidence of the matters stated.

Hearsay may, be first hand, when a witness says he heard someone else say, or second hand (or
even more distant) when he relates to what he was told that someone else said.

Hearsay evidence may be oral or documentary, of fact or of opinion. Oral or written statement
made by person who are not parties and who are not called as witness are inadmissible to prove
the truth of the matters stated.

The effect of general rule of hearsay evidence is to prohibit certain oral and written statements or
person other than the witness who is giving evidence being related to the court as evidence of
truth of that which was asserted in the statement and notwithstanding the fact that no better
evidenced of the facts stated is to be obtained.

The provision of article 46, inter alia providing admissibility of dying declaration in evidence, is
exception to the hearsay rule. The exception to the hearsay evidence has been directed by
necessity. The general ground of admissibility of the evidence referred to in Article 46 is that no
better evidence could be produced. Before such evidence is admitted, the court must arrive at a
finding on evidence formally and regularly taken and recorded that one or other of the grounds
specified in the Article 46 exists. The admission of such deposition in evidence without such
finding is illegal.

Article 46 makes relevant the statements given by a deceased person as to the cause of his death
or as to any circumstances of the transaction which resulted in his death, when the cause of death
comes into question.

It is Cardinal Rule in Law of Evidence that the direct evidence is the best evidence having
great probative force, as it is original, positive and based on first hand knowledge.

The word direct evidence is opposed to mediate or alternate or what is technically called
hearsay or second hand evidence.

Principle of necessity has successfully been able to carve its way to get one of the most
important Articles making way to the use of hearsay evidence.

Article 46 is one of the most important Articles making way to the use of hearsay
evidence.

Article 46 provides cases in which statement of relevant fact by person who is dead or
cannot be found is relevant.

1. INGREDIENTS OF DYING DECLARATION:-

a) It relates to the case of death.

b) It includes the circumstances with resulted into death.

c) It is relevant when the cause of declarants death came into question whatever may be the
nature of proceedings irrespective of the fact whether such statement was made under the
expectation of death or otherwise.

1. PRINCIPLES OF DYING DECLARATION:-

1. NO SPECIFIED FORUM:- There is no specified forum before which such declaration is

required to be made.

2. NO BAR THAT IT CAN NOT BE MADE BEFORE A PRIVATE PERSON:- There is no bar that it
cannot be made before a private person.
 3. CAN BE ORAL:- Dying declaration can be oral. Non recording of the same does not give
fatal blow to the prosecution case.

4. DYING DECLARATION NEED NOT BE READ OVER ITS MAKER:- There is no legal requirement
that the declaration must be read over or it must be signed by its maker.

5. NO LEGAL REQUIREMENT TO BE MADE UNDER IMMEDIATE APPREHENSION OF DEATH:- It

is not a legal requirement that dying declaration should have been made under immediate
apprehension of death.

6. MUST BE INFLUENCE FREE:- Dying declaration should be influence free. (Free of prompting
by relatives, friends etc).

7. THE PERSON RECORDING THE DYING DECLARATION MUST BE EXAMINED:- In order to

prove such declaration the person by whom it was recorded should be examined.

8. WHEN DYING DECLARATION BECOMES SUBSTANTIVE EVIDENCE:- Such declaration

becomes substantive evidence when it is proved that it was made by the deceased.

9. CORROBORATION:- Corroboration of a Dying Declaration is not a rule of law, but

requirement of prudence.

10. CAN BE MADE BASIS OF CONVICTION:- Such declaration when proved by cogent evidence
can be made a basis for conviction.

6:- ESSENTIALS OR CONDITIONS FOR RELEVANCY AND ADMISSIBILITY OF DYING DECLARATION:-

1. The declarant must have died:-

2. The dying declaration must be a statement written or verbal:-

3. Injuries are the cause of his death:-

Case Law:- [AIR 1964 SC 900] Where it was not proved that the deceased was not died of
the injuries received at the incident. His evidence did not amount to be dying declaration and was
excluded.

1. Circumstances of the transaction which resulted in his death:-

2. The cause of the death of the declarant must be in question:-

3. The declaration must be complete.

Case Law:- [AIR 1956 SC 168] However, the incomplete dying declaration un-mistakenably points
out the guilt of the accused then there is no harm on relying on such incomplete declaration.

1. Declaration to be taken as a whole:-

2. Declaration should be precise:-

3. The declarant must be competent:-

4. The declarant must be in fit state of mind while making declaration:-

7. REASONS FOR ADMISSIBILITY AND VALIDITY OF DYING DECLARATION:-

Nemo Mortiturus Praesumutur mentire which means A man will not meet the Maker with a lie
in his death.

8. RULES FOR ADMISSIBILITY OF DYING DECLARATION:-

Case Law:- [AIR 1958 SC 22]

9. THE TEST FOR THE ACCEPTANCE OF DYING DECLARATION BY COURTS (ADMISSIBILITY AND
VALIDITY):-

1. It is not the result of coaching, tutoring or prompting of some body.

2. That the deceased was in a fit state of mind to make the statement and made the
statement without any enmity.

10. GENERAL QUESTIONS TO BE CONSIDERED BY COURT:-

1. I. Whether the maker had the physical capacity to make the dying statement.

2. II. Whether the maker had the opportunity to recognize the assailants.

3. III. Whether there were chances of mistake on the part of the dying man in
identifying and naming his assailants.

4. IV. Whether it was free from prompting from any outside quarter and was not
inconsistent with the other evidence.

5. V. Whether the witness who heard the deceased making the statement heard
him correctly and whether their evidence can be relied on.

6. VI. Whether enmity exists between the parties among themselves or prosecution
witness and accused person.

11. WHO ARE ENTITLED TO RECORD THE DYING DECLARATION?

1. Recording by Magistrate:-

2. Recording by Investigation Officer (Police Officer):-

3. Recording by duty doctor:-

 4. Recording by any other person:-

12. PROCEDURE FOR RECORDING DYING DECLARATION:-

1) Certification by the Medical Officer as to the mental and physical fitness of the Declarant:-

2) Should be conscious and voluntary:-

3) Should be precise and complete:-

4) Must be made soon after the alleged incident:-

5) Must have been recorded in the exact words in which it is made:-

6) Signature or thumb impression of the declarant be taken:-

7) Should be in question and answer form:-

8) Must be signed by the scribe of the dying declaration.

13. FORM OF RECORDING DYING DECLARATION:-

14. PROOF OF DYING DECLARATION:-

15. WHEN DYING DECLARATION CANNOT BE TAKEN INTO CONSIDERATION:-

1. Incomplete:-

2. False:-

3. Suspicious Circumstances:-

4. Tutoring:-

5. Delay:-

6. Cross cases:-

7. Infirmities:-

8. Death of another person:-

9. Where death not due to injuries in the same occurrence:-

10. Accused already named:-

11. Plurality of declaration (conflicting declarations)

12. When the injured survives:-

 13. Declarant person of unsound mind:-

14. Declarant person a minor:-

15. Cause of death or circumstances leading to death are not in question:-

----------------------------------------------------------------------------------------------------

16. DEFENSES IN CASES OF WHERE DYING DECLARATION IS AVAILABLE IN EVIDENCE:-

1) All the defenses available against other type of evidence of witnesses. Such as enmity.

2) Dying declaration is incomplete.

3) Accused has not been specifically identified.

4) Exact Role of the accused not provided.

5) Dying declaration is inconsistent with the other available evidence.

6) Dying declaration is belied by other available evidence, such as medical record or confidence
inspiring evidence of eye witnesses.

7) Dying declaration is ambiguous.

8) Decarant did not qualify as a witness under Article 3 of QSO.

9) Prompting by others.

10) Declaration does not relate to cause of own death or circumstances leading to own death.

11) Declarant still alive.

12) Dying declaration before I.O is sometimes not admissible in evidence. However, it may be
used.

Q.S.O (Previliged Communication) By Admin Khurram Jafri

Q. What do you understand about the evidence and original record relating to the affairs of State
as contemplated under Article 6 of Qanun-e-Shahadat Order, 1984? Substantiate your answer
with the help of case law.

Answer:-

1. PREVILEGED COMMUNICATION:-

There are certain matters which a witness cannot either be compelled to disclose or even if the
witness is willing to disclose, he will not be permitted to do so. Such matters are known as
privileged communication. For example, a wife cannot be permitted to disclose what her husband
told her about the matter under inquiry.
 1. TYPES OF PRIVILEGED COMMUNICATION:-

Privileged communications are of two kinds.

Privileged from disclosure.

Prohibited from being disclosed.

1. COMMUNICATIONS NOT PERMITTED TO BE DISCLOSED:-

There are certain communications which it is the policy of law that they should not be disclosed.
The law therefore, does not permit them to be disclosed even if the party possessing that
information wishes to disclose it. This protection from disclosure is to be found in the following
provisions of the QSO, 1984.

1. I. Judges and Magistrates:- (Article 4)

2. II. Communication during marriage:- (Article 5)

3. III. Evidence as to affairs of state:- (Article 6)

4. IV. Official Communications:- (Article 7)

5. V. Information as to commission of offences:- (Article 8)

6. VI. Professional Communications:- (Article 9)

7. VII. Article 9 to apply to interpreters:- (Article 10)

8. VIII. Privilege not waived by volunteering evidence:- (Article 11)

9. IX. Confidential communication with legal advisors:- (Article 12)

10. X. Production of title deed of a witness not a party:- (Article 13)

11. XI. Production of documents which another person having possession could
refuse to produce:- (Article 14)

12. XII. Witnesses not excused from answering on ground that answer will
incriminate:- (Article 15)

13. EVIDENCE RELATING TO THE AFFAIRS OF THE STATE:-

Article 6 of the Qanoon-e-Shahadat Order, 1984 relates that no one shall be permitted to give any
evidence derived from unpublished official records relating to any affair of the state, except with
the permission of the officer at the head of the department concerned, who shall give or withhold
such permission as he thinks fit.

Article 7 of Qanoon-e-Shahdat Order, 1984 is another provision that protects a public officer from
disclosing communication made to him in official confidence, when he considers that the public
interest would suffer by the disclosure.

ARTICLE 6. Evidence as to Affairs of the State:-

 ARTICLE 7. Official Communication:-

1. BALANCING PROVISIONS TO THE QANUN-E-SHAHADAT ORDER, 1984:-

It may at first appear from the reading of Articles 6 and 7 of QSO that the privilege provided in
Article 6 and 7 is absolute and the opposite party is rendered remediless if the State invokes
privilege relating to the affairs of the state but it is not so.

The QSO has provided balancing provisions in the Order itself that balance this privilege by
providing enough power to court to look into the matter to find out if privilege is to be allowed or
not. These balancing provisions are Article 158 and 161 of Qanoon-e-Shahadat Order, 1984.

ARTICLE 158: Productions of documents.

ARTICLE 161: Judges Power to Put Question or order production:-

1. PUBLIC POLICY:-

On ground of public policy, relating to affairs of the state contained in unpublished official records
and protected from disclosure except with the permission of the head of the department.

1. AFFAIRS OF THE STATE:-

What is covered by the expression Affairs of the State is a matter of public interest relatable to
any subject in which the State is concerned or involved and

(i) Class Cases:- Which is basically so secret, that apart from public policy, by practice or rules
it is so required to be maintained as an essential feature of the proper and due functioning of the
department itself or the maintenance of the system,

(ii) Content Cases: Which is of such a nature that a blanket of secrecy is required to be
maintained in the public interest, to prevent embarrassment, injury or harm that may be
generated or be caused to any person, should its disclosure be made.

1. QUESTIONS TO BE DETERMINED BY THE COURT WHILE DETERMINING WHETHER THE

DOCUMENT OR COMMUNICATION IS PRIVILEGED OR NOT.

Basically two questions are involved in this section.

1. Whether the document in respect of which privilege is claimed, is really a document

(unpublished) relating to the affairs of the State?

2. Whether disclosure of the content of the document would be against public policy?
On grounds of public policy, evidence derived from unpublished official records of State cannot be
given except with the permission of the head of the department concerned. The court is bound to
accept without question the decision of the public officer.

Case Law:-

[AIR 1946 Nag 385]:- The only ground sufficient to justify non production of an official document
marked confidential is that production would not be in the public interest, for example where
disclosures would be injurious to national defense or to good diplomatic relations or where the
practice of keeping a class of documents secret is necessary for the proper functioning of the
public service.

1. COURT TO DETERMINE WHETHER PRIVILEGE THAT MATERIAL PRODUCED SHOULD NOT BE

SHOWN TO OPPOSITE PERSON/PERSON CHALLANGING DETENTION OF DOCUMENT:-

Privilege that material produced should not be shown to opponent/person challenging detention.
Claim for such privilege could be made under the provisions of the Qanun-e-Shahahdat Order,
1984 and it was open to the court to inspect material and come to a finding whether such claim
could be allowed or not. [PLD 1988 Kar 18]

1. UNPUBLISHED OFFICIAL RECORDS RELATING TO ANY AFFAIRS OF STATES:-

It is for the court to decide whether a document falls within the category unpublished official
records relating to any affairs of State. In doing so the court can have regard to all the
circumstances, barring the inspection of the document itself. Apart from this, there is no fetter to
the jurisdiction of the court looking at whatever materials are available for the purpose of
ascertaining whether the document is an unpublished official record relating to Affairs of State.
Affairs of State is a very wide expression. Every communication which proceeds from one officer
of State to another officer of the State is not necessarily relating to the affairs of the state. What
are the Affairs of State has got to be determined by a reference to the grounds in which privilege
can be claimed in respect of a particular document. It is only such documents which relate to the
affairs of the State the disclosure of which would be detrimental to the public interest that come
within the category of unpublished official records relating to the affairs of the State entitled to
protection under this Article.

1. WHO SHALL GIVE OR WITHHOLD PERMISSION AS HE THINKS FIT:-

Head of the Department.

1. PRIVILEGE CLAIMED IN PROPER FORM IS CONCLUSIVE ---NO EVIDENCE CAN BE GIVEN

FROM DOCUMENT CONCERNED AFTER GRANT OF PRIVILEGE:-
 1. CASE LAWS:-

[1991 PTD 217]: Documents relating to commerce, trade or contractual activities of State generally
do not relate to affairs of the State. Income Tax Officer thus could not claim privilege for the letter.

[PLD 1992 SC 492]:- Rule with regard to privilege in criminal proceedings is somewhat restricted
and limited, as opposed to civil proceedings where it has a larger play.

Powers of court qua the application for rule of State privilege stated.

Q.S.O(Competency of a Witness by Admin Khadija Shan Elahi

Complete Outline on "HOSTILE WITNESS"......

1- Introduction:

Nowhere in Qanun-e-Shahadat Order, 1984, has the word Hostile witness been used, however,
Article 150 implies that every witness is supposed to make his statement for whom he is
appearing and if he speaks in different voice, it will be for the court to decide in what voice he
speaks the truth. Article 150 of the Qanun-e-Shahadat, 1984, gives discretionary power to permit
the person, who called the witness to put any question to him, which might be put in cross-
examination by adverse party. If a witness is inconsistent with his statement or tries to suppress
the truth, the court has discretion to allow the party calling the said witness, to put questions to
him as could be put in cross-examination, which was only source under the law to find out the
truth. If a prosecution witness unexpectedly makes statement, which is not favourable to the
prosecution, the court cannot refuse to grant permission to the prosecution to cross-examine said
witness. It is not necessary that after cross-examination, the witness would lose his credibility, but
his evidence can be relied upon by either party and court can come to its own conclusion, after
going through the whole evidence. Evidence of a hostile witness cannot be discredited wholly and
merely for the reason of his being declared hostile .

2- Relevant Law:

Article 150 of Qanun-e-Shahadat Order, 1984

3- Interpretation of term Witness:

A witness is a person who gives sworn testimony in court of law for legal purposes.

4- Importance of a witnesss testimony:

And the witness must not be refused when they are summoned (2:282)

5- Classification of Witnesses:
i. Pocket Witness

ii. Star Witness

iii. Prosecution Witness

iv. Hostile Witness

v. Defence Witness

vi. Child Witness

vii. Chance Witness

viii. Lunatic Witness

ix. Last Seen Witness

x. Independent Witness

xi. Interested Witness

6- Connotation of term Hostile Witness:

According to Blacks Law Dictionary:

Hostile witness is a witness who is biased against the party.

According to the superior courts view:

Hostile witness may be defined as one who from the manner in which he gives evidence shows
that he is not desirous of telling the truth to the court . An inference of hostility is a matter for the
court to draw and can only be drawn from the answers given by witness.

7- Text of Article 150:

Question by party to his own witness: The court may, in its discretion, permit the person who
calls a witness to put any questions to him which might be put in cross-examination by the
adverse party.

8- Conditions to Test Hostility:

a. Hostile Animus &

b. The witness is not desirous to tell the truth.

c. Witnesss statement is adversely affecting the party producing him .

d. The evidence contrary to the interest of a party is unexpectedly sprung up

in examination of the witness .

9- Factors leading to declare a witness Hostile:

Witness who contradictory to his previous statement makes any

o Improvement

o Deviation,

o Addition or

o Concealment .

Witness deliberately concealing or suppressing material facts.

10- Factors leading to refuse to declare a witness Hostile:

Answer of a witness to certain question if is in direct conflict with evidence of other witnesses
can never be a reason for allowing the witness to be treated as hostile and permitted to be cross-
examined .

Evidence of hostile witness consistent with prosecution version and straightforward and his
statement incriminating accused .

Merely to say that a witness is unfavourable to the party calling him.

11- Effect of declaring a witness Hostile:

When a witness is declared hostile, he is to be cross-examined by both parties and confronted

with his earlier statement, if any, reduced into writing .

12- Appreciation of Hostile Witnesss Deposition:

Evidence of hostile witnesses could not be brushed aside merely on the ground that they were
declared hostile, inasmuch as the portion of evidence advantageous to the parties, could be taken
into consideration, but the court should be extremely cautious to consider veracity of the evidence
on the basis of its intrinsic worth. Statement of a hostile witness could not be discarded as a
whole, if the statement would find support from the rest of the material, and in such
circumstances, same could be taken into consideration .Version believable to the prosecution
could be taken into consideration for awarding conviction. If a hostile witness speaks in two
different voices and in two different tones his evidence is to be assessed with much greater care
and circumspection. Only those voices and tones of witnesses could be considered worthy of
reliance which was supported by sources essentially unimpeachable because one tainted piece of
evidence could not corroborate another tainted piece of evidence . Court should consider entire
evidence of such witness to see whether any part of his evidence is worthy of belief in the light of
the other evidence, and testimony of such witness cannot be discarded altogether and has to be
considered like the evidence of any other witness, but with caution . The corroboration of such
witness must be sought from independent source and conformity with the remaining evidence . In
other words solitary statement of the hostile witness in the absence of independent corroboration
cannot be made basis of conviction of accused . It was also held in another judgment that
statement of hostile witness cannot be discarded entirely. Statement of such a witness has to be
examined in totality i.e. alongwith other material on record. Evidence of such witness was to be
considered with utmost caution and could not be extended credit unless same was corroborated
by some other evidence . It is was also held that real test was as to whether in some portions of
evidence of hostile witness he spoke truth with regard to some events or not and if hostile witness
highlighted some features of occurrence which rang true, those could be easily relied upon in
support of the story of prosecution . It was also held in another judgment that rule that statement
of a hostile witness has no evidentiary value not a genuine rule but will depend on facts of each
case. If Court finds that witness is a natural witness of fact which is to be relied upon by Court and
it is in consonance with other evidence on record, same portion of his statement could be relied
upon by Court . When the court has exercised its discretion under Article 150, it ought not to be
interfered with by Appellate Court. Even if the Appellate Court holds that permission to cross-
examine the witness should have been given by trial court, the proper thing for the appellate
court to do would be to send back to the case to the trial court to take the evidence of the said
witness further after granting the prosecution permission to cross-examine the witness. Without
doing so, the appellate court cannot straightway proceed to reject the entire evidence of the said
witness as if he was a hostile witness and had been own ever by the defence .

13- Discretion of the Court:

Discretion is given to the court by Article 150 to allow or not to allow a person to cross examine
his own witness as hostile witness. However, the discretion has to be exercised judicially and with
caution by the court before which the matter comes up for consideration . Article 150 is no way
fetters the discretion of the court to permit leading question to be put by a party to his own
witness. The court has unfettered discretion to allow the prosecutor to cross-examine the
prosecution witnesses .

14- Stages to Declare a Witness Hostile:

A court can declare a witness hostile at any stage of the proceeding at which he is examined in
court. A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to
the police or in the lower court, but in cross-examination introduces statements in a subtle way
contradicting in effect what he stated in examination-in-chief. If his design is obvious, the court
can, during the course of his re-examination, permit the person calling him as a witness to put
questions to him which might be put in cross-examination by the adverse party. It cannot be said
that if a party calling a witness is permitted to put such questions to the witness after he has been
cross-examined by the adverse party, the adverse party will not have any opportunity to further
cross-examine the witness on the answer elicited putting such question . Even the principle under
article 150 is also applicable during re-examination as well. It is possible that during the course of
re-examination a witness while clarifying or elucidating a fact may suppress the truth or state
something which appears to be palpably false or self-contradictory or far some allied reasons then
permission can be sought to cross-examine that witness.

15- Modes of impeachment of the credit of hostile witness:

a. By Cross-Examination:

The first mode to impeach the credit of a hostile witness is the cross-examination by the party
calling the witness by asking the questions as the adverse party may ask during cross-examination.

b. By Evidence of Other Person:

The credit of a hostile witness may also be impeached by the evidence of other person subject to
following conditions:

Other person has knowledge to believe that the hostile witness is unworthy of credit.

The evidence of general nature and not specific nature may be given against hostile witness.

The evidence of being unworthy of credit cannot be given in examination-in-chief, however, the
reasons of being unworthy may be asked in cross-examination.

c. By Evidence of Misconduct:

The credit of a hostile witness may also be impeached by showing that:

He had been bribed or

Has accepted the offer of bribe,

He has received any other corrupt inducement to given his evidence

d. By proof of previous inconsistent Statement:

The credit of a hostile witness may also be impeached by proof of his previous inconsistent
statement.

16- Limitations to Article 150 and 151:

Permission to cross-examine witness should not be given to party calling the witness, when
object of such cross-examination is to cover up lacunae in evidence .

Prosecution could not be permitted to confront a witness with his previous statement recorded
under S.161, Cr.P.C. for the purpose of contradicting him even after being declared hostile .

17- Scope of Article 150:

Article 150 provides for impeaching the credit of a witness by cross-examination. In order to
attract the provisions of article 150 it would be necessary to establish that witness was guilty of
prevarication or that he was having animosity towards the party who called him.

18- Difference between Unfavourable Witness and Hostile Witness:

There is difference between an unfavourable witness and hostile witness. Every hostile witness is
an unfavourable witness but every unfavourable witness need not to be a hostile witness because
hostile wtiness is that witness who from the manner in which he is giving evidence, shows that he
is not desirous of speaking the truth to the court.

19- Difference between Withheld Witness and Hostile Witness:

A witness cited but not produced in court cannot be said to be hostile but would be withheld
witness. In case of withholding witness, adverse presumption is to be drawn that had the witness
been produced he would have deposed against the party withholding the witness .

20- Competent Authority to Move Application under Article 150:

Public Prosecutor being Incharge of Prosecution is the competent authority to move an application
to declare a witness as hostile witness.

21- Time Limit to make an application to declare a witness hostile:

Though no specific limitation has been given to move an application to declare a witness hostile
yet it should be made promptly, at the spout, without any delay.

22- Effect of failure to apply court to declare a witness Hostile:

A party who produces a witness would be bound by deposition of witness. He cannot turn around
to claim that deposition of such witness adverse to the party may be excluded from consideration
particularly when wtiness is not declared hostile . Party failing to get his own witness declared
hostile, held, bound by his evidence . Where a state counsel does not get declared his witness
hostile, court is bound to give credit of such statement to the person in whose favour it has been
deposed and whatever benefit arises out of it that goes in favour of accused .

23- Sum-up

Q.S.O(Hostile Witness), Outline + Material by Admin Babar Nadeem

Complete Outline on "HOSTILE WITNESS"......

1- Introduction:

Nowhere in Qanun-e-Shahadat Order, 1984, has the word Hostile witness been used, however,
Article 150 implies that every witness is supposed to make his statement for whom he is
appearing and if he speaks in different voice, it will be for the court to decide in what voice he
speaks the truth. Article 150 of the Qanun-e-Shahadat, 1984, gives discretionary power to permit
the person, who called the witness to put any question to him, which might be put in cross-
examination by adverse party. If a witness is inconsistent with his statement or tries to suppress
the truth, the court has discretion to allow the party calling the said witness, to put questions to
him as could be put in cross-examination, which was only source under the law to find out the
truth. If a prosecution witness unexpectedly makes statement, which is not favourable to the
prosecution, the court cannot refuse to grant permission to the prosecution to cross-examine said
witness. It is not necessary that after cross-examination, the witness would lose his credibility, but
his evidence can be relied upon by either party and court can come to its own conclusion, after
going through the whole evidence. Evidence of a hostile witness cannot be discredited wholly and
merely for the reason of his being declared hostile .

2- Relevant Law:

Article 150 of Qanun-e-Shahadat Order, 1984

3- Interpretation of term Witness:

A witness is a person who gives sworn testimony in court of law for legal purposes.

4- Importance of a witnesss testimony:

And the witness must not be refused when they are summoned (2:282)

5- Classification of Witnesses:

i. Pocket Witness

ii. Star Witness

iii. Prosecution Witness

iv. Hostile Witness

v. Defence Witness

vi. Child Witness

vii. Chance Witness

viii. Lunatic Witness

ix. Last Seen Witness

x. Independent Witness

xi. Interested Witness

6- Connotation of term Hostile Witness:

According to Blacks Law Dictionary:

Hostile witness is a witness who is biased against the party.

According to the superior courts view:

Hostile witness may be defined as one who from the manner in which he gives evidence shows
that he is not desirous of telling the truth to the court . An inference of hostility is a matter for the
court to draw and can only be drawn from the answers given by witness.

7- Text of Article 150:

Question by party to his own witness: The court may, in its discretion, permit the person who
calls a witness to put any questions to him which might be put in cross-examination by the
adverse party.

8- Conditions to Test Hostility:

a. Hostile Animus &

b. The witness is not desirous to tell the truth.

c. Witnesss statement is adversely affecting the party producing him .

d. The evidence contrary to the interest of a party is unexpectedly sprung up

in examination of the witness .

9- Factors leading to declare a witness Hostile:

Witness who contradictory to his previous statement makes any

o Improvement

o Deviation,

o Addition or

o Concealment .

Witness deliberately concealing or suppressing material facts.

10- Factors leading to refuse to declare a witness Hostile:

Answer of a witness to certain question if is in direct conflict with evidence of other witnesses
can never be a reason for allowing the witness to be treated as hostile and permitted to be cross-
examined .

Evidence of hostile witness consistent with prosecution version and straightforward and his
statement incriminating accused .

Merely to say that a witness is unfavourable to the party calling him.

11- Effect of declaring a witness Hostile:

When a witness is declared hostile, he is to be cross-examined by both parties and confronted

with his earlier statement, if any, reduced into writing .

12- Appreciation of Hostile Witnesss Deposition:

Evidence of hostile witnesses could not be brushed aside merely on the ground that they were
declared hostile, inasmuch as the portion of evidence advantageous to the parties, could be taken
into consideration, but the court should be extremely cautious to consider veracity of the evidence
on the basis of its intrinsic worth. Statement of a hostile witness could not be discarded as a
whole, if the statement would find support from the rest of the material, and in such
circumstances, same could be taken into consideration .Version believable to the prosecution
could be taken into consideration for awarding conviction. If a hostile witness speaks in two
different voices and in two different tones his evidence is to be assessed with much greater care
and circumspection. Only those voices and tones of witnesses could be considered worthy of
reliance which was supported by sources essentially unimpeachable because one tainted piece of
evidence could not corroborate another tainted piece of evidence . Court should consider entire
evidence of such witness to see whether any part of his evidence is worthy of belief in the light of
the other evidence, and testimony of such witness cannot be discarded altogether and has to be
considered like the evidence of any other witness, but with caution . The corroboration of such
witness must be sought from independent source and conformity with the remaining evidence . In
other words solitary statement of the hostile witness in the absence of independent corroboration
cannot be made basis of conviction of accused . It was also held in another judgment that
statement of hostile witness cannot be discarded entirely. Statement of such a witness has to be
examined in totality i.e. alongwith other material on record. Evidence of such witness was to be
considered with utmost caution and could not be extended credit unless same was corroborated
by some other evidence . It is was also held that real test was as to whether in some portions of
evidence of hostile witness he spoke truth with regard to some events or not and if hostile witness
highlighted some features of occurrence which rang true, those could be easily relied upon in
support of the story of prosecution . It was also held in another judgment that rule that statement
of a hostile witness has no evidentiary value not a genuine rule but will depend on facts of each
case. If Court finds that witness is a natural witness of fact which is to be relied upon by Court and
it is in consonance with other evidence on record, same portion of his statement could be relied
upon by Court . When the court has exercised its discretion under Article 150, it ought not to be
interfered with by Appellate Court. Even if the Appellate Court holds that permission to cross-
examine the witness should have been given by trial court, the proper thing for the appellate
court to do would be to send back to the case to the trial court to take the evidence of the said
witness further after granting the prosecution permission to cross-examine the witness. Without
doing so, the appellate court cannot straightway proceed to reject the entire evidence of the said
witness as if he was a hostile witness and had been own ever by the defence .

13- Discretion of the Court:

Discretion is given to the court by Article 150 to allow or not to allow a person to cross examine
his own witness as hostile witness. However, the discretion has to be exercised judicially and with
caution by the court before which the matter comes up for consideration . Article 150 is no way
fetters the discretion of the court to permit leading question to be put by a party to his own
witness. The court has unfettered discretion to allow the prosecutor to cross-examine the
prosecution witnesses .

14- Stages to Declare a Witness Hostile:

A court can declare a witness hostile at any stage of the proceeding at which he is examined in
court. A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to
the police or in the lower court, but in cross-examination introduces statements in a subtle way
contradicting in effect what he stated in examination-in-chief. If his design is obvious, the court
can, during the course of his re-examination, permit the person calling him as a witness to put
questions to him which might be put in cross-examination by the adverse party. It cannot be said
that if a party calling a witness is permitted to put such questions to the witness after he has been
cross-examined by the adverse party, the adverse party will not have any opportunity to further
cross-examine the witness on the answer elicited putting such question . Even the principle under
article 150 is also applicable during re-examination as well. It is possible that during the course of
re-examination a witness while clarifying or elucidating a fact may suppress the truth or state
something which appears to be palpably false or self-contradictory or far some allied reasons then
permission can be sought to cross-examine that witness.

15- Modes of impeachment of the credit of hostile witness:

a. By Cross-Examination:

The first mode to impeach the credit of a hostile witness is the cross-examination by the party
calling the witness by asking the questions as the adverse party may ask during cross-examination.

b. By Evidence of Other Person:

The credit of a hostile witness may also be impeached by the evidence of other person subject to
following conditions:

Other person has knowledge to believe that the hostile witness is unworthy of credit.

The evidence of general nature and not specific nature may be given against hostile witness.

The evidence of being unworthy of credit cannot be given in examination-in-chief, however, the
reasons of being unworthy may be asked in cross-examination.

c. By Evidence of Misconduct:

The credit of a hostile witness may also be impeached by showing that:

He had been bribed or

Has accepted the offer of bribe,

He has received any other corrupt inducement to given his evidence

d. By proof of previous inconsistent Statement:

The credit of a hostile witness may also be impeached by proof of his previous inconsistent
statement.

16- Limitations to Article 150 and 151:

Permission to cross-examine witness should not be given to party calling the witness, when
object of such cross-examination is to cover up lacunae in evidence .

Prosecution could not be permitted to confront a witness with his previous statement recorded
under S.161, Cr.P.C. for the purpose of contradicting him even after being declared hostile .

17- Scope of Article 150:

Article 150 provides for impeaching the credit of a witness by cross-examination. In order to
attract the provisions of article 150 it would be necessary to establish that witness was guilty of
prevarication or that he was having animosity towards the party who called him.

18- Difference between Unfavourable Witness and Hostile Witness:

There is difference between an unfavourable witness and hostile witness. Every hostile witness is
an unfavourable witness but every unfavourable witness need not to be a hostile witness because
hostile wtiness is that witness who from the manner in which he is giving evidence, shows that he
is not desirous of speaking the truth to the court.

19- Difference between Withheld Witness and Hostile Witness:

A witness cited but not produced in court cannot be said to be hostile but would be withheld
witness. In case of withholding witness, adverse presumption is to be drawn that had the witness
been produced he would have deposed against the party withholding the witness .

20- Competent Authority to Move Application under Article 150:

Public Prosecutor being Incharge of Prosecution is the competent authority to move an application
to declare a witness as hostile witness.

21- Time Limit to make an application to declare a witness hostile:

Though no specific limitation has been given to move an application to declare a witness hostile
yet it should be made promptly, at the spout, without any delay.
22- Effect of failure to apply court to declare a witness Hostile:

A party who produces a witness would be bound by deposition of witness. He cannot turn around
to claim that deposition of such witness adverse to the party may be excluded from consideration
particularly when wtiness is not declared hostile . Party failing to get his own witness declared
hostile, held, bound by his evidence . Where a state counsel does not get declared his witness
hostile, court is bound to give credit of such statement to the person in whose favour it has been
deposed and whatever benefit arises out of it that goes in favour of accused .

23- Sum-up

Q.S.O(Principle of Res Jes-Gestae) By Fouzia Rana Adv

PRINCIPLE OF RES-GESTAE

Res-gestae is a latin word, it means the events at issue, or other events contemporaneous with
them.

Res-gestae has been broadly defined as matter incidental to the main fact and explanatory of it,
including acts and words which are so closely connected therewith as to constitute a part of the
transaction and without a knowledge of which the main fact might not be properly understood.

There are many incidents which though not strictly in issue, yet be regarded as forming part of it,
in the sense that they closely accompany and explain that fact. these constituent or accompanying
incidents are in law said to be admissible as forming part of the Res-gestae or main fact.

The evidence about the fact, which is also connected with the same transaction, cannot be said to
be inadmissible or irrelevant. There is no provision of law which lays-down that evidence can be
led only in respect of that matter which is the subject-matter of the charge. Facts forming part of
the same transaction though not in issue but so cnnected with a fact-in-issue as to form part of the
same transaction are relevant.

The rule as to admissibility of evidence as res-gestae, is embodied and illustrated in articles (19),
(20), (21), (22) and (27). In other words occasion, cause, effect, motive, preparation, conduct,
explanatory or introductory facts, etc, are the various modes in which facts form parts of Res-
gestae.

Q.S.O(Difference between Admssion & Confession) by Fareeha Javed

''Difference between admission and confession''

Following are the differences:

1. Definitions:

a) Admission:

b) Confession:

2. Distinctions:
a) Cases

i) Admission: It is used generally in civil cases.

ii) Confession: This term is specifically used in criminal cases.

b) In all cases:

i) Admission: It is not confession.

ii) Confession: But it is admission in some cases particularly where confession is retracted.

c) Result:

i) Admission: It admits rights of others.

ii) Confession: It is admission of guilt of self.

d) Conclusive proof:

i) Admission: It is not conclusive proof.

ii) Confession: It is conclusive proof as far as law is concerned on confession.

e) Recording:

i) Admission: It may not be voluntary.

ii) Confession: It is always voluntary. Where is coercion, it is not accepted.

f) Base of conviction:

i) Admission: It is not base of conviction.

ii) Confession: Law on confession is very clear and punishment can be imposed but it must be
corroborated from some independent sources according to unanimous decisions of higher courts.

g) Used under exception:

i) Admission: It can be used under Article 34.

ii) Confession: It is used only its maker/confessor.

h) Against others:
i) Admission: It cannot be used against other.

ii) Confession: Yes it can be used against other as corroboratory evidence.

i) Estoppel:

i) Admission: Law of estoppel is applicable in admission.

ii) Confession: Since the question of life and death is involved therefore it can be retracted.

j) Before police:

i) Admission: Can be made before Police Officer.

ii) Confession: Confession made before Police Officer is not acceptable at all unless some weapon
of offence is discovered.

k) By whom:

i) Admission: It can be made some agent also.

ii) Confession: Only accused can make confession.

l) Value in evidence:

i) Admission: It is not strong evidence.

ii) Confession: Yes, it is strong evidence against its maker.

m) Term:

i) Admission: It is broader term.

ii) Confession: It is narrower term.

Q.S.O(Plea of Albi), Outline + Material by Admin Khadija Shan Elahi

SYNOPSIS

INTRODUCTION

RELEVANT PROVISION

MEANING OF THE SAID PLEA

PRINCIPAL BEHIND PLEA OF ALIBI

BASIS OF PLEA OF ALIBI

INGREDIENTS OF PLEA OF ALIBI

ILLUSTRATION

NATURE OF PLEA

APPROPRIATE TIME FOR TAKING THE PLEA

BURDEN OF PROOF

EFFECTS OF PLEA OF ALIBI

CONCLUSION

INTRODUCTION

MEANING OF THE SAID PLEA

MERRIUM WEBSTER DICTIONARY

: a claim that you cannot be guilty of a crime because you were somewhere else when the crime was
committed; also : evidence which shows that such a claim is true

: an excuse for not being somewhere or doing something

RELEVANT LAW

PLEA OF ALIBI ART: 24 OF QSO

PRINCIPAL BEHIND PLEA OF ALIBI

Facts not otherwise relevant become relevant.

BASIS OF PLEA OF ALIBI

It is based upon those facts which are extraneous with facts in issue or relevant fact.

INGREDIENTS OF PLEA OF ALIBI

Person taking the plea must be accused of that offence.

Alibi is a plea of defence, (in respect of innocence of accused) by which the accused suggests to the
court that he was somewhere else at the time of commission of alleged offence.

Where an alleged offence has been committed, and the prosecution accuses a person of having
committed the same, in fit circumstances, it would be a complete answer to the accusation for that
person to plead that he was at the time of occurrence else-where.

He took the plea for the whole time of commission of offence.

ILLUSTRATION
If murder was committed in Lahore and accused was in Peshawar so he will have to show the
evidence in respect of the plea and his innocence to prove that he was not in the city of occurrence
of offence and it was impossible to reach there at that time..

NATURE OF PLEA

Alibi as an evidence is admissible under article 24 of qanoon-e-shahadat as it postulates physical

impossibility of the presence of accused at scene of the offence by reason of his presence at another
place. Plea of Alibi can succeed only if it was shown that accused was so far away at the relevant
time that he could not be present at the place where the crime was committed.

plea of alibi is weakest type of plea and cannot be given any weight unless same is proved from very
cogent , convincing and plausible reason ( 2002 YLR 804)

APPROPRIATE TIME FOR TAKING THE PLEA

Plea of Alibi should be taken at the earliest and must be supported by strong evidence.

BURDEN OF PROOF

The burden of proving this plea is on accused, and if that person succeeds in establishing that plea,
he will be entitled to acquittal.

the burden is on accused .. however it is not essential for accused to prove the plea of alibi to the
hilt and more so it is for the prosecution to establish the guilt of accused beyond shadow of doubt (
PLD 2002 S.C. 77)

EFFECTS OF PLEA OF ALIBI

Benefit can be extended to accused who takes plea of alibi. Such as:

If the charge on the accused is of Qatal 302 and he proves the plea of alibi,,court can award bail
under sec 497 of crpc.

CONCLUSION