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JUDICIAL GROUP: PAPER - II

CONTENTS
THE QANUN-E-SHAHADAT ORDER, 1984 ................................................................................ - 2 -
ISLAMIC LAW OF INHERITANCE ............................................................................................ - 30 -

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THE QANUN-E-SHAHADAT ORDER, 1984


CONTENTS
SECTION DESCRIPTION
2 (1) (a) Court
2 (1) (b) Document
2 (1) (c) Evidence
2 (1) (d) Fact
2 (3) Fact – in – Issue
2 (4) Proved Fact
2 (5) Disproved Fact
2 (6) Not Proved Fact
2 (7) May Presume
2 (8) Shall Presume
2 (9) Conclusive Proof
3 Who may testify?
4 to 14 Witnesses who cannot be compelled to answer.
4 When a Judge or Magistrate is called as a witness
5 Privileged Communication –Communication during Marriage
6 State Affairs
7 Official Communication
8 Information regarding offence / Informant
9 Professional Communication
15 When witness may be compelled to answer even if it criminates him?
16 Accomplice
17 Number of witness – Competence of witness
21 Conduct – Motive – Preparation
24 Theory of Alibi – When Irrelevant Facts become Relevant?
30 to 36 Admission
35 Oral admission when excluded
37 to 40 Confession when irrelevant
41 Confession when relevant
43 Confession a Conclusive Proof
45 Admission not Conclusive Proof
46 Statement of a person who cannot be called as witness
47 Previous statement in New Case
59 3rd Person – Expert – Opinion
66 to 68 Relevancy of Character
69 Character as affecting damages
71 Oral Evidence should be direct
73 Primary Evidence
74 to 76 Secondary Evidence
77 Rules as to Notice to Prove
78 Proof of handwriting / Signature
79 Execution of Document – How proved.
83 Execution of Document – How proved.
85 Public Document
86 Private Document
90 to 101 Presumptions as to Documents

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102 to 104 Exclusion of Oral Evidence by Documentary Evidence


105 to 109 Oral along with Documentary Evidence
111 to 113 Judicial Notice
114 Estoppel
115 Estoppel between Landlord and tenant
116 Estoppel between Bailer and Bailee
117 to 129 Burden of Proof – How shifted from one party to another
132 Kinds of Examination
133 Order of Examination
134 Person who cannot be cross – examined
136 to 138 Leading Questions
141 Lawful Questions
144 to 146 Unlawful Questions
150 Exam of witness by his own party
151 Credit of Witness impeached
155 + 157 Refreshing Memory
162 Improper admission or Rejection – Ground for New Trial
163 Claim on Oath
164 Modern Device – Evidence

Question no. 01
Define the following: (1). Court (2). Document (3). Evidence (4). Oral Evidence (5). Documentary Evidence
(6). Primary Evidence (7). Secondary Evidence (8). Fact, (9). Fact in issue (10). Proved Fact (11). Disproved
Fact, (12). Not Proved Fact (13). May presume (14). Shall presume (15). Conclusive Proof

Answer:
COURT
According to clause (a) of Article 2 (1) of Qanun-e-Shahadat Order, 1984, all Judges, Magistrates and other
persons such as Honorary Magistrates legally authorized by the Government to take evidence are to be
treated as Court but Arbitrators are not Court. The arbitrators are not the court because they cannot
announce their decision but give their opinion to the Court.

DOCUMENT
According to clause (b) of Article 2 (1) of Qanun-e-Shahadat Order, 1984, document means any matter
described or expressed on any substance by means of letters, figures, marks, which is used as piece of
evidence in the court.

EVIDENCE
According to clause (c) of Article 2(1) of Qanun-e-Shahadat Order, 1984, statements given by the witness in
relation to matters of fact under inquiry and documents produced for the inspection of the Court related
with the fact-in-issue constitute evidence. It means there are two types of evidence: one is called Oral
Evidence and other is Documentary Evidence. Evidence is further divided into two kinds: One is called
PRIMARY evidence where the original document is produced for inspection of the Court and the other is a
Secondary Evidence where the certified or attested copy of the original document is produced for the
inspection of the Court.

ORAL EVIDENCE
According to clause (c) of Article 2 (1) of Qanun-e-Shahadat Order, 1984, the oral evidence means statement
of witness before the trial court giving evidence relating to a fact-in-issue based on the following grounds:
1) That I saw it.
2) That I heard it personally.

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3) That I perceived it
4) That I formed opinion.

FACT
According to clause (d) of Article 2 (1) of Qanun-e-Shahadat Order, 1984, fact means anything, state of
things, relation of things that could be perceived by the senses or any mental condition of which a person is
conscious.

FACT IN ISSUE
According to Article 2 (3) of Qanun-e-Shahadat Order, 1984, fact-in-issue means such facts, which are moved
by any person before the Court to give decision to establish the claim, right or liability of other party. OR Any
matter moved by any person in a civil or criminal case requiring the court to take decision regarding
establishment of claim and right in civil cases and to fix criminal liability on the accused person for offence
shown in the fact is issue. In other words, it may be said that any matter pending decision before the court in
an inquiry or trial is called fact in issue.

PROVED FACT
According to Article 2(4) of Qanun-e-Shahadat Order, 1984, the proved fact means if the trial court after
recording evidence in the case pending before it, finds that such facts exist free from any doubt it is called
proved fact.

DISPROVED FACT
According to Article 2(5) of Qanun-e-Shahadat Order, 1984, the disproved fact means if the court after
recording evidence in the case pending before it forms opinion that such fact does not exist, it is called
disproved fact.

NOT PROVED FACT


According to Article 2(6) of Qanun-e-Shahadat Order, 1984, Not proved fact means if the court after
recording evidence comes to the conclusion that such fact is neither proved nor disproved, it is called not
proved fact.

MAY PRESUME
According to Article 2(7) of Qanun-e-Shahadat Order, 1984, when the Court may presume anything, it means
that if any fact is not clearly disproved, the Court may not form its definite opinion about the existence or
non-existence of the fact and may suppose it to be a proved fact and proceed on it as such or it may
expressly require further evidence to prove the existence or non existence of the fact.

SHALL PRESUME
According to Article 2(8) of Qanun-e-Shahadat Order, 1984, when the word “shall presume” is written in any
provision of any law, it means the court shall regard it as a proved fact and shall not require any further
evidence to prove it unless it is clearly disproved.

CONCLUSIVE PROOF
According to Article 2(9) of Qanun-e-Shahadat Order, 1984, Conclusive proof means if any fact is proved by
the court connected with other facts the court shall regard the other facts as a fact and shall not require any
further evidence to prove it. EXAMPLE: There are several accused persons being jointly tried in a murder
case. One of the accused persons makes confession of guilt and gives statement under section 164 of Cr. P. C
before the Magistrate showing the involvement of other accused persons, the confession made by one
accused person is the conclusive proof of the facts, that other accused persons have also made confession of
the guilt.

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Question Nvo. 02
Who is competent witness to testify in civil and criminal proceedings and how competency of a person to
testify and a witness is determined by Court? Discuss the competency of following witnesses: (a). Lunatic
(b). Deaf & Dump (c). Child OR Explain fully, whether, a child, a lunatic or convicted person are competent
witnesses to testify in a judicial proceeding? [Nov,1999/May,2000/Oct,2001/May,2003/Nov, 2004/Jun,
2009]

Answer:
Who is competent witness to testify in civil and criminal proceedings?
According to Article 3 of Qanun-e-Shahadat Order, 1984, the court shall allow those persons as witnesses,
who are of sound mind of any age, who possess mature understanding and are capable to give
understandable answer to a question and may distinguish between right and wrong.

How competency of a person to testify and a witness is determined by Court?


According to Article 3 of Qanun-e-Shahadat Order, 1984, persons of sound mind of any age, who possess
mature understanding and are capable to give understandable answer to a question and may distinguish
between right and wrong, are competent witnesses to testify. However, if there is an issue in the matter and
the competency of a particular witness is doubted, then the competency of that person shall be determined
by the Court according to Holy Quran and Sunnah of Holy Prophet (P.B.U.H).

Whether a child, a lunatic, a deaf & dump or convicted person are competent witnesses to testify?
A child: According to Article 3 of Qanun-e-Shahadat Order, 1984, the test of a witness’ competency is that
whether he possesses mature understanding and is capable to give understandable answer to a question.
There is no restriction as far as age of the witness is concerned. Therefore if a child is capable of
understanding the nature of the case and knows about the value of truth and punishment of a liar then he is
a competent witness. However, the Court shall first ensure about all that before calling such a child as a
witness.

Convicted person: According to Article 3 of Qanun-e-Shahadat Order, 1984, the convicted person for false
evidence and perjurer can also be examined as a witness at the discretion of the court on the grounds that
they have improved their character.

The Lunatic person: According to Explanation given in Article 3 of Qanun-e-Shahadat Order, 1984, the lunatic
person is competent to witness as long as he is able to understand the questions and give coherent answers.
Otherwise he is not competent witness to be testified / examined.

The dumb & deaf: The dumb and deaf are competent witness and their statements are recorded by way of
signs, signals and marks.

Question No. 3
Write short note on the following: (1). Communication during Marriage, (2) State Affairs, (3). Official
Communications, (4). Professional Communication, (5).Information regarding commission of offence

Answer:
COMMUNICATION DURING MARRIAGE/PRIVILEGED COMMUNICATIONS
According to Article 5 of Qanun-e-Shahadat Order, 1984, no witness can be compelled to answer the
questions, which may disclose the marriage relationship or privileged communication which took place
between wedding partners, except with the permission of spouse. But spouse may be compelled to answer
question if the litigation is between them.

STATE AFFAIRS

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According to Article 6 of Qanun-e-Shahadat Order, 1984, nobody shall be compelled to give evidence which
is drawn from the classified documents of State affairs of Government without permission of competent
authority i.e. Federal / Provincial Government as the case may be. Moreover, it depends upon Government
to give such permission or refuse it.

OFFICIAL COMMUNICATIONS
According to Article 7 of Qanun-e-Shahadat Order, 1984, no government servant whether s/he is Federal
employee or Provincial employee, shall be compelled to give evidence relating to such confidential official
correspondence or verbal official communications which if disclosed might be against the general interest of
the people.

INFORMATION REGARDING COMMISSION OF OFFENCE


According to Article 8 of Qanun-e-Shahadat Order, 1984, Police Officers, Revenue Officers and Magistrates
shall not be compelled to disclose the name of informant / informer on whose indication the offence is
detected.

PROFESSIONAL COMMUNICATIONS
According to Article 9 of Qanun-e-Shahadat Order, 1984, no advocate shall be compelled to give answer to
such a question the answer of which might disclose the communications, or documents exchanged between
the advocate and his client, or any advice given by him to his client without prior permission of his client.
However, if the communication is related to commission of any illegal purpose, then the advocate may
disclose such communication. Moreover, the advocate is also free to disclose any thing which he has noticed
and which indicates that any crime or fraud has been committed after the commencement of the case. This
Article applies to the advocates during the course of the case and even after the cease of such engagement.

Question No. 4
Which are the witnesses who cannot be compelled to answer the questions?

Answer:
According to Article 4 of Qanun-e-Shahadat Order, 1984, if any Judge or Magistrate is called as a witness in a
Court in his official capacity, he shall not be compelled to answer any questions related to his behavior as a
Judge or Magistrate or related with the proceedings of a case while he was acting judicially. However, he
may be compelled to answer questions about any incident, which took place at the time of proceedings of a
case.

According to Article 5 of Qanun-e-Shahadat Order, 1984, no witness can be compelled to answer the
questions, which may disclose the marriage relationship or privilege communication which took place
between wedding partners, except with the permission of spouse. But spouse may be compelled to answer
question if the litigation is between them.

According to Article 6 of Qanun-e-Shahadat Order, 1984, nobody shall be compelled to give evidence which
is drawn from the classified documents of State affairs of Government without permission of competent
authority i.e. Federal / Provincial Government as the case may be. Moreover, it depends upon Government
to give such permission or refuse it.

According to Article 7 of Qanun-e-Shahadat Order, 1984, no government servant whether s/he is Federal
employee or Provincial employee, shall be compelled to give evidence relating to such confidential official
correspondence or verbal official communications which if disclosed might be against the general interest of
the people.

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According to Article 8 of Qanun-e-Shahadat Order, 1984, Police Officers, Revenue Officers and Magistrates
shall not be compelled to disclose the name of informant / informer on whose indication the offence is
detected.

According to Article 9 of Qanun-e-Shahadat Order, 1984, no advocate shall be compelled to give answer to
such a question the answer of which might disclose the communications, or documents exchanged between
the advocate and his client, or any advice given by him to his client without prior permission of his client.
However, if the communications related to commission of any illegal purpose, then the advocate may
disclose such communications. Moreover, the advocate is also free to disclose any thing which he has
noticed and which indicates that any crime or fraud has been committed after the commencement of the
case. This Article applies to the advocates during the course of the case and even after the cease of such
engagement.

According to Article 10 of Qanun-e-Shahadat Order, 1984, no Interpreter or Advocate’s clerk / servant may
be compelled to disclose the information mentioned in Article 9 above.

According to Article 12 of Qanun-e-Shahadat Order, 1984, if any client is witnessed, he shall not be
compelled to answer any question related to confidential communication made between him and his
advocate. However, if he has become witness on his own free will, then he may be compelled to answer any
question related to confidential communication made between himself and his advocate.

According to Article 13 of Qanun-e-Shahadat Order, 1984, no person shall be compelled to produce title
deed or any document on the basis of which he holds any property in such case of civil nature in which he is
not a party.

According to Article 14 of Qanun-e-Shahadat Order, 1984, no person shall be compelled to produce any
document in the Court, which belongs to any other person but at the moment it is in his possession.
However, if the person who is the real owner of the document consents to such production, it may be
produced in the Court.

Question No. 05
Can a witness be compelled to answer a question, which may criminate him?

Answer:
According to Article 15 of Qanun-e-Shahadat Order, 1984, any witness may be compelled to answer any
question put to him connected with “matter in issue” in civil or criminal case, which may even criminate him
or expose him to a penalty or forfeiture of property. Such answer shall not render him to be arrested or
prosecuted. However, he may be prosecuted for giving false evidence.

Moreover, according to Article 143 of Qanun-e-Shahadat Order, 1984, it is discretionary power of the Court
to compel the witness or leave him considering the point of fact whether that point is material or
immaterial.

Question No. 06
Define accomplice (approver) can he be cited as a prosecution witness? Who is an accomplice? What is
evidentiary value of his testimony under Qanoon-e-Shahadat? Can conviction be based on such evidence?
What is legal presumption of an evidence of accomplice? [Jun, 2009/May, 2004/Nov,2008/Nov,2008/Feb,
2010]

Answer:
Accomplice

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Accomplice is an accused person guilty of an offence as an associate with other accused persons. According
to Article 16 of Qanun-e-Shahadat Order, 1984, an accomplice is allowed as a prosecution witness to give
evidence if the case is such which does not come under the law of punishment of hadd. The evidentiary
value of an accomplice’s testimony is, however, restricted by a legal presumption given under illustration (b)
of Article 129. This legal presumption states that an accomplice is presumed by Court to be unreliable if his
statements / narratives are not supported with other solid details.

But according to Article 16 of Qanun-e-Shahadat Order, 1984, this legal presumption does not make a
conviction illegal. It means conviction can be based on the evidence given by an accomplice. The legal
presumption mentioned above works only as a guide to help Court to be prudent and look for other material
details and do not just go by the evidence given by an accomplice since he may have given his evidence
under certain ulterior motives.

Question No. 07
How shall the competence of a person to testify and the number of witnesses required in any case be
determined? [Dec, 2003] / What is the prescribed number of witnesses under Qanun-e-Shahadat Order,
1984 for different cases?
Answer:
According to Article 17 of Qanun-e-Shahadat Order, 1984, the number of witnesses is to be determined in
accordance with the injunctions of Holy Quran and Sunnah of Holy Prophet (P.B.U.H). However, if there is no
specific provision in this regard in any other law, the number of witnesses shall be as under:

(i). If a matter relates to financial or future obligations and is put down upon a paper, it shall be attested
by two men or one man and two women. And the same number of witnesses shall be required in
such matter to testify.
(ii). In other cases, the number of witnesses shall be one man or woman or the number which the Court
determines as the situation demands.

Question No. 08
How the conduct motive, and preparation is proved and is relevant? OR How the previous and
subsequent conduct becomes relevant?

Answer:
According to Article 21 (1) of Qanun-e-Shahadat Order, 1984, any fact which constitutes a motive or
preparation relating to a “fact-in-issue” is relevant fact as it shows the act of party, proves the conduct,
motive and preparation of that person and is indication of such act having been done by that person.
According to Article 21(2) of Qanun-e-Shahadat Order, 1984, if the previous and subsequent conduct of any
of the parties in civil as well as in the criminal case is proved having inference to the fact in issue, it is
relevant. In other words, it may be said that the person against whom the previous or subsequent conduct is
proved, it is relevant.

Illustration No. 1
A question arises in the Court that “B” caused the death of “C” by administration of poison. The evidence
comes in the court that “B” procured the poison before the death of “C”. It gives an inference that “B” has
committed the offence. It is previous conduct and is relevant.

Illustration No. 2
“A” after committing the theft was going along the road with suitcase, containing the stolen properly. He
saw two Police Constables coming from the opposite side. While seeing the police men, “A” tried to conceal
his appearance. The police men ran after him and apprehended / arrested him along with the stolen

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property. In this case, the subsequent conduct shows that “A” has committed offence and therefore it is
relevant.

Question No. 09
Under what circumstances facts which are not otherwise relevant become relevant? Q7 (24th Nov,, 2008) /
On what principals of law a plea of alibi is admissible? Explain the principles and illustrate your answer?
Q5 (15th Jun, 2009) / How the facts otherwise irrelevant become relevant? OR Explain theory of alibi.

Answer:
Theory of alibi:
The word alibi is derived from Latin language and it means “elsewhere”. The theory of alibi states that when
a person accused of a crime denies the charge and states that at the time and date of commission of the said
crime he was not present at the site of crime but he was elsewhere, he is said to be applying the theory of
alibi.

How facts not otherwise relevant become relevant?


According to Article 24 of Qanun-e-Shahadat Order, 1984, irrelevant facts become relevant under following
two conditions:
1. According to Article 24(1) of Qanun-e-Shahadat Order, 1984, if facts, which are otherwise irrelevant,
make any “fact-in-issue” or relevant fact improbable then they become relevant. For example, if the
court after closing the prosecution side, is of opinion that the accused person is guilty of offence i.e., a
fact-in-issue is proved, but accused person applies the theory of alibi stating that at the time and date of
commission of offence he was elsewhere and the court is satisfied with the evidence that the accused
person was elsewhere the court shall declare the case as fabricated/false and planted against the
accused. Here the presence of the accused elsewhere than the site of crime becomes relevant.

2. According to Article 24(2) of Qanun-e-Shahadat Order, 1984, if facts, which are otherwise irrelevant, so
converge that they make any fact-in-issue or relevant fact likely or unlikely to have happened, they are
said to be relevant facts. For example a crime is committed and a person named “X” is accused of the
same, while there is a likelihood of other persons to have committed the very crime. But facts prove
each of the other persons innocent and not guilty. These facts which prove others not guilty are
irrelevant as far as the accused is concerned but by their so working they become relevant and make the
commission of the crime by accused person probable.

Question No. 10
Define admission and its evidentiary value under Qanoon-e-Shahadat. [Nov, 2000 / Feb, 2010 / May,
2003] / What is evidentiary value of ADMISSION of an accused while his is in police custody? [May, 2001] /
What is ADMISSION of fact and effect of the same by party to proceeding or his agent? [May, 2000].

Answer:
Admission is defined under Article 30 to 36 of Qanun-e-Shahadat Order, 1984. Admission is always used in
civil matters. It is an admission of facts admitted by the party in a civil case. The admission made by agent or
attorney of any party is bounded on the party. The admission made by any party can be denied at any stage
of the case; but it may operate as an estoppel. If there are several defendants in the civil case/suit and one
of the defendants admitted the facts and others deny. The admission of one of the defendants shall not be
conclusive proof on the other defendants as defined in Article 45. An admission m be proved on behalf of
the person making it under exception provided in Article 34 and cases under Article 46.

Question No. 11
A written contract, which is required by law to be reduced into writing, is produced in a court, then oral
evidence can be given to prove its terms? If no then why, if yes, then in which cases? Explain with

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examples. [Nov, 2004] / When “oral admission” as to contents of documents is relevant? / Under what
circumstances, “Oral admission” stands excluded?

Answer:
According to Article 35 read with Article 102 of Qanun-e-Shahadat Order, 1984, any agreement made
between parties in lawful matters in the shape of a document is itself a proof of fact to decide the
matter/case and no oral evidence as per Article 103 of Qanun-e-Shahadat Order, 1984 is admissible to rebut
or corroborate the contents of the documents.

Question No.12
Confession caused by inducement, threat or promise when become irrelevant in criminal proceedings?
[Nov, 1999) / Nov, 2008]

Answer:
According to Article 37 of Qanun-e-Shahadat Order, 1984, the confession made under threat, inducement,
promise or violence is irrelevant.
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the
confession appears to the Court to have been caused by any inducement, threat or promise having
reference to the charge against the accused person, proceeding from a person in authority and sufficient,
in the opinion of the Court to give the accused person grounds which would appear to him reasonable for
supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him.

Question No. 13
Explain with examples, whether a CONFESSION before a Police Officer in presence of a Nek Mard of a
village is admissible? If yes, then how much part and in what circumstances? [Oct, 2001 / [Nov,, 2004] /
Whether the confession made to police officer is admissible in evidence? / Under what circumstances and
to what extent information received from accused / or confession in custody of police officer may be
proved? [May, 2008]

Answer:
According to Article 38 of Qanun-e-Shahadat Order, 1984, the confession made by the accused person
before a Police Officer or Private Person (Elite) is irrelevant. And according to Article 39 of Qanun-e-
Shahadat Order, 1984, the confession made by an accused person before a Police Officer other than
Investigation Officer while in police custody is also irrelevant, unless it be made in the presence of a
Magistrate. However, according to Article 40 of Qanun-e-Shahadat Order, 1984, if during the confession
before a Police Officer or in Police custody, some valuable information is received by that confession and
resultantly some such facts are discovered than such part of confession may be relevant.

Question No. 14
How would you differentiate between “admission” and “confession”? [May, 2004]

Answer:
The following is the difference between Admission and Confession:
S No. ADMISSION CONFESSION
Admission is defined under section 30 to 36 Confession is defined under section 37 to 41
1.
of Qanun-e-Shahadat Order, 1984. of Qanun-e-Shahadat Order, 1984.
Admission is always used in civil matters. It is Confession is used in criminal cases. It is
an admission of facts admitted by the party in admission of guilt by the accused person in
2.
a Civil case. Criminal cases, which establishes
commission of the offence by him.

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The Admission made by agent or attorney of The confession is always made by the
3.
any party is bounded on the party. accused person personally.
The Admission made by any party can be The confession once made cannot be denied
4. denied at any stage of the case; but it may but can be retreated in the Trial Court.
operate as an estoppel.
If there are several defendants in the civil In confession, there is an effect of conclusive
case/suit and one of the defendant admitted proof on other accused persons if they are
the facts and others deny. The admission of tried jointly as provided in Article 43.
5.
one of the defendants shall not be conclusive
proof on the other defendants as defined in
Article 45.
An admission may be proved on behalf of the A confession always goes against the person
6. person making it under exception provided in making it.
Article 34 and cases under Article 46.

Question No.15
What is confession and when it becomes irrelevant? [May, 2000] / Under what circumstances a confession
made by an accused is irrelevant in criminal proceedings? [Dec, 2003 / Nov, 2002] OR What is confession?
Under what circumstances a confession becomes inadmissible in evidence? [May, 2007] / Define
“confession” and bring out clearly the requisites for its admissibility. [Nov, 2005] / What is the extra
judicial confession? Bring out clearly the requisites for its inadmissibility? [ Nov, 2006 / Jul, 2011]

Confession:
A confession is an admission made at any time by a person charged with a crime, stating or suggesting the
inference that he committed that crime. A confession is a statement which either admits in terms the
offence or at any rates substantially all the facts which constitute the offence.

Confession is a written acknowledgement of guilt by a party accused of an offence. Confession is the


acknowledgment by a criminal of the offence charged against him, when charged by any person or called
upon to plead to the indictment. A confession before trial, if given without any inducement in favour or
threat of punishment, is evidence against the person charged even though he may be in custody.

Judicial Confession:
Judicial confession is a confession recorded by a Magistrate with all the formalities provided by the law in
order to facilitate ascertainment of the confession having been given voluntarily.

Extrajudicial Confession:
The fact that confession is extrajudicial and not judicial does not really make any difference. The only
material difference between a judicial and an extrajudicial confession is that whereas the former is recorded
by a Magistrate with all the formalities in order to facilitate ascertainment of the confession having been
given voluntarily, the aid of these formalities and the evidence of the Magistrate are not available in the case
of extrajudicial confession. All the same, if it could otherwise be ascertained that the extrajudicial confession
has been made voluntarily and it was true, its probative value would be the same as that of a judicial
confession. Usually and as a matter of caution, courts require some material corroboration to an
extrajudicial confessional statement – corroboration which connects the accused person with the crime in
question.

Confession when irrelevant


1. According to Article 37 of Qanun-e-Shahadat Order, 1984, the confession made under threat,
inducement, promise or violence is irrelevant.

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2. According to Article 38 of Qanun-e-Shahadat Order, 1984, the confession made by the accused person
before a Police Officer or Private Person (Elite) is also irrelevant.

3. According to Article 39 of Qanun-e-Shahadat Order, 1984, the confession made by accused person
before a Police Officer other than Investigation Officer while in police custody is also irrelevant, unless it
be made in the presence of a Magistrate.

4. According to Article 40 of Qanun-e-Shahadat Order, 1984, the confession made by accused person
before a Police Officer giving information based on the circumstantial evidence whereby the accused has
disclosed the facts of the case regarding the commission of the crime step by step and the case property
has also been delivered by him in the presence of the respectable persons / mashirs, carries some
weight for consideration of the Court.

Confession when relevant:


According to Article 41 of Qanun-e-Shahadat Order, 1984, the confession recorded by the authorized
Magistrate after removal of threat, promise, or inducement, etc if any, in accordance with the procedure laid
down in Section 364 of CR.P.C is relevant.

Question No. 16
In what circumstances, a statement of person is relevant when he cannot be called as a witness? Explain
with examples. [Nov, 2004 / Oct, 2001 / May, 2003] / What are the cases in which statement of relevant
facts by person who is dead or cannot be found is relevant? [Feb, 2010] / Under what circumstances the
previous statement of person who is either dead or has become lunatic or has gone far off and his
attendance cannot be procured, becomes relevant?

Answer:
According to Article 46 of Qanun-e-Shahadat Order, 1984, the previous statement of a person written or
verbal who is either dead or cannot be found, or has become incapable or has gone far away and his
attendance cannot be ensured without unnecessary expenses or within a reasonable time, is relevant in the
following cases:

1) If it relates to the cause of such person’s death. In simple term, if it is a dying declaration.
2) If the statement is of routine business nature relating to entries made in books, receipt of any
property or about dates of any document.
3) If it is against his pecuniary or proprietary rights or such as would incriminate him.
4) If it is statement relating to public rights or customs but made before occurrence of any
disagreement about them.
5) If it relates to disclosure of the relation of marriage or adoption of child but made before
occurrence of any disagreement about them.
6) If it relates to a will or deed but made before the crop up of any disagreement about the same.
7) If it relates to a document about any transaction by which right was claimed, created, modified,
recognized, or denied.
8) If it is made by several persons and expresses feelings relevant to matter in question

Question No. 17
Write detailed note on dying declaration. [May, 1999] / What is Dying declaration? Can it be relied upon?
[May, 2001]/ Discuss the importance and value of “Dying declaration”[May, 2004]

Answer:
Dying Declaration:

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When a dying person makes any statement showing the cause of his death or giving the particulars of the
situation in which his death occurred is called a “Dying Declaration”. Dying declaration may be oral or
written. Dying declaration is the strong prosecution evidence against the accused because it is natural law
that a person at the time of death will never tell a lie. Such person is on the verge of death, loses any interest
in this world and has no hope of recovery so he always speaks the truth. Therefore, dying declarations are
considered by law to be equal to an oath made as per law. Moreover, dying declaration is also considered an
important piece of evidence for arriving at the truth and satisfying the demands of justice, because in some
cases the only eye-witness of the incidents is often the dying person.

According to Article 46(1) of Qanun-e-Shahadat Order, 1984, the dying declaration of a person who is dead is
relevant and can be relied upon. However, dying declarations cannot be relied blindfold. It is must of
necessity that dying declaration should be proved in Court to be genuine and based on truth, because in
some cases conviction may be based on such dying declaration. Therefore for establishing the genuineness
of a dying declaration, valid and rational justification is also required. The oral dying declaration without the
valid and rational justification being found is weak evidence and cannot be depended upon. The method of
proving the genuineness and truth of a dying declaration is to call the persons who were present at the time
of death of the person and they saw or heard the declaration being made or written. However, in case the
person making a dying declaration survives by chance and goes back from his statement in the trial court,
the dying declaration cannot be used against the accused.

Question No. 18
How previous statement or entries made in the account books kept in course of business becomes
relevant when a person is either dead or incapable of giving statement?

Answer:
When a person is responsible for any routine business work, it is generally supposed that he would have
performed his duty correctly. Secondly, every business is usually a complex whole and every bit of work is
somehow related with another, so it is very unlikely that there could be any fraudulent entries or records
and the same could go unnoticed. Moreover, it is also a convenient way to rely upon such statements than
to go over every bit of evidence minutely just for the sake of suspicion of any wrongdoing. Therefore,
according to Article 46(2) of Qanun-e-Shahadat Order, 1984, the previous written or oral statement made as
part of routine business relating to entries made in books, receipt of any property or about dates of any
document by a person who is either dead or incapable of giving statement is relevant.

Question No. 19
Can a statement made by a person against his interest become relevant when he dies?

Answer:
No one forgoes any right just for the heck of it and no one states anything disadvantageous to his financial or
legal rights until and unless he is quite sure that he has no right over the stated thing or property. So, if a
deceased man gave a statement which was against his interest, it must be true. It is in view of the above
stated facts, that according to Article 46(3) of Qanun-e-Shahadat Order, 1984, the previous statement made
by deceased person even against his own financial or ownership rights or such a statement as might
incriminate him is relevant.

Question No. 20
Under what circumstances, the previous statement / evidence of a person becomes relevant in the
subsequent proceedings in new case?

Answer:

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According to Article 47 of Qanun-e-Shahadat Order, 1984, the previous statement / evidence given in a
judicial proceeding becomes relevant for proving if the witness is (i) dead (ii) cannot be found (iii) incapable
or (iv) his presence cannot be had, if the subsequent case meets the following criteria:
(i). If the case is founded on same “question-in-issue”
(ii). If the parties are same in the proceeding
(iii). If the right of cross-examination has been given to adverse party in first proceedings.

Question No. 21
When is the opinion of third person relevant? [Feb, 2010 / Dec, 2003 /May, 2000) / Oct, 2001] / On what
points opinions of experts are relevant under Qanun-e-Shahadat Order, 1984? [Nov, 2004 / Nov, 1999 /
May, 2002] / Explain the 3rd person evidence. / Define Expert (Third Person).

Answer:
An Expert / 3rd Person
An expert under Article 59 of Qanun-e-Shahadat Order, 1984, means the skilled and duly qualified person
having expertise in any field of science, art, foreign law, or analysis of chemicals, fingerprints, handwriting,
etc. whether such expertise has been acquired by study of a particular subject in a institution or by self study
and observation.

Opinion of Experts / Third Person Opinion / Third Person Evidence


According to Article 59 of Qanun-e-Shahadat Order, 1984, when a question arises in the court about the
identification of handwriting, signature, thumb impression, will, or analysis of chemical substances, or
understanding of any topic of any field of science, art or a foreign law, etc., the court shall refer the matter
to an expert who is skilled person in the technique and knowledge of related field for his opinion. The
opinion of expert received by the Court is called the 3rd person evidence and it is relevant / admissible.

While giving his opinion in a Court, an expert gives his reasons for his opinion and supplies the books and
other material if any on which his opinion might have been based. If any expert whose evidence is required
is dead or cannot be called to court due to unnecessary delay or expense involved, his opinion may be
produced from his published books.

Question No. 22
What is the relevancy of character in civil and criminal proceedings? [May, 2003] / How the good and bad
character of parties becomes relevant?

Answer:
According to Article 66 of Qanun-e-Shahadat Order, 1984, in civil cases if any evidence comes before the
court showing that one of the party in civil case bears / holds a bad or good character it is not admissible and
shall be treated irrelevant by the court.

According to Article 67 of Qanun-e-Shahadat Order, 1984, in Criminal matters, if the character of the
accused is revealed to be good, it is relevant and bad character is not relevant.

According to Article 68 of Qanun-e-Shahadat Order, 1984, if the good character of the accused is claimed by
a party in criminal proceedings then the bad character also becomes relevant in reply. Moreover, bad
character of the accused also becomes relevant if the fact in issue to be decided is the character of accused
person itself.

Question No. 23
What is evidence and what are the different types of evidence? / Define evidence. What do you know
about primary and secondary evidence? In what circumstances and how can secondary evidence be laid at

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trial? [May, 2002 / Nov,, 1999] / What is primary evidence? Discuss in detail with examples. [May, 2007] /
Explain secondary evidence and in which cases it relating to a document can be given. [May, 2002 / May,
2003 / May, 2001] What is the secondary evidence? Explain it with examples? [Nov, 2006 / May, 2008 /
25th Jul, 2011] / Explain in detail documentary evidence and how documentary evidence is to be proved
and accepted? [Feb, 2010] / What is document? How the contents of the documents may be proved?
[Nov, 2002] / Under what circumstances, the secondary evidence is admissible in the court?

Answer:
EVIDENCE
According to clause (c) of Article 2(1) of Qanun-e-Shahadat Order, 1984, statements given by the witness in
relation to matters of fact under inquiry and documents produced for the inspection of the Court related
with the fact-in-issue constitute evidence. It means there are two types of evidence: one is called Oral
Evidence and other is Documentary Evidence. Evidence is further divided into two kinds: One is called
PRIMARY Evidence where the original document is produced for inspection of the Court and the other is
called SECONDARY Evidence where the certified or attested copy of the original document is produced for
the inspection of the Court.

ORAL EVIDENCE
According to clause (c) of Article 2 (1) of Qanun-e-Shahadat Order, 1984, the oral evidence means statement
of a witness made personally before the court giving evidence relating to a fact-in-issue. According to Article
71 of Qanun-e-Shahadat Order, 1984, oral evidence should always be direct, i.e., it should be based on the
following grounds:
1) That I saw it personally
2) That I heard it personally
3) That I perceived it by my senses
4) That I formed an opinion about the situation

However, the evidence of experts and the evidence of persons recorded in commission under Section 503
and 506 of Cr. P.C are also treated as Oral Evidence though they do not appear in the Court personally.

DOCUMENTARY EVIDENCE
The documentary evidence means if any matter is expressed on any substance by way of writing marks,
map/sketch which is used as a piece of evidence relating to the fact-in-issue it is called documentary
evidence. The documentary evidence is best evidence in comparison to oral evidence because the contents
of documents are itself the decision of case.

There are two kinds of documentary evidence as mentioned below:

PRIMARY EVIDENCE
According to Article 73 of Qanun-e-Shahadat Order, 1984, Primary Evidence means the document itself
produced for the inspection of Court. Court always prefers the Primary Evidence over the Secondary
Evidence. Some explanation has also been given under this Article regarding primary evidence which is as
follows:
a) If a document is in many parts, each part is primary evidence of the document and if a document
has other equivalents, each equivalent / counterpart is primary evidence.
b) If so many copies have been produced by any means of reproduction such as printing press,
lithography, photography etc, then each such copy is a primary evidence of the contents of the
other such copies but if the copies have been made from the single original document then none of
the such copies is the primary evidence of the original document.
c) Any hardcopy of an electronic document produced with the help of Information Technology is also
primary evidence.

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d) If it could be ascertained by the security measures such as IP address and time and date then, the
first generated, sent or received soft copy of an electronic document produced by Information
Technology is also primary evidence.

SECONDARY EVIDENCE
According to Article 74 of Qanun-e-Shahadat Order, 1984, Secondary Evidence consists of the attested /
certified copies, Xeroxed copies, reproduced copy or equivalents of documents produced in the Court for its
inspection. Even verbal statement of the contents of the original documents given in the Court is also
Secondary Evidence.

According to Article 75 of Qanun-e-Shahadat Order, 1984, first priority is always given to the primary
evidence by the court. However, if the primary evidence cannot be had, then secondary evidence is relied
upon by the Court. Moreover, secondary evidence is admitted by the Court on certain grounds mentioned
under Article 76 of Qanun-e-Shahadat Order, 1984 which are as follows:

1) If the original document is in the custody of rival party, or if it is in the possession of a person who is
far away and cannot be reached by the party, or if the person does not abide by the order issued
vide Article 77 to produce the same.
2) If the rival party does not object to the veracity of the secondary evidence.
3) If the original document is destroyed or lost.
4) If it is very large and cannot be produced in original form, then secondary evidence in the form of
microfilming or soft copy is admissible
5) If the original is immovable.
6) If it is a public document which is in custody of public / government servant.
7) If it is one of those documents whose certified copies are allowed.

The certified copies are admissible where the Court finds that they have been issued by the officer in whose
custody the original lies and that it must be properly sealed / stamped and duly certified by that officer.

Question No. 24
How handwriting and signature on a document is to be proved if disputed? Discuss in detail. [May, 2007]

Answer:
Article 78 of Qanun-e-Shahadat Order, 1984 requires that when a document is stated to have been signed or
written by any person, the signature or handwriting of that person should be proved. The handwriting and
signature on a document is proved through any of the following manners:

1) By calling the person who signed or wrote the document.


2) By calling the person in whose presence the document was signed or written.
3) By calling a handwriting expert.
4) By calling a person acquainted with the handwriting of the person by whom the document is
supposed to have been signed or written.
5) By comparing in Court the disputed signature or handwriting with some admitted signature or
handwriting.
6) By proof of an admission by the person who is alleged to have signed or written the document that
he signed or wrote it.
7) By the statement of a deceased professional scribe, made in the ordinary course of business, that
the signature on the document is that of a particular person.
8) A signature is proved to have been made if it is shown to have been made at the request of a person
by some other person, e.g., by the scribe who signed on behalf of the executants.
9) By other circumstantial evidence.

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Question No. 25
What is the mode of proving the execution of documents required by law to be attested and documents
not required by law to be attested? [ May, 2002 / Nov, 1999 / Dec, 2003]

Answer:
According to Article 79 of Qanun-e-Shahadat Order, 1984, when any document is required by law to be
attested, the execution of that document shall be proved by two attesting witnesses.

According to Article 83 of Qanun-e-Shahadat Order, 1984, when a document is attested but it is not required
by law to be attested shall be proved as though it is unattested.

Question No. 26
What do you know about public document? Differentiate between public document and private
document with illustrations. How a public document is to be proved? [May, 2001] / Differentiate between
public documents and private documents. [Nov,, 2002] / Which are public documents? How the public
documents may be proved? [ Nov,, 2006]

Answer:
PUBLIC DOCUMENT
The definition of public documents is given in Article 85 of Qanun-e-Shahadat Order, 1984. According to this
Article, following are the public documents:
1) Documents forming the acts or records of the acts of sovereign authority, of official bodies and
tribunals; and of public officers, legislative, judicial and executive, of any part of Pakistan or of a
foreign country.
2) Public records kept in Pakistan of private documents.
3) Documents forming part of the records of judicial proceedings.
4) Documents required to be maintained by a public servant under any law.
5) Registered documents, the execution whereof is not disputed.
6) Certificates deposited in a repository pursuant to the provisions of the Electronic Transactions
Ordinance 2002.

PRIVATE DOCUMENT
The definition of private documents is given in Article 86 of Qanun-e-Shahadat Order, 1984. According to this
Article private documents are those documents which are not public documents as defined by Article 85 of
Qanun-e-Shahadat Order, 1984. It means if any document is not a public document it is a private document.

Question No. 27
What are the various kinds of presumptions recognized by law? [Nov, 2005) /May, 1999) /Nov, 2000) /
What presumption is attached to the certified copy of the official documents and to documents produced
as record of evidence? [May, 2008] / what documents are presumed to be genuine? [Dec, 2003] / How
would you prove the following? (a). Age of a person (b). A will (c). A deed (d). A document thirty years old
(e). A gift of immovable property? [May, 1999] / what are the presumptions as to documents:

Answer:
Articles 90 to 100 of Qanun-e-Shahadat Order, 1984 are about the presumptions of Court as to certain
documents.

According to Article 90(1) of Qanun-e-Shahadat Order, 1984, the Court shall presume every document or
certificate duly certified by any officer of the Federal / Provincial Government to be genuine: (i) if it purports
to be a certificate (ii). if the document is admissible as evidence for a particular fact, (iii). if it is duly certified

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by the concerned office to be genuine, (iv). if it purports to be executed in the prescribed manner. According
to Article 90(2) of the Qanun-e-Shahadat Order, 1984, the Court shall also presume the official character of
the officer who issues, holds, signs, or attests the documents.

The other presumptions of the court about certain documents are as follows:
Article Nature of Document The Court shall presume that
91 Record or memorandum of evidence It is genuine and evidence was made before the
given by a witness in a judicial Judge or Magistrate by that person in the same
proceedings or confession circumstances as it maintains.
92 Documents kept substantially in the It is genuine.
prescribed form by any person under
direction of law
93 Maps or plans made by any authority It is genuine and accurate.
of Government
94 Books purporting to be printed or It is genuine.
published under the authority of any
government of country containing
laws of country and reports of the
decision of the Courts
95 Power-of-Attorney executed before a It was executed before a notary public or any
Court, Judge, Magistrate or Notary Court, Judge, Magistrate, Pakistan Counsel, as
Public the case may be.
96 Certified copies of foreign judicial It is genuine and accurate in conformity to the
records manner commonly in use in such country
97 Books, maps, or charts on matters of It was written and published by the person who
public or general interest it purports to have published / written it.
98 Telegraphic messages sent to a person The message forwarded from Telegraph office
and message delivered for transmission to
concerned person are corresponding.
99 Execution of documents not produced It was attested, stamped and executed in the
in Court proper manner.
100 Document which is 30 years old The signature and handwriting is of the person
purporting to have signed or written it.
101 Certified copies of documents, 30 The signature and handwriting is of the person
years old purporting to have signed or written it.

Question No. 28
Under what circumstances the oral evidence is excluded by the court? OR Under what circumstances, the
Oral evidence is not admissible and is excluded?

Answer:
Inadmissibility or exclusion of oral evidence by documentary evidence
Articles 102, 103 and 104 of Chapter VI of Qanun-e-Shahadat Order, 1984 deal with exclusion of oral
evidence by documentary evidence. Brief discussion of the same follows:

According to Article 102 of Qanun-e-Shahadat Order, 1984, if a contract, a grant, a disposition of property or
any other matter so required by law has been executed in writing or carried out in the form of a document
between two parties and in case the matter contended in such documents or the documents become bone
of contention between these parties and they go to court, then the exclusive proof of the contents or terms
of such documents shall be that particular documents. Secondary evidence in the form of document is also

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admissible if it is allowed in that particular case. However, no oral evidence shall be admissible, because
according to this Article document is the exclusive proof of the contents of the document.

The same condition of inadmissibility of oral evidence is further clarified in Article 103 of Qanun-e-Shahadat
Order, 1984. It states that in the above case, if the contents or terms of any document mentioned in Article
102 have been proved with the help of primary documentary evidence or secondary documentary evidence,
then no party to the case shall be allowed to deviate from the position mentioned in such document by oral
evidence of any other oral agreement or statement. In other words, document itself is the conclusive proof
of its terms and conditions and further oral evidence is not admissible.

According to Article 104 of Qanun-e-Shahadat Order, 1984, oral evidence is also not admissible / is also
excluded if the terms and conditions of documents have been mentioned in simple language and everything
contained in the document is clear and there is no indistinctness or ambiguity.

Admissibility of oral evidence along with documentary evidence


However, according to Article 105, Article 106 and Article 107 of Qanun-e-Shahadat Order, 1984, further
evidence is admissible if the document contains certain ambiguity and the language used in the document
might be inferred to mean different things by different persons.

Moreover, according to Article 108 of Qanun-e-Shahadat Order, 1984, further evidence can also be
admissible if the language of the document is unreadable or contains any jargon of any particular field or
area. For example, handwriting, shorthand writing, any foreign language, vernacular of any area, particular
terminology of different sciences.

Furthermore, according to Article 109 of Qanun-e-Shahadat Order, 1984, oral evidence of third party i.e., a
person who is not party to the case is also admissible if he gives evidence to anything not contained in the
document but orally agreed to by the parties at the time of execution of document.

Question No. 29
Define the facts of which Court must take judicial notice. [Feb, 2010] / Which are the facts, which need not
to be proved by the court? / Whether a court can take judicial notice of any fact? If yes, then in which
cases, if not, then in which cases? Explain with examples. [May, 2002] / Admitted facts need not to be
proved. Define and discuss in detail. [May, 2007]

Answer:
Judicial notice:
Court may accept as true certain matters of common knowledge or well known facts, statements in books,
reports, Gazettes, Government publications etc.

According to Article 111 of Qanun-e-Shahadat Order, 1984, when the Court takes judicial notice of any fact,
it need not be proved with further evidence. Judicial notice of the Court means that the Court accepts a fact
as true without any evidentiary proof because it comes under common knowledge or well known facts or
statements in books, reports, Gazettes, or Government publications or other such source.

Article 112(1) of Qanun-e-Shahadat Order, 1984 gives a general view of some of the facts of which the Court
may take judicial notice. However, the list of facts given in clause (1) of Article 112 is not comprehensive. The
list of such facts has been generalized further still in clause (2) of Article 112 which states that if the Court is
not sure about any fact, either mentioned in the list provided in clause (1) or any other general fact of
history, literature, science or art, it may refer to books or any other source for making up its opinion about
such fact.

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According to Article 112(3) of Qanun-e-Shahadat Order, 1984, the Court has the discretionary power to
either take judicial notice of any fact or not. However, if a fact is proved with the help of any book or
document by any person to be such as the Court should take judicial notice, the Court shall take judicial
notice of that fact.

According to Article 113 of Qanun-e-Shahadat Order, 1984, the facts mutually admitted by the parties to a
case need not be proved by further evidence; and they may be treated as facts. However, the Court may
state that such admission of facts is not enough and the admitted facts be proved in any other way.

Question No. 30
Define principle of estoppel with illustrations. What is its applicability and scope. [Jul, 2011 / Nov,
2006/May, 2000] OR What do you know about “estoppel”? In what cases it operates? Explain with
examples. [Nov, 2004] OR Write notes on (i). Estoppel by deed (ii). Estoppel by Record (iii). Estoppel in pais

Answer:
Estoppel
The principle of Estoppel has been defined in detail in the Articles 114, 115 and 116 of Chapter VIII of Qanun-
e-Shahadat Order, 1984. It is used in civil matters only and not in criminal matters.

According to Article 114 of Qanun-e-Shahadat Order, 1984, if “A” by any means deliberately makes “B” to
believe something to be true and “B” engages in any transaction, reduced in writing, with him concerning
that thing, “A” cannot be allowed to deviate from his statement afterwards in any case. In simple words,
Estoppel means denial from previous commitment by a party in civil matters. It ends the litigation.

The applicability & scope of Estoppel


The principle of Estoppel applies if it is established by a Court that “A” had made “B” to believe anything, and
on that belief, “B” had actually acted in any manner and lastly, “A” had on purpose made “B” to believe that
thing and act upon it. If the above three conditions are proved in a Court, the principle of Estoppel applies in
that case and “A” is not allowed to deny / go against his previous commitment. Moreover, it may be
mentioned here that Estoppel shall apply on “A” whether he wanted to deceive “B” or he did not realize the
actual position himself.

There are three kinds of Estoppel: (i). Estoppel by record, (ii). Estoppel by deed (iii).Estoppel in pais. The brief
description of each follows:

1) 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 again litigating the same issues or causes of
action.

2) ESTOPPEL BY DEED
Estoppel by deed is often regarded as technical or formal estoppel. Where rules of evidence prevent a
litigant from denying the truth of what was said or done. Any agreement reduced in writing in lawful manner
executed by both parties is binding on both parties to abide by the terms and conditions shown in the deed.
No denial of contents of the deed is admissible.

3) ESTOPPEL IN PAIS
It means any party in civil matter goes back from his previous commitment though reduced in writing. Its
denial is admissible to act further in the following cases:

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“A” makes “B” to believe something to be true, but actually it is not truth. On that belief, “B” makes some
financial transaction with “A” about the disposition of the property. After some time, “B” comes to know
that representation made by “A” was false and “B” files Civil suit against “A” for abiding by his commitment.
In this case, denial of “A” to act further is admissible because at the time of making commitment, “A” was
not owner of the property.

Question No. 31
Under what circumstances estoppel will be applicable in the case of landlord and tenant? [May, 2008] /
Explain the doctrine of Estoppel between landlord and tenant?

Answer:
According to Article 115 of Qanun-e-Shahadat Order, 1984, the relationship between landlord and tenant
shall remain the same though the landlord sells his land to another land lord. Both of them shall recognize
each other as landlord and tenant vice versa.

Illustration / example:
“A” is landlord. “B” is his tenant. “A” sells the land to “C”. “B” shall recognize “C” as landlord and “C” shall
also recognize “B” as tenant. Both of them shall not deny this relationship.

Question No. 32
Explain the doctrine of estoppel between bailer and bailee.

Answer:
According to Article 116 of Qanun-e-Shahadat Order, 1984, if the bailer sends the goods on the demand of
bailee by any conveyance and the goods while in transit are destroyed and the bailee refuses to make the
payment of the goods to the bailer, on the ground that he is not in receipt of the goods, the denial of bailee
is not admissible. The bailer filed the civil suit against the bailee before the civil court, showing the receipt of
dispatch of goods to the bailee, the court shall issue the decree against the bailee for payment of goods to
the bailer.

Question No. 33
Define, burden of proof. Give your answer with examples. [Nov, 1999/Oct, 2001] OR Explain “Burden of
proof” and whom it lies in civil and criminal litigation and how shifted from one to another with examples.
[May, 2000/May, 2004/May, 2003] OR Explain the term “Burden of Proof” in detail and in what cases
burden of proof is determined by presumption? [Nov, 2008] When court may presume existence of certain
facts, give illustrations. [Nov, 2006] / On whom the burden of proof lies in the case of the theory of alibi? /
In case of good-faith, self defence and grave sudden provocation on whom burden of proof shall lie? / On
whom the burden of proof lies in case of missing person? / How the legitimacy of child is determined by
the court?

Answer:
The term “Burden of Proof” and related issues have been described under Article 117 to 129 of Chapter IX of
Qanun-e-Shahadat Order, 1984. Brief explanation of the same follows:

According to Article 117 of Qanun-e-Shahadat Order, 1984, it is a general rule that burden of proof shall lie
on that party which has moved the Court to give the decision regarding establishment of claim or liability on
the fact-in-issue.

According to Article 118 of Qanun-e-Shahadat Order, 1984, the burden of proof lies on that party which
would lose if no evidence for or against is given.

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The Burden of Proof is shifted to the other party in the Criminal as well as Civil matters in the following
cases:

According to Article 119 of Qanun-e-Shahadat Order, 1984, when accused person gives the statement in the
court that he is innocent and has been involved in fabricated / false case, stating that at the time of
commission of offence he was elsewhere and not present at the site. In this case, burden of proof lies upon
the accused person to produce evidence to the satisfaction of court that how he was elsewhere.

According to Article 120 of Qanun-e-Shahadat Order, 1984, if evidence is to be given in connection with
something which was not available in original, or someone who was not available himself, the burden of
proof to prove the same lies upon the person who wants to prove with that subsequent / secondary thing.

According to Article 121 of Qanun-e-Shahadat Order, 1984, if the accused in his statement states that he has
acted or committed offence on grave or sudden provocation, the burden of proof shall lie upon the accused
to prove that he actually acted on grave or sudden provocation. And if the accused person in his statement
states that he has acted in good faith or in self defence, burden of proof shall lie upon the accused to prove
how he acted in good faith.

According to Article 122 of Qanun-e-Shahadat Order, 1984, if any fact was within the knowledge of a person,
the burden of proof shall lie upon that person.

According to Article 123 of Qanun-e-Shahadat Order, 1984, if a question arises in the Court where a person
is not seen or heard alive for about 30 years; and a party says that he is alive, the burden of proof shall lie
upon that party which says that he is dead.

According to Article 124 of Qanun-e-Shahadat Order, 1984, if a question arises in the Court that a person
who is not seen or heard alive for about 7 years; and if a party says that he is dead, the burden of proof shall
lie upon that party which says he is alive.

According to Article 125 of Qanun-e-Shahadat Order, 1984, if a question arises in the Court to determine the
relationship between partners, landlord and tenant, or principal and agent, the burden of proof shall lie
upon both parties to give evidence that how the relationship of partnership still exists or has ceased to exist.

According to Article 126 of Qanun-e-Shahadat Order, 1984, if a question arises in the Court to determine the
title/right of ownership of any property under litigation between two parties, the burden of proof shall lie
upon such party which is not in possession of the property to satisfy the Court that he was dispossessed
from that property.

According to Article 127 of Qanun-e-Shahadat Order, 1984, if a question arises in the Court that attorney has
not acted in good faith of the Superior, whereby the Superior has sustained heavy loss and damages, the
burden of proof shall lie upon attorney to prove that he acted for welfare of Superior.

When a question arises in the court about determination of legitimacy / illegitimacy of a child: In this case,
according to Article 128 of Qanun-e-Shahadat Order, 1984, if the father of child is alive, the court shall call
him and record his statement and if he owns his child the court shall declare the child legitimate. In case, he
does not own the child, the court shall declare the child illegitimate. In case the father of child is not alive,
the court shall record the evidence and to ascertain that if the child is born within 280 days from the date of
separation of mother of child from his father and birth date of child and finds that the child was born within
280 days, the court shall declare the child as legitimate and in otherwise case illegitimate.

Presumptions as to determination of burden of proof:

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According to Article 129 of Qanun-e-Shahadat Order, 1984, in some cases the Court may make certain
presumptions regarding certain facts and determine which party to case shall have to prove the fact i.e., on
which party the burden of proof shall lie. These presumptions relate to those facts which are likely to be
occurring due to general pattern of things in which they occur. Some of such presumptions have been
described under this article, which are as under:

1) If a man has some stolen goods in his possession, he is likely to be a thief himself or has very likely
traded the same, having knowledge of their being stolen.
2) An accomplice as a witness is unreliable if his statement is not justified with material evidence.
3) A bill of exchange is likely to have been lawfully accepted or endorsed.
4) If a thing is said to be existing and it is not likely for it to not exist as per general knowledge, then it can
be presumed to exist.
5) Court presumes that the business of Court and any office is routinely carried out.
6) That the proper procedure has been followed in particular cases.
7) That the evidence must be unfavourable to the person who withholds it.
8) When a person shies from answering a question, it means the answer to that question would certainly
be against him.
9) When a person has any obligation to discharge under certain document and he possesses the document,
he would have discharged the same.

Question No. 34
What is the order of examination of witness? / What is the purpose of cross examination and re-
examination? [May, 2003] / What is the purpose of re-examination of a witness? Can the adverse party
further cross examine him? [Dec, 2003] / Define examination in chief cross examination & re-examination
of witness by court. [May, 2008]

Answer:
Examination in Chief:
According to Article 132(1) of Qanun-e-Shahadat Order, 1984, Examination-in-chief means the examination
of a witness by the party who has called that witness.

Cross-examination:
According to Article 132(2) of Qanun-e-Shahadat Order, 1984, Cross-examination means the examination of
a witness by the adverse party.

Re-examination:
Re-examination vide Article 132(3) of Qanun-e-Shahadat Order, 1984, means the examination of a witness
by the party who has called him after he has been cross-examined by the adverse party with the permission
of the Court on some material point.

Order of examinations:
According to Article 133(1) of Qanun-e-Shahadat Order, 1984, the order of examinations is examination in
chief, then cross examination and in the last re-examination.

Question No. 35
Can a person called to produce documents be cross examined? [Dec, 2003] / Which person cannot be
cross-examined in the Court? Discuss.

Answer:

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According to Article 134 of Qanun-e-Shahadat Order, 1984, when any person is required by the Court to
produce a document or record for inspection of the Court and he is not called as a witness, he cannot be
cross examined. However, he can be cross-examined, if he is called in the Court as a witness.

Question No. 36
Define leading question. Under what circumstances, leading questions may be asked? [May, 2001] / What
is a leading Question, and when may or may it not be asked in cross examination? [May, 2003] / What do
you mean by leading Question in evidence? [May, 2008]

Answer:
According to Article 136 of Qanun-e-Shahadat Order, 1984, the leading questions are those questions, which
suggest the answer. In other words, it may be said that question is itself an answer to lead the witness to
state likewise.

According to Article 137(1) of Qanun-e-Shahadat Order, 1984, leading questions cannot be asked in
examination in chief and re-examination without the permission of the Court if the adverse party objects.
According to Article 137(2) of Qanun-e-Shahadat Order, 1984, the Court may allow leading questions for
undisputed matters or proved facts.

According to Article 138 of Qanun-e-Shahadat Order, 1984, leading questions may be asked in cross-
examination.

Question No. 37
What questions are lawful in cross examination? Nov, 2008) / what questions are permissible in cross
examination? When is evidence to contradict answers to questions testing veracity admissible? [May,
1999) / What questions are permissible in a cross examination? Is this subject to any limitation? [Nov,
2000)/ May, 2002]

Answer:
According to Article 141 of Qanun-e-Shahadat Order, 1984, all questions which are relevant to the facts-in-
issue or facts connected with fact-in-issue directly or indirectly are lawful questions. However, the following
questions are lawful though they might not have relevancy with facts-in-issue.
1) Questions relating to test the veracity of witness
2) Questions related to the status of the witness in life.
3) Question put to show the witness in bad light just for the sake of shaking his confidence so that he
might expose himself.

Question No. 38
What is the procedure of the court if an advocate asks a question in cross examination without any
reasonable ground? [May, 2003] OR What questions are forbidden in cross examination? [May, 2003] OR
What are the unlawful questions to be forbidden by the court?

Answer:
According to Article 144 to 146 of Qanun-e-Shahadat Order, 1984, all indecent, scandalous, abusive,
unreasonable and slanderous questions are not to be put to witness, and if such questions are put, the Court
may take action against the advocate by reporting the facts to the High Court for suspension or cancellation
of his licence, as provided in Article 145.

Question No. 39
When can a party cross examine its own witness? [May, 2000 / Dec, 2003] / Define hostile witness? OR
Can a witness be examined by its own party?

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Answer:
Hostile Witness:
The hostile witness is that witness who gives evidence in the Court against the party who called him as his
own witness. One who appears from his conduct and manner that he is not desirous of telling truth to the
Court is also called a hostile witness.

Can a witness be examined by its own party?


According to Article 150 of Qanun-e-Shahadat Order, 1984, a witness can be cross-examined by his own
party with the permission of the Court if the party declares him as Hostile witness

Question No. 40
How the credit of witness is impeached? Q7 (17th May, 2000) / Under what circumstances, / on what
grounds, the credit of witness may be impeached?

Answer:
According to Article 151 of Qanun-e-Shahadat Order, 1984, the credit of witness may be impeached by the
trial court if the adverse party gives evidence to the satisfaction of the court that the witness is unworthy of
credit on the following grounds:

1. That the witness has previously been sentenced in rape case.


2. That the witness has previously been convicted under section 193 of PPC on false evidence.
3. That the witness is habitual offender and has been bound down for maintenance of good behavior
under section 110 of Cr.P.C
4. That the witness has been purchased by the adverse party.

If any of the above evidence comes before the court, it is discretionary power of the court to impeach the
credit or not, showing the reasons that the witness has now amended his character.

Question No. 41
Define cross-examination of a witness as to the previous statement in writing during evidence. [Nov, 2006
/ Jul, 2011] / or can a witness be allowed to refresh his memory of his previous statement reduced in
writing?

Answer:
According to Article 155 of Qanun-e-Shahadat Order, 1984, the Court shall allow the witness or the expert to
inspect the previous evidence / statement given by him in writing to refresh his memory. The adverse party
shall also be allowed at their request to see the previous statement / evidence while cross-examining the
evidence as proved in Article 157 of Qanun-e-Shahadat Order, 1984.

Question No. 42
Discuss whether and when the improper admission or rejection of evidence is ground itself for a new trial
or reversal of decision in a case? [Nov, 2005 / Jun, 2009] / Is new trial admissible for improper rejection of
evidence or improper acceptance of evidence?

Answer:
According to Article 162 of Qanun-e-Shahadat Order, 1984, the Court shall not order for new trial of any case
on the grounds that its subordinate Court while deciding the case has rejected the evidence of applicant or
accepted the evidence of other party despite objection of applicant; and that if the lower Court had
accepted the evidence, the case would have been decided in the favour of the applicant.

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However, the Appellate Court may order for new trial of the case if the applicant gives evidence satisfying
the Appellate Court that the Presiding Officer of the lower Court was prejudiced against the applicant,
therefore, he voluntarily acted in favour of other party.

Question No. 43
What is scope of acceptance & denial of claim on oath in Civil Litigation? Is it applicable in criminal cases?
Q6 (26th May, 2008) / How the decision of case is taken on the basis of oath? OR What do you know about
the acceptance or denial of the claim on oath and giving decision on the basis of oath?

Answer:
According to Article 163(1) of Qanun-e-Shahadat Order, 1984, if the plaintiff takes oath that his claim is
genuine, the Court shall ask the defendant to take oath to deny the claim of the plaintiff.

According to Article 163(2) of Qanun-e-Shahadat Order, 1984, in the above case, the Court may pass
whatever orders it prefers regarding cost to be paid by any of the party.

According to Article 163(3) of Qanun-e-Shahadat Order, 1984, the rule described in this Article is not
applicable to the cases under Hudood law or Criminal cases.

Question No. 44
Define modern device evidence. How it becomes relevant? Or what is the value of modern device
evidence? / What is the evidentiary value of a statement contained in audio cassette? [Dec, 2003]

Answer:
Modern Device evidence
The modern device evidence is that evidence where the cassette of tape record, video movies and
photographs, Photostat copy, CD, VCD, DVD or any other such storage device related with Computers and
other documents produced with the help of Information Technology are produced before the court as a
piece of evidence relating to a fact in issue.

How it becomes relevant?


According to Article 164 of Qanun-e-Shahadat Order, 1984, if such evidence is produced in the court, it shall
not be regarded as a fact but the court shall require further evidence to prove it to be a fact, because it is
possible that such evidence has been planted against the adverse party in a dramatic way.

Question No. 45
Define Tazkia-al-Shuhood? What are principles of purgation of witness in case of Hadd? Q2 (7th May, 2007)

Answer:
TAZKIYAH-TUL-SHAHOOD
Tazkiyah (purgation) is peculiarly a product of Islamic procedure. In its scope and extent it is distinguishable
from the term cross-examination.

Tazkiyah-tul-shahood means the mode of enquiry conducted by the court in order to ascertain whether the
evidence of the witness is acceptable or not and for the purpose of declaring a witness "adil" (bearing good
moral character). In accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah, the
court in tazkiya-tul-shahood satisfies itself whether the witness is truthful and abstains from major sins or
not. The object of Tazkiyah-tul-shahood is that if a false witness makes a statement, it should be thoroughly
investigated so that it may not harm anyone. Tazkiyah-tul-shahood is compulsory in cases of Hadood and
Qisas because doubts cause removal of Hadood/Qisas punishment.

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Question No. 46
What is “Hearsay Evidence”? Is it admissible in evidence? [May, 2004] / Whether the hearsay evidence is
no evidence? State the exceptions, if any and elucidate the same? [Jun, 2009] / What are the senses in
which the term “hearsay evidence” is used? Indicate the rule relating to the admission of “hearsay
evidence”. [Nov, 2005]

Answer:
Hearsay evidence is that evidence which a witness is merely reporting, not what he himself saw or heard,
nor what has come under the immediate observation of his own bodily senses, but what he has learnt
respecting the fact through the medium of a third person. There are two senses in which hearsay evidence is
used:
1) When the assertion is made as evidence of the truth of something asserted.
2) When the assertion is made as evidence of the fact that the assertion was made.

In the first sense, it is not admissible, while in the other sense, it may be admissible.

For any oral evidence to be admissible it is must that it should be direct as laid down under Article 71 of
Qanun-e-Shahadat Order, 1984. Since hearsay evidence is not direct and comes through indirect medium it
is, therefore, not admissible and carries no weight unless it is corroborated with evidence.

Question No. 47
What is difference between: (i). evidence in civil and criminal proceedings (ii). Acquiescence and Waiver
(iii). Estoppel and Res Judicata [Nov, 2008] (iv). Estoppel and Waiver (v). Judgment in rem and Judgment in
pensioner [Nov, 2000]

Answer:
Evidence in Civil and Criminal Proceedings
The rules of evidence are in general the same in civil and criminal proceedings, and bind alike the state and
citizen, prosecutor and accused, plaintiff and defendant, counsel and client. There are, however, some
exceptions e.g., the doctrine of estoppel applies to civil proceedings only. The provisions relating to
confessions, character of persons appearing before the Court, and incompetence of parties as witnesses are
particular to criminal proceedings.

In a civil case, a Judge of fact must find for the party in whose favour there is a preponderance of proof,
though the evidence is not entirely free from doubt. In a criminal case no weight of preponderant evidence
is sufficient short of that which excludes all reasonable doubt. Unbiased moral conviction is not sufficient
foundation for a verdict of guilty unless it is based, on substantial facts leading to no other reasonable
conclusion than that of guilt.

In a criminal trial, the degree of probability of guilt has got to be very much higher – almost amounting to a
certainty – than in a civil proceeding, and if there is the slightest reasonable or probable chance of innocence
of an accused, the benefit of it must be given to the accused.

Acquiescence and waiver


Under certain conditions abstention from speech, or from action may be deemed to constitute a
representation, as much positive language or conduct, for the purpose of estoppel, the terms lying by,
laches, encouragement, standing by, acquiescence, or waiver are often used to denote estoppel. The rule is
based on the principle that where a man has been silent when in conscience he ought to have spoken, he
shall be debarred from speaking when conscience requires him to be silent. However, in case of waiver there
is intentional relinquishment of a known right and a mere gratuitous indulgence shown by not enforcing
strictly one’s legal rights, for even a long time cannot give rise to interference.

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Estoppel and Res Judicata


Estoppel differs from res judicata in the following ways:
1. Estoppel is part of the Law of Evidence and proceeds upon the equitable principle of altered
situation; the doctrine of res judicata belongs to precedence and is based on the principle that there
must be an end to litigation.
2. Estoppel prohibits a party from proving anything which contradicts his previous declarations or acts,
to the prejudice of a party, who, relying upon them, altered his position; res judicata prohibits the
Court from enquiring into a matter already adjudicated.
3. Estoppel shuts the mouth of a party; res judicata ousts the jurisdiction of the Court.

But in the most simple and colloquial way, res judicata precludes a man averring the same thing twice over
in successive litigation, while estoppel prevents him saying one thing at one time and the opposite at the
another.

Estoppel and waiver


Estoppel and Waiver are different:

Estoppel is not a cause of action. It may, if established, assist a plaintiff in enforcing a cause of action by
preventing a defendant from denying the existence of some fact essential to establish the cause of action;
or, in other words, by preventing a defendant from asserting the existence of some fact, the existence of
which would destroy the cause of action.

Waiver, on the other hand, is contractual, and may constitute a cause of action; it is an agreement to release
or not to assert a right. If an agent, with authority to make such an agreement, on behalf of his principal,
agrees to waive his principal’s rights, then, subject to any other question such as consideration, the principal
will be bound, but he will be bound by contract, not by estoppel. There is no such thing as estoppel by
waiver.

Question No. 48
Write short note on the following: (1). Judgment – debtor (2). Judgment in absentia (3). Judgment in
personam (4). Judgment in probate (5). Judgment in rem (6). Onus probandi (7). Identification parade

Answer:
JUDGEMENT-DEBTOR
It means any person against whom a decree has been passed or an order capable of execution has been
made.

JUDGMENT IN ABSENTIA
Judgment in Absentia means announcement of judgment by the court in the absence of accused.

JUDGMENT IN PERSONAM Q2 (25th Nov,, 2006) / Q2 (25th Jul, 2011)


Judgment in personam means announcement of judgment by the court which affects only the two parties in
a case and any other party is not affected.

JUDGMENT IN REM
A judgment in rem binds not only the parties to a case but all other persons. A final judgment, an order or
any decree in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon
or takes away from any person any legal character or which declares any person to be entitled to any such
character or to be entitled to any specified thing, is a judgment in rem.

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JUDGMENT IN PROBATE
Judgment in probate means civil court decree issued against the judgment debtor whose property is under
encumbrance or is a joint holding in the case / decree of the court shall be kept in abeyance till the property
is made free from encumbrance.

ONUS PROBANDI
Onus probandi means burden of proof. According to Article 117 of Qanun-e-Shahadat Order, 1984, it is a
general rule that burden of proof shall lie on that party which has moved the Court to give the decision
regarding establishment of claim or liability on the fact-in-issue.

The best test for ascertaining on whom the burden of proof lies is to consider first which party would
succeed if no evidence were given on either side; and secondly what would be the effect of striking out of
the record the allegations to be proved. The onus lies on whichever party would fail if either of these steps
were pursued.

IDENTIFICATION PARADE
Identification means proof in judicial proceeding that a certain person or document or other thing is what he
or it is alleged to be. An identification parade is a parade in which it is ascertained whether a witness is
speaking the truth. It is held by the police during the investigation of a crime and in it the person accused is
mixed up with others and witnesses are asked to identify the accused.

-------------------THE END-----------------------

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ISLAMIC LAW OF INHERITANCE


CONTENTS
SECTION DESCRIPTION
40 Inheritance / Heritable Property
42 +81(3) Principle of Representation
43 Spec Successionis Renunciation
45 Vested Inheritance
46 Joint Family / Business
47 Homicide
49 Classes of Heirs – Sunni Law
50 True Grandfather – False Grandfather – True Grandmother – False Grandmother
51 + 101 Childress Widow
51 Sharers
52 Doctrine of Increase – Sunni Law
53 Residuaries
54 Doctrine of Return – Sunni Law
55 + 56 Distant Kindred
57 + 61 Rules of Exclusion
68 Successor by Contract
71 + 99 Escheat
72 Step Children
74 Missing Person
73 + 102 Bastard
94 Doctrine of Return – Shia Law
96 Exclusion of Mother from Doctrine of Return – Shia Law
98 Doctrine of Increase – Shia Law
100 Eldest Son
75 + 76 + 77 Class of Heirs – Shia Law
78 Table of Sharers

Question No. 01
Define inheritance under Islamic Law? What are the salient features of inheritance in Islam?[May, 2007] /
Define heritable property. OR How the property of deceased Muslim devolves upon the legal heirs? / How
the estate of a deceased Hanafi Muslim is to be distributed after his death? [Nov, 2002]

Answer:
INHERITANCE AND HERITABLE PROPERTY
According to Section 40 of Mohammadan Law, the Islamic law does not differentiate between movable and
immovable property or between inherited property and self-acquired property. Therefore, when a Muslim
dies, all of the estate and property that he leaves behind is said to be his property and following charges are
made upon that estate or property:

1. Funeral expenses
2. Payment of dues / loans that he had borrowed
3. Disbursement of will made by him from the 1/3 of his property. Not more
4. Payment of Haq Mahar of his wife, if the deceased is a male.

After the payment of all the above expenses and dues, whatever remains is said to be heritable property.
Heritable property shall devolve upon the legal heirs in order of their succession.

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Question No. 02
Explain the transfer by spec successionis renunciation? OR A heir expectant (would be successor)
relinquished its share during the lifetime of its ancestor? Can s/he claim his share after death of his
ancestor?

Answer:
According to Section 43 of Mohammadan Law, if any heir expectant (would be successor) relinquished his
share during the lifetime of his ancestor in favour of another legal heir expectant it may be given to
relinquisher after death of the ancestor if claimed.

Example:
“A” had two children “B” (Son) “C” (Daughter). “C” (Daughter) relinquished her share in favour of her
brother “B” during the lifetime of her father “A”.

After the death of her father, she is entitled to get the due share from the property of her father if claimed
by her. “B” files a civil suit against “C” to exclude her from heirship but the court shall give the property to
the relinquisher on the grounds that at the time of relinquishment she had not acquired the vested
inheritance.

Question No. 03
Define “Vested Inheritance” under the provisions of Islamic law of inheritance? [May, 1999]
Answer:
According to Section 45 of Mohammadan Law, vested inheritance is that share of the inheritance which
would be gained by a heir at the death of the ancestor. No heir expectant can claim inheritance from the
property of ancestor during the lifetime of ancestor. The heir expectant shall acquire the vested inheritance
in the event of death of ancestor.

Question No. 04
Explain the joint family and business?
Answer:
According to Section 46 of Mohammadan Law, the joint family is recognized in Hindu Law and not in
Mohammadan Law. But however, there is a custom amongst some Muslim families of joint family and their
property is managed by the head of their family. In case, the dispute arises between family members on
partition of property, each family member is entitled to his due share in the said property.

If any business is managed by head of family, every member of the joint family shall be responsible to pay
the loss sustained in the business according to share. In case of profit, every family member shall be entitled
to get the due share from the profit.

Question No. 05
Explain homicide.
Answer:
According to Section 47 of Mohammadan Law, if any heir expectant causes death of an ancestor either by
mistake, negligence, accident or intentionally he is excluded from inheritance. This is recognized in Sunni
Law. But in Shia Law, if the death is caused intentionally, he stands excluded from inheritance and not in
other case.

Question No. 06

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Give causes of an Absolute exclusion from inheritance. [May, 2000] / What are the grounds of exclusion
from inheritance? Describe the same under the Sunni as well as Shia law? [Jun, 2009] / What are the
impediments to inheritance in Islamic Law? [May, 2004)

Answer:
There are four impediments to inheritance or grounds of exclusion from inheritance in Islamic Law which
exclude from inheritance and these are as follows:
1. Homicide
According to Section 47 of Mohammadan Law, if any heir expectant causes death of an ancestor either
by mistake, negligence, accident or intentionally he is excluded from inheritance. This is recognized in
Sunni Law. But in Shia Law, if the death is caused intentionally, he stands excluded from inheritance and
not in other case.
2. Slavery
Slavery as an impediment or ground for exclusion from inheritance has been removed with the
abolishing of slavery under the enactment of Act V of 1843.
3. Difference of religion,
According to Islamic Law, a Muslim cannot inherit from a Non-Muslim neither can a Non-Muslim inherit
from a Muslim. However, the difference of religion as an impediment or ground for exclusion from
inheritance has been removed under the provisions of Act XXI of 1850 which abolished so much of any
law or usage as affected any right of inheritance of any person by reason of his renouncing his religion.
4. Difference of allegiance
The bar of difference of allegiance disappeared with the subversion of the Muslim supremacy.

Question No. 07
How many classes of heirs are there under Hanafi law of inheritance? [ May, 1999) / Nov, 2002 / May,
2000 / Dec, 2003] / What are classes of heirs of deceased for inheritance of his property under Hanfi Fiqah
of Islamic Law? Discuss. [Feb, 2010]

Answer:
According to Section 49 of Mohammadan Law, there are three (3) classes of heirs in Hanafi Law (Sunni Law)
which are explained as under:

1st Class of Heirs (Sharers)


They are sharers who take the prescribed share as shown in the table of sharers.

2nd Class of Heirs (Residuaries)


These heirs are called Residuaries and get the property after allotment of shares to the heirs of 1st class.

3rd Class of Heirs (Distant Kindred)


These are the blood relatives and are called distant kindred of the deceased viz. from paternal side and
maternal side. They get the share from the property of deceased where there is no heir of 2nd class.

Question No. 08
What are the two main classes of heirs, according to the Shia Law of Inheritance? [Jul, 2011 / Nov, 2006 /
May, 2000 / Dec, 2003] / Discuss division of heirs under Shia Law of Inheritance and the class of heirs by
consanguinity. [Feb, 2010]

Answer:
Sections 75 to 77 of Mohammadan Law deal with division of heirs and the classes of heirs under Shia Law of
Inheritance. According to Section 75 of Mohammadan Law following are the two main classes of heirs under
Shia Law of Inheritance:

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1st Class Heirs (Sharers)


The blood relatives or heirs by consanguinity; these are the heirs of 1st class who get the prescribed share
from the property of the deceased. According to Section 76(1) of Mohammadan Law, these heirs of 1 st class
are further divided into three classes of heirs, which are as follows:
1. 1st Class
a. Parents
b. Children and descendants of children how low so ever
2. 2nd Class:
a. Grandparents (true or false)
b. Siblings and their descendents how low so ever
3. 3rd Class:
a. Paternal uncles and aunts, of the deceased and of his parents and grandparents how high so
ever and their descendants
b. Maternal uncles and aunts, of the deceased and of his parents and grandparents how high
so ever and their descendants

According to Section 76(2) of Mohammadan Law, 1st class of heirs excludes the 2nd class and 2nd class
excludes the 3rd class from inheritance. However, each class succeeds all together; but near relative excludes
the remote. E.g., if the deceased has children, the descendants of his children shall be excluded, if the
deceased has siblings, the descendants of the siblings shall be excluded and likewise.

2nd Class Heirs (Residuaries)


The husband and wife are included in the 2nd Class of heirs and these are called Residuaries. According to
Section 77 of Mohammadan Law, husband inherits ¼ if there is any lineal descendant or ½ when there is no
any lineal descendant. Wife gets 1/8 if there is any lineal descendant or ¼ when there is no any lineal
descendant as mentioned in the table of sharers under Section 78. If the wife is childless widow, she does
not inherit from the lands of her spouse, but from the trees, buildings and other moveable property and
debts of her spouse.

Question No. 09
How and under what circumstances a childless widow inherits from the estate of her husband under the
Shia law? [Jun, 2009] / What is the share of a childless widow in a estate of her late husband? [Nov, 2000 /
May, 2002]

Answer:
According to Section 51 of Mohammadan Law and Table of Sharers given under Hanafi Law of
Inheritance, if there are any Residuaries, a childless widow takes her share at 1/8 from the estate of
her late husband but when there is no any Residuaries, then she takes full share of ¼ from the
estate of her late husband and the residue is distributed among the distant kindred. She does not
inherit all the property of her husband through the doctrine of return. However, if there are no any
distant kindred also, then she may take the whole estate of her late husband.

According to Section 101 of Mohammadan Law, a childless widow under Shia law does not inherit
from her husband’s lands. However she gets her share of ¼ from the value of trees and buildings
standing on such land, as well as from his moveable property and debts due to him though they
may be secured by a usufructuary mortgage or otherwise. Moreover, if there is no any other heir
then as per Shia Law a childless widow can also inherit all the property of her husband through the
doctrine of return.

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Question No. 10
Does an illegitimate child inherit from his parents under Sunni and Shia law of inheritance? [May, 2001) /
May, 2002]

Answer:
According to Hanafi Law of Inheritance:
According to Section 73 of Mohammadan Law, an illegitimate child inherits from his/her mother and
mother’s relations and his/her mother and mother’s relations inherit from such illegitimate child. However,
neither he inherits from his putative father or his relations, nor they inherit from him.

Mother’s relations here mean her relations that existed before her subsequent marriage and not relations by
virtue of her subsequent marriage.

According to Shia Law of Inheritance:


According to Section 102 of Mohammadan Law, an illegitimate child is not entitled to any inheritance under
Shia Law of Inheritance. S/he does not inherit even from his / her mother or mother’s relations. Neither
his/her mother nor mother’s relations inherit from him.

Question No. 11
Who are the sharers under Hanafi Muslim law of inheritance? [May, 2001 / Nov, 2004] / Specify
the sharers with their shares as per Hanafi law of inheritance. [Dec, 2003] / Enumerate the heirs
whose shares have been fixed by the holy Quran. [Nov, 2005] / Define as to how the property of
the Sunni deceased will be distributed after payment of funeral expenses debts among the
Qurani heirs? [Jul, 2011 / Nov,, 2006]

Answer:
According to Section 40 of Mohammadan Law, the Islamic law does not differentiate between movable and
immovable property or between inherited property and self-acquired property. Therefore, when a Muslim
dies, all of the estate and property that he leaves behind is said to be his property and following charges are
made upon that estate or property: (1). Funeral expenses (2). Payment of dues / loans that he had borrowed
(3). Disbursement of will made by him from the 1/3 of his property. Not more (4). Payment of Haq Mahar of
his wife, if the deceased is a male.

After the payment of all the above expenses and dues, whatever remains is said to be heritable property.
Heritable property shall devolve upon the legal heirs in order of their succession. The first class of heirs on
which the heritable property devolves is called Sharers and the shares of heirs of this class have been fixed
by the Holy Quran. They can never be deprived of their shares in any form. Neither can their shares be
increased or decreased in any way. The heirs of this class and their shares are as follows:

Sr.# Share Sharer Condition


1 1/6 Father If there is any child or child of a son
2 1/6 True Grandfather If father is not alive
½ Husband If there is neither child nor any child of a son.
3
¼ Husband If there is any child or child of a son
¼ Wife If there is neither child nor any child of a son.
4
1/8 Wife / Wives If there is any child or child of a son
If there is any child or child of a son OR any kind of
1/6 Mother
two or more siblings.
5
If there is neither any child nor child of a son and only
1/3 Mother
one sibling.
6 1/6 True Grandmother/s If mother is not alive

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½ Daughter If she is alone and does not have any brother.


7 If daughters are more than one and they do not have
2/3 Daughters
any brother.
½ Son’s daughter If there is neither any child nor any son’s son.
8
2/3 Son’s daughters If there is neither any child nor son’s son
If there is neither child or child of a son nor father or
1/3 Uterine Brothers/Sisters true grandfather; and Uterine Brothers/Sisters are
9/10 more than one.
If there is neither child or child of a son nor father or
1/6 Uterine Brother / Sister
true grandfather; and Uterine Brother/Sister is alone.
If there is neither father or true grandfather, nor any
½ Full Sister child or child of a son; and she is alone i.e., does not
have any full brother
11
If there is neither father or true grandfather, nor any
2/3 Full Sisters child or child of a son; and they are more than one
but do not have any full brother either
If there is neither father or true grandfather, nor any
child or child of a son; and she is alone i.e., she does
½ Consanguine Sister
not have any full brother/sister or consanguine
brother.
12
If there is neither father or true grandfather, nor any
child or child of a son; and they are more than one
2/3 Consanguine Sisters
but do not have any full brother/sister or
consanguine brother either.

Question No. 12
What is difference between sharer and residuary? [Nov, 2008]

Answer:
Difference No. Sharers Residuaries
1. They are the First Class of heirs They are the Second Class of heirs
2. They are called Zul-Farooz in Arabic They are called Aasba in Arabic
2. They are entitled to a predetermined or They have no such prescribed share
prescribed share from the inheritance of in the inheritance of the decased.
the deceased
3. Their shares have been determined by Their shares have not determined by
Holy Quran Holy Quran
4. They take their share from the They take share of inheritance in the
inheritance in all events and their shares absence of the 1st Class heirs or
cannot be tampered with. when there is any residue left over
only.
5. They may take residue also if there is any They take only the residue left after
left after distribution of inheritance the distribution of shares.

Question No. 13

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Define uterine brother & uterine sister. What are the shares of uterine brother and uterine sister under
Hanafi law of inheritance? [ May, 2007]

Answer:
A Uterine Brother or Uterine Sister is such brother or sister of a person who was born of the same mother
but by different fathers. It means uterine brothers or uterine sisters are such siblings who have same mother
but different fathers.

According to Hanafi law of inheritance, uterine brothers and uterine sisters are sharers. It means they are
heirs of 1st class and come at 9th and 10th number in order of succession in the table of sharers and inherit
from the heritable property of the deceased in the following manner:

If there is neither a child, child of a son nor father or true grandfather of the deceased and the uterine
brothers or uterine sisters of the deceased are more than one, then their share is 1/3

If there is neither a child, child of a son nor father or true grandfather of the deceased and the uterine
brother or uterine sister is one, then his / her share is 1/6.

Question No. 14
Define the terms CONSANGUINE BROTHER and CONSANGUINE SISTER in Sunni Law and their share? [Jul,
2011 / Nov,, 2006]

Answer:
A Consanguine Brother or Consanguine Sister is such brother or sister of a person who was born of the same
father but by different mothers. It means Consanguine brothers or Consanguine sisters are such siblings who
have same father but different mothers.

According to Hanafi law of inheritance, consanguine sister is sharer. It means she is heir of 1st class and
comes at 12th number in order of succession in table of sharers and inherits from the heritable property of
the deceased in the following manner:

If there is neither father or true grandfather, nor any child or child of a son; and she is alone i.e., she does
not have any full brother/sister or consanguine brother, her share is ½

If there is neither father or true grandfather, nor any child or child of a son; and they are more than one but
do not have any full brother/sister or consanguine brother either, their share is 2/3

However if there is a full sister, then the share of consanguine sister/s is 1/6. And if there are more than one
full sisters and there is no brother then there is no share of the consanguine sister/s.

Moreover, if there is a consanguine brother, then consanguine sister/s become residuary and takes
residuary share with her brother, brother taking double of the portion.

Question No. 15
Write a detailed note on successors unrelated in blood, under Sunni law of inheritance. [Nov,, 1999) /
May, 2002]

Answer:
According to Section 68 of Mohammadan Law, when a Muslim dies and there are no sharers, Residuaries or
even distant kindred, the property of the deceased devolves upon such a person who has acquired the right
of succession through a contract with the deceased in consideration of an undertaking given by him to pay

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any fine or ransom to which the deceased may become liable. Such successor is called “Successor by
Contract.

Question No. 16
How and under what circumstances a divorced wife can inherit from the estate of her husband? [Nov,,
2008]

Answer:
According to Mohammadan Law, the divorced wife can inherit from the estate of her husband if her
husband dies during the time period of her iddat.

Question No. 17
In which situation a grandfather looses his share in the estate of his grandson? [Oct,, 2001]

Answer:
If there is father of the deceased in between, the grandfather looses share in the estate of his grandson.

Question No. 18
What are the Doctrine of Increase and Doctrine of Return? / Write short note on Doctrine of return and
increase [May, 2003 / Nov,, 2002 / May, 2001] / What is doctrine of return and the increase under Shia
law of inheritance? [May, 2001]

Answer:
Doctrine of Increase as per Hanafi Law of Inheritance
According to Section 52 of Mohammadan Law, under the Hanafi Law, the Doctrine of Increase states that
total of shares assigned must equal to unity and should not exceed it. Therefore when it exceeds unity, the
shares are proportionately decreased. It is done by reducing the fractions to a common denominator and
increasing the denominator so as to make it equal to the sum of the numerator. In simpler words, doctrine
of increase is applied to distribute the shares in such way that it exhausts the property. This is called
Doctrine of Increase or Aul because we increase the denominator to make it equal to the sum of numerator.
E. g., If Husband = ¼, Two Daughters= 2/3, Father = 1/6, Mother= 1/6

First step: Decrease the shares proportionately by reducing the fractions to a common denominator. Since
common denominator is 12, therefore:
Since 15/12 is not equal to unity. Therefore second step is to increase the denominator so as to make it
equal to the sum of the numerator:

1st Step 2nd Step


Husband = 1/4 = 3/12 = 3/15
2 Daughters = 2/3 = 8/12 = 8/15
Father = 1/6 = 2/12 = 2/15
Mother = 1/6 = 2/12 = 2/15
= 15/12 = 15/15 = 1

Doctrine of Increase as per Shia Law of Inheritance


According to Section 98 of Mohammadan Law, the Doctrine of Increase is not used in the Shia Law instead
the exceeding fraction is deducted from the share of daughter/daughters or full or consanguine sister/s

E.g.,If Husband= ¼, Two Daughters= 2/3, Father= 1/6, Mother= 1/6

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 First step: Decrease the shares proportionately by reducing the fractions to a common denominator.
Since common denominator is 12, therefore:
 Since 15/12 is not equal to unity and the excess over unity is 3/12, so as per Shia law it is to be deducted
from the share of daughters:

1st Step 2nd Step


Husband = 1/4 = 3/12 = 3/12
2 Daughters = 2/3 = 8/12 = (8/12-3/12) = 5/12 (Each 3/24)
Father = 1/6 = 2/12 = 2/12
Mother = 1/6 = 2/12 = 2/12
= 15/12 = 12/12 = 1

Doctrine of Return as per Hanafi Law of Inheritance


According to Section 54 of Mohammadan Law, Doctrine of Return is applied when there is residue left after
satisfying the claims of Sharers and there are no Residuary to take the residue. In such situations the residue
is again shared between the Sharers in proportion of their shares. Since the residue in such situations is
reverted or returned to the sharers, therefore it is called Doctrine of Return or Radd. However it must be
noted that spouse of the deceased never benefits by the Doctrine of Return if there is any other heir.
Neither shall any widow benefit by the Doctrine of Return when there is a daughter of the deceased.

It is computed by reducing the shares of Residuaries to a common denominator and then decreasing the
denominator of those sharers so as to make it equal to the sum of the numerators:

Here is an example:
If Wife = 1/8, Mother = 1/6, Daughter = 1/2
Residue in this case cannot be reverted to the wife, since there are other heirs, therefore we shall apply
Doctrine of Return to the shares of other Residuaries i.e, Mother and Daughter.

 First, we shall reduce the shares of Residuaries only to a common denominator, which is 6
 Second, decrease the denominator of these shares so as to make it equal to the sum of the numerators:
 Third multiply with the residue, which is 7/8:
 Fourth, to gain the equity, reduce the shares to a common denominator:

1st Step 2nd Step 3rd Step 4th Step


Wife = 1/8 = 1/8 = 1/8 = 1/8 = 4/32
Mother = 1/6 = 1/6 = 1/4 = 1/4 x (7/8) 7/32 = 7/32
Daughter = 1/2 = 3/6 = 3/4 = 3/4 x (7/8) 21/32 = 21/32
= 32/32

Doctrine of Return as per Shia Law of Inheritance


According to Section 94 of Mohammadan Law, under Shia Law residue is reverted to the sharers if there is
no residuary in the class to which the sharers belong.
However, according to Section 95 of Mohammadan Law, the residue is not revered to the husband or wife
when there is any other heir.
Likewise according to Section 96 of Mohammadan Law, mother is excluded from Return when the deceased
has left besides mother, father, and (i). one daughter (ii). Two or more full or consanguine brothers (ii). One
such brother plus two such sisters or (iv). Four such sisters.
Moreover, according to Section 96 of Mohammadan Law, uterine brothers and sisters are also excluded
from Return when there are any full sisters.

Here are examples:

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(a). If Husband = 1/4, Father = 1/6, Daughter = 1/2


Residue in this case cannot be revered to the husband, since there are other heirs, therefore we shall apply
Doctrine of Return to the shares of other Residuaries i.e, Father and Daughter.

 First, we shall reduce the shares of Residuaries only to a common denominator, which is 6
 Second, decrease the denominator of these shares so as to make it equal to the sum of the numerators:
 Third multiply with the residue, which is 3/4:
 Fourth, to gain the equity, reduce the shares to a common denominator:

1st 2nd 3rd Step 4th Step


Step Step
Husband = 1/4 = ¼ = ¼ = ¼ = 4/16
Father = 1/6 = 1/6 = 1/4 = 1/4 x (3/4) 3/16 = 3/16
Daughter = 1/2 = 3/6 = 3/4 = 3/4 x (3/4) 9/16 = 9/16
= 16/16

(b). If Mother = 1/6, Father = 1/6, Daughter = 1/2, Two full brothers = -
Residue in this case cannot be revered to the mother, since there are 2 full brothers, who are also excluded
because they are from second class, therefore we shall apply Doctrine of Return to the shares of other
Residuaries i.e, Father and Daughter.

 First, we shall reduce the shares of Residuaries only to a common denominator, which is 6
 Second, decrease the denominator of these shares so as to make it equal to the sum of the numerators:
 Third multiply with the residue, which is 5/6:
 Fourth, to gain the equity, reduce the shares to a common denominator:

1st 2nd 3rd Step 4th Step


Step Step
Mother = 1/6 = 1/6 = 1/6 = 1/6 = 4/24
Father = 1/6 = 1/6 = 1/4 = 1/4 x (5/6) 5/24 = 5/24
Daughter = 1/2 = 3/6 = 3/4 = 3/4 x (5/6) 15/24 = 15/24
= 24/24

(c). If Uterine Brother = 1/6


Full Sister = 1/2 (as sharer) + 1/3 (By return) = 5/6

Residue in this case cannot be revered to the Uterine Brother, since there is Full Sister, therefore we shall
apply Doctrine of Return to the share of Full Sister only.

 First, we shall reduce the share of Full Sister only to a common denominator, which is 6
 Second, add the residue, which is 2/6 to the share of Full Sister

Share 1st Step 2nd Step


Uterine = 1/6 = 1/6 = 1/6
Brother
Full Sister = ½ = 3/6 = (3/6)+(2/6) = 5/6
6/6

(d). If Uterine Brother & Uterine Sister = 1/3


Full Sister = 1/2

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Residue in this case residue cannot be reverted to the Uterine Brother, since there is Full Sister, therefore we
shall apply Doctrine of Return to the share of Full Sister only.

 First, we shall reduce the shares to a common denominator, which is 6


 Second, add the residue, which is 1/6 to the share of Full Sister

Share 1st Step 2nd Step


Uterine = 1/3 = 2/6 = 2/6
Brother
Full Sister = ½ = 3/6 = (3/6)+(1/6) = 4/6
6/6

(e). If Wife = 1/4


Uterine Sister = 1/6
Full Sister = 1/2

Residue in this case cannot be reverted to the Wife because there are other heirs, and neither to Uterine
Sister because there is Full Sister, therefore we shall apply Doctrine of Return to the share of Full Sister only.

 First, we shall reduce the shares to a common denominator, which is 12


 Second, add the residue, which is 1/12 to the share of Full Sister

Share 1st Step 2nd Step


Wife = 1/4 = 3/12 = 3/12
Uterine Sister = 1/6 = 2/12 = 2/12
Full Sister = 1/2 = 6/12 = (6/12+(1/12) = 7/12
12/12

Question No. 19
In what case the mother is excluded from participating in the return under the Shia laws. [Nov, 2005)
Answer:
According to Section 96 of Mohammadan Law, mother is excluded from Return under the Shia Laws when
the deceased has left besides mother, father, and (i). one daughter (ii). Two or more full or consanguine
brothers (ii). One such brother plus two such sisters or (iv). Four such sisters.

For Example: If Mother = 1/6


Father = 1/6
Daughter = 1/2
2 full brothers =-

Residue in this case cannot be revered to the mother, since there are 2 full brothers, who are also excluded
because they are from second class, therefore we shall apply Doctrine of Return to the shares of other
Residuaries i.e, Father and Daughter.

 First, we shall reduce the shares of Residuaries only to a common denominator, which is 6
 Second, decrease the denominator of these shares so as to make it equal to the sum of the numerators:
 Third multiply with the residue, which is 5/6:

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 Fourth, to gain the equity, reduce the shares to a common denominator:

1st 2nd 3rd Step 4th Step


Step Step
Mother = 1/6 = 1/6 = 1/6 = 1/6 = 4/24
Father = 1/6 = 1/6 = 1/4 = 1/4 x (5/6) 5/24 = 5/24
Daughter = 1/2 = 3/6 = 3/4 = 3/4 x (5/6) 15/24 = 15/24
= 24/24

Question No. 20
Define / write Short Notes on the followings:

Answer:
1. SHARERS [May, 2004 / Nov, 2005)
According to Section 49 of Mohammadan Law, Sharers are the first class of heirs of a deceased Muslim. It
means sharers are those of the relatives of a deceased Muslim who are entitled to a pre-determined /
prescribed share from the inheritance of the deceased.

According to Section 51 of Mohammadan Law, After the payment of funeral expenses, debts, and legacies,
the first step in the distribution of the estate or property of a deceased Muslim is to determine which of the
surviving relatives belong to the class of sharers and which again of these are entitled to the share of the
inheritance and, after this is done, to proceed to assign their respective shares to such of the sharers as are,
under the circumstances of the case, entitled to succeed to a share.

2. RESIDUARIES [May, 2004 / Nov, 2005)


According to Section 49 of Mohammadan Law, Residuaries are the second class of heirs of a deceased
Muslim. It means Residuaries are those of the relatives of a deceased Muslim who are not entitled to a pre-
determined / prescribed share from the inheritance of the deceased but take residue left over after giving
shares to the entitled sharers.

According to Section 53 of Mohammadan Law, If there are no sharers or if there are sharers, but there is
residue left after satisfying their claims, the whole inheritance or the residue, as the case may be, devolves
upon Residuaries in the order of their succession.

3. DISTANT KINDRED [May, 2004 / Nov,, 2002 / May, 1999]


According to Section 55 of Mohammadan Law, Distant Kindred are those heirs who partake of the
inheritance when there are neither Sharers nor Residuaries. Even if there is a spouse of the deceased, the
distant kindred will inherit the remaining after the spouse of the deceased has taken her / his full share.

According to Section 56 there are four classes of distant kindred given below in order of their priority:
1) Descendants of the deceased other than the sharers and Residuaries
a. Daughter’s children and their descendants
b. Children of son’s daughters h. l. s and their descendants.
2) Ascendants of the deceased other than the Sharers and Residuaries.
a. False grandfathers h. h.s
b. False grandmothers h. h. s
3) Descendants of parents other than sharers and Residuaries.
a. Full brothers’ daughters and their descendants
b. Consanguine brothers’ daughters and their descendants
c. Uterine brother’s children and their descendants
d. Daughters of full brothers’ sons h. l. s. and their descendants

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e. Daughters of consanguine brothers’ sons h. l. s and their descendants


f. Full / Consanguine / Uterine Sisters’ children and their descendants
4) Descendants of ascendants howhighsoever other than Residuaries.
a. Full paternal uncles’ daughters and their descendants
b. Consanguine paternal uncles’ daughters and their descendants
c. Uterine paternal uncles and their children and their descendants
d. Daughters of full paternal uncle’s sons h. l. s. and their descendants
e. Daughters of consanguine paternal uncles’ sons h. l. s. and their descendants
f. Full / Consanguine / Uterine Paternal aunts and their children and their descendants
g. Maternal uncles and aunts and their children and their descendants
h. Descendants of remoter false or true ancestors h. h. s

4. PRINCIPLE OF REPRESENTATION [May, 2003]


According to Section 42 of Mohammadan Law, if the deceased ancestor leaves behind son / daughter and
the children of his predeceased son / daughter, the grand children are not entitled to inherit the property
and they are excluded by their uncles and aunts.

According to Section 81(3) of Mohammadan Law, if both sons predeceased the propositus who dies leaving
three grandsons by one son and two by the other, then all the grandsons are heirs.

Example (1)
“A” had two sons “B” and “C”. “B” dies during the lifetime of “A” leaving behind “D” son (grandson of “A”).
Now “A” dies. The entire property of “A” shall go to “C” and the grandson “D” stands excluded by “C”. This is
also recognized in Shia Law.

In the days of Govt. of General Muhammad Ayub Khan, this Section has been amended under section 4 of
Family Law Ordinance, 1961 whereby the grandchildren have been made entitled to inherit / get the
property of their grandfather along with their uncles and aunts.

Example (2)
“A” had two sons, “B” and “C”. Both die during the lifetime of the father “A”. “B” left behind one son “D”
and “C” left behind “X” and “Y”. After the death of “A” all the three (3) grandsons will get the property of
their grandfather by way of inheritance in equal share i.e., one third each of the three. This is recognized in
Sunni Law but in Shia Law, the property of “A” firstly shall be given to the both deceased sons of “A” and
after that the property of deceased sons shall be given to their sons as under.

Example (3)
“A” had two sons “B” and “C” and had 300 acres of agriculture land. Both the sons die during the lifetime of
“A”. “B” left behind one son “D” and “C” left behind two sons “X” and “Y”.

In this case, after the death of “A”, the property of 300 acres land shall firstly be divided amongst the
deceased sons “B” and “C” in equal share that is 150 acres to each. After that the property of “D” and “C”
shall be given to their sons by allotting 150 acres to “D” son of “B” and 150 acres to “X” and “Y” in equal
share that is 75 acres to each.

5. RULES OF EXCLUSION [Nov,, 2002]


According to Section 57 of Mohammadan Law, the determination of order of succession for the first class of
distant kindred is made by the application of Rules of Exclusion. These rules of exclusion are:
1) The nearer in degree of relation excludes the remoter.
2) When the heirs of 1st class of Distant Kindred are of the same degree of relationship, the
descendants of Sharers and Residuaries take priority to those of the Distant Kindred.

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According to Section 61 of Mohammadan Law, the determination of order of succession for the third class of
Distant Kindred is made by the application of Rules of Exclusion. These rules of exclusion are:
1) The nearer in degree of relation excludes the remoter.
2) The descendants of Residuaries take priority to those of the Distant Kindred.
3) The children of full brothers exclude those of consanguine brothers and sisters.

6. HEIRS BY CONSANGUINITY [Nov,, 2002]


According to Section 75 of Mohammadan Law, heirs of a Shia deceased are divided into two main classes
under Shia Law of Inheritance. The first class is called the heirs by consanguinity or blood relatives and
second class is called heirs by marriage. The brief description of the heirs by consanguinity follows:

The blood relatives or heirs by consanguinity are the heirs of 1st class who get the prescribed share from the
property of the deceased. According to Section 76(1) of Mohammadan Law, these heirs by consanguinity are
further divided into three classes of heirs, which are as follows:

I. 1st Class
a. Parents
b. Children and descendants of children how low so ever
II. 2nd Class:
a. Grandparents (true or false)
b. Siblings and their descendents how low so ever
III. 3rd Class:
a. Paternal uncles and aunts, of the deceased and of his parents and grandparents how high so
ever and their descendants
b. Maternal uncles and aunts, of the deceased and of his parents and grandparents how high
so ever and their descendants

According to Section 76(2) of Mohammadan Law, 1st class of heirs by consanguinity excludes the 2nd class of
heirs by consanguinity and 2nd class of heirs by consanguinity excludes the 3rd class of heirs by consanguinity
from inheritance. However, each class succeeds all together; but near relative excludes the remote. E.g., if
the deceased has children, the descendants of his children shall be excluded, if the deceased has siblings, the
descendants of the siblings shall be excluded and likewise.

7. HERITABLE PROPERTY [May, 2003]


According to Section 40 of Mohammadan Law, the Islamic law does not differentiate between movable and
immovable property or between inherited property and self-acquired property. Therefore, when a Muslim
dies, all of the estate and property that he leaves behind is said to be his property and following charges are
made upon that estate or property:

1. Funeral expenses
2. Payment of dues / loans that he had borrowed
3. Disbursement of will made by him from the 1/3 of his property. Not more
4. Payment of Haq Mahar of his wife, if the deceased is a male.

After the payment of all the above expenses and dues, whatever remains is said to be heritable property.
Heritable property shall devolve upon the legal heirs in order of their succession.

8. ESCHEAT [May, 2003]


According to Section 71 of Mohammadan Law, if any deceased Sunni Muslim does not have any relatives, his
property shall revert to Government in Baitul Mal. This is called Escheat. This is also true for a Shia Muslim.

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According to Section 99 of Mohammadan Law, if any deceased Shia Muslim does not have any relatives, his
property shall revert to the Government.

9. BASTARD/ ILLEGITIMATE CHILD [Nov,, 2002]


According to Hanafi Law of Inheritance:
According to Section 73 of Mohammadan Law, an illegitimate child inherits from his/her mother and
mother’s relatives and his/her mother and mother’s relatives inherit from such illegitimate child. However,
neither he inherits from his putative father or his relatives, nor they inherit from him.

Mother’s relatives here mean her relatives that existed before her subsequent marriage and not relaties by
virtue of her subsequent marriage.

According to Shia Law of Inheritance:


According to Section 102 of Mohammadan Law, an illegitimate child is not entitled to any inheritance under
Shia Law of Inheritance. S/he does not inherit even from his / her mother or mother’s relatives. Neither
his/her mother nor mother’s relatives inherit from him.

10. CHILDLESS WIDOW / ISSUELESS WIDOW:


According to Section 101 of Mohammadan Law, a childless widow under Shia law does not inherit from her
husband’s lands. However she gets her share of ¼ from the value of trees and buildings standing on such
land, as well as from his moveable property and debts due to him though they may be secured by a
usufructuary mortgage or otherwise. Moreover, if there is no any other heir then as per Shia Law a childless
can also inherit all the property of her husband through the doctrine of return.

According to Section 51 of Mohammadan Law and Table of Sharers given under Hanafi Law of Inheritance, if
there are any Residuaries, a childless widow takes her share at 1/8 from the estate of her late husband but
when there is no any Residuaries, then she takes full share of ¼ from the estate of her late husband and the
residue is distributed among the distant kindred. She does not inherit all the property of her husband
through the doctrine of return. However, if there are no any distant kindred also, then she may take the
whole estate of her late husband.

11. STEP CHILDREN


According to Section 72 of Mohammadan Law, the step children are not entitled to inherit property left by
their stranger parents and vice versa.

12. TRUE GRANDFATHER [May, 2003]


According to Section 50 of Mohammadan Law, the True Grandfather means a male adult ancestor between
whom and the deceased no female intervenes.
Example: Father’s father, father’s father’s father, how high so ever it may be.

13. FALSE GRANDFATHER [May, 2003]


According to Section 50 of Mohammadan Law, the false grandfather means a male ancestor between whom
and the deceased a female intervenes.
Example: Mother’s father. Mother’s mother’s father. Mother’s father’s father. Howsoever high it may be.

14. TRUE GRAND MOTHER:


According to Section 50 of Mohammadan Law, true grandmother means a female ancestor between whom
and the deceased no false grandfather intervenes.
Example: Father’s mother, father’s father’s mother. Father’s mother’s mother. Howsoever high it may be.

15. FALSE GRANDMOTEHR

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According to Section 50 of Mohammadan Law, false grandmother means a female ancestor between whom
and the deceased false grandfather intervenes.
Example: Mother’s mother, mother’s father’s mother, howsoever high it may be.

16. ELDEST SON


According to Section 100 of Mohammadan Law, eldest son of a deceased father has been exclusively entitled
to own the personal dresses of the father, his Quran, Sword and Ring if these are in the property besides
other things left by the deceased father. However, the entitlement of the eldest son to these things is
subject to his being sane and of sound mind.

17. MISSING PERSONS


According to Section 74 of Mohammadan Law, if it is not ascertained whether a Muslim person is dead or
alive and there is no news of his whereabouts for seven years from any quarters, he is called a Missing
Person (Mafqood). If anyone claims that such a person is alive he would have to prove it himself.

The wife of such a person is allowed to remarry after ascertaining that his whereabouts are completely
unknown. If that person ever returns he is not entitled to any inheritance and neither any other inherits
from him.

Question No. 21
Solve the Following Problems of inheritance:

a) What share a father will get in the estate of his deceased son who has only one daughter? [Oct, 2001]

Answer:
The share of father in this case as per Table of Sharer = 1/6.
The share of daughter in this case as per Table of Sharer = 1/2

For the residue in this case we apply Doctrine of Return to the share of father because there is no child or
child of son how low so ever. Daughter takes residue only with the son and in this case, there is no son of the
deceased. Therefore:
 First, we shall reduce the shares to a common denominator, which is 6
 Second, add the residue which is 2/6 to the share of father

1st Step 2nd Step


Daughter = 1/2 = 3/6 = 3/6 = 1/2
Father = 1/6 = 1/6 = 1/6 + 2/6 3/6 = 1/2
= 1

b) A man dies leaving behind father, mother and two daughters. Find out the share of each, if any, under
Hanafi Law. [Feb, 2010]

Answer:
The share of father in this case as per Table of Sharer is = 1/6 = 1/6
The share of mother in this case as per Table of Sharer is = 1/6 = 1/6
The share of two daughters in this case as per Table of Sharer = 2/3 = 4/6

c) A Sunni Muslim is survived by his mother, two wives, one son, two daughters and one son of a pre-
deceased son. Distribute the property of the deceased among his said legal heirs. [May, 2003]

Answer:

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The share of 2 wives in this case = 1/8


The share of mother in this case = 1/6
The residuary share of one son in this case = 2/3 of the residue
The residuary share of 2 daughters in this case = 1/3 of the residue
The son of a predeceased son is not an heir = -

Residue in this case cannot be revered to the wife, since there are other heirs, therefore we shall apply
Doctrine of Return to the shares of other Residuaries i.e, Mother, Son and 2 Daughters.
 First, we shall reduce the shares of Residuaries only to a common denominator, which is 6
 Second, decrease the denominator of these shares so as to make it equal to the sum of the numerators:
 Third multiply with the residue, which is 7/8:
 Fourth, to gain the equity, reduce the shares to a common denominator:

1st Step 2nd Step 3rd Step 4th Step


2 Wives = 1/8 = 1/8 = 1/8 = 1/8 = 7/56
Mother = 1/6 = 1/6 = 1/7 = 1/7 x 7/56 = 7/56
(7/8)
Son = 2/3 = 4/6 = 4/7 = 4/7 x 28/56 = 28/56
(7/8)
2 daughters = 1/3 = 2/6 = 2/7 2/7 x 14/56 14/56
(7/8)
= 56/56=1

d) A Sunni Muslim dies leaving a son who has become a Christian, a daughter and a widow. How would
you distribute his estate among them? [Nov,, 2005]

Answer:
The share of wife in this case = 1/8 = 1/8
The share of daughters in this case = 1/2 = 4/8 as a sharer and 3/8 as residue = 7/8
The share of son in this case = - because of his changing the religion.

Residue in this case cannot be revered to the wife, since there are other heirs, therefore we shall apply
Doctrine of Return to the shares of other Residuaries i.e, Daughter.
 First, we shall reduce the shares to a common denominator, which is 8
 Second, add the residue which is 3/8 to the share of daughter. It means

1st Step 2nd Step


Wife = 1/8 = 1/8 = 1/8 =
Daughter = 1/2 = 4/8 = 4/8+3/8 7/8 =
8/8 = 1

e) The deceased has left alive his mother, one widow, two sons, and one daughter as his surviving legal
heirs. He was Sunni Muslim, distribute his estate amongst the above legal heirs. [Nov, 2002]

Answer:
The share of wife = 1/8

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JUDICIAL GROUP: PAPER - II

The share of mother = 1/6


The residue share of 2 sons = 2/3 of the residue
The residue share of daughter = 1/3 of the residue

Residue in this case cannot be revered to the wife, since there are other heirs, therefore we shall apply
Doctrine of Return to the shares of other Residuaries i.e, Mother, 2 Sons and Daughter.
 First, we shall reduce the shares of Residuaries only to a common denominator, which is 6
 Second, decrease the denominator of these shares so as to make it equal to the sum of the numerators:
 Third multiply with the residue, which is 7/8:
 Fourth, to gain the equity, reduce the shares to a common denominator:

1st Step 2nd Step 3rd Step 4th Step


2 Wives = 1/8 = 1/8 = 1/8 = 1/8 = 7/56
Mother = 1/6 = 1/6 = 1/7 = 1/7 x 7/56 = 7/56
(7/8)
2 Sons = 2/3 = 4/6 = 4/7 = 4/7 x 28/56 = 28/56
(7/8)
Daughter = 1/3 = 2/6 = 2/7 = 2/7 x 14/56 14/56
(7/8)
= 56/56=1

f) A Hanafi Muslim dies leaving behind a widow, a mother, a father, two sons and one daughter.
Distribute his estate among them. [May, 2004]

Answer:
The share of father = 1/6
The share of wife = 1/8
The share of mother = 1/6
The share of 2 sons = 2/3 of the residue
The share of daughter = 1/3 of the residue

Residue in this case cannot be revered to the wife, since there are other heirs, neither can father benefit
from the Return as there are sons and daughter, therefore we shall apply Doctrine of Return to the shares of
other Residuaries i.e, Mother, 2 Sons and Daughter.
 First, we shall reduce the shares of Residuaries only to a common denominator, which is 6
 Second, decrease the denominator of these shares so as to make it equal to the sum of the numerators:
 Third multiply with the residue, which is 7/8:
 Fourth, to gain the equity, reduce the shares to a common denominator:

1st Step 2nd Step 3rd Step 4th Step


Wife = 1/8 = 1/8 = 1/8 = 1/8 = 7/56
Mother = 1/6 = 1/6 = 1/7 = 1/7 x 7/56 = 7/56
(7/8)
2 Sons = 2/3 = 4/6 = 4/7 = 4/7 x 28/56 = 28/56
(7/8)

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JUDICIAL GROUP: PAPER - II

Daughter = 1/3 = 2/6 = 2/7 = 2/7 x 14/56 14/56


(7/8)
= 56/56=1

g) What is the share of alone daughter in the estate of her father? [Oct,, 2001]

Answer:
The share of alone daughter = 1/2 as a sharer
And if there are no any other heirs = she gets another 1/2 as residuary.

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LIST OF SHARERS UNDER SUNNI LAW

Sr.# Share Sharer Condition


1 1/6 Father If there is any child or child of a son
2 1/6 True Grandfather If father is not alive
3 ½ Husband If there is neither child nor any child of a son.
¼ Husband If there is any child or child of a son
4 ¼ Wife If there is neither child nor any child of a son.
1/8 Wife / Wives If there is any child or child of a son
If there is any child or child of a son OR any kind of two or
1/6 Mother
more brothers / sisters
5
If there is neither any child or child of a son and only one
1/3 Mother
brother or sister.
6 1/6 True Grandmother/s If mother is not alive
½ Daughter If she is alone and does not have any brother.
7 If daughters are more than one and they do not have any
2/3 Daughters
brother.
8 ½ Son’s daughter If there is neither any child nor any son’s son.
2/3 Son’s daughters If there are neither any child nor son’s son
If there is neither child or child of a son nor father or true
1/3 Uterine Brothers/Sisters grandfather; and Uterine Brothers/Sisters are more than
9/10 one.
If there is neither child or child of a son nor father or true
1/6 Uterine Brother / Sister
grandfather; and Uterine Brother/Sister is alone.
If there is neither father or true grandfather, nor any child
½ Full Sister or child of a son; and she is alone i.e., does not have any
full brother
11
If there is neither father or true grandfather, nor any child
2/3 Full Sisters or child of a son; and they are more than one but do not
have any full brother either
If there is neither father or true grandfather, nor any child
½ Consanguine Sister or child of a son; and she is alone i.e., she does not have
any full brother/sister or consanguine brother.
12
If there is neither father or true grandfather, nor any child
2/3 Consanguine Sisters or child of a son; and they are more than one but do not
have any full brother/sister or consanguine brother either.

In Shia Law, the grandfather and grandmother are not recognized as heirs of sharers class. And all others will
be the same.

LIST OF RESIDUARIES IN ORDER OF SUCCESION UNDER SUNNI LAW

Sr.# RESIDUARY CONDITION


I. DESCENDANTS

1 Son If he has sister, he takes 2/3 while his sister takes


1/3
2 Son’s Son If he has equal son’s daughter, he takes 2/3 while
equal son’s daughter takes 1/3.
II. ASCENDANTS

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3 Father When there is no child or child of son


4 True Grandfather When father’s not alive and there is no child or
child of son
III. DESCENDANTS OF FATHER
5 Full Brother If he has full sister, he takes 2/3 while his full
sister takes 1/3.
6 Full Sister She becomes Residuaries with her Full Brother
7 Consanguine Brothers If he has consanguine sister, he takes 2/3 while
his consanguine sister takes 1/3
8 Consanguine Sister She becomes residuary with her consanguine
brother
9 Full Brother’s Son
10 Consanguine Brother’s Son
11 Full Brother’s Son’s Son
12 Consanguine Brother’s Son’s Son
IV. DESCENDANTS OF TRUE GRANDFATHER
13 Full Paternal Uncle
14 Consanguine Paternal Uncle
15 Full Paternal Uncle’s Son
16 Consanguine Paternal Uncle’s Son
17 Full Paternal Uncle’s Son’s Son
18 Consanguine Paternal Uncles’ Son’s Son

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