QSO 1984- Law Of Evidence

Law of Evidence is originally taken from British Empire. This law was originally drafted by Lord Macaulay.

Islamization Under General Zia-ul-Haq: The Government of Zia-ul-Haq took a number of steps to
eradicate non-Islamic practices from the country. He introduced the Zakat, Ushr, Islamic Hadood and
Penal Code in the country. The Government invited eminent scholars to compile laws about Islamic
financing. The Law of Evidence, under the Shariah laws proposed that the testimony of a woman was
not equal to that of a man. In legal matters, two women would have to stand witness against the
testimony of one man. The status of women was thus arbitrarily cut in half by Zia...!!!!!!!!!!!!!!

Article 03: COMPETENCY OF WITNESS:

RELEVANT PROVISIONS

Art 3 and 17 of QSO

DEFINITION OF WITNESS

BLACK’s LAW DICTIONARY

“A person, who testifies about a particular fact that he has seen, heard or perceived it.”

COMPETENCY OF WITNESS:

There are certain qualifications for the competency of the witness. Law imposes the following restriction
on competent witness:

WHO MAY TESTIFY:

All persons shall be competent to testify unless the Court considers that they are prevented from
understanding the questions put to them, or from giving rational answers to those questions, by tender
years, extreme old age, disease, whether of body or mind or any other cause of the same kind:

TO WHOM COURT THINKS COMPETENT:

Satisfaction of the court is another essential element for the competency of witness. If court does not
consider witness as competent he cannot appear as competent witness even witness is person of sound
mind or generally considered competent.

WHO DETERMINES THE COMPETENCY OF WITNESS:

It is presiding officer of court who determines the competency of witness by putting some questions to
him.

GENERAL RULE:

All persons are competent witnesses who are able to understand question.
Understanding capability: Competent witness must understand what court of law wants to enquire. He
must have capability to answer the questions of court.

EXCEPTIONS/INCOMPETENT WITNESS:

Law has debarred some persons to appear as competent witness. Detail of those is as follows:

1. Incapacity of rational response: Person who is incapable to understand the question put to him or
who cannot give rational answers of court is not competent witness.

2. Young age factor: Although no age limit is prescribed for the competency of witness but it does not
mean that person of every age can appear as competent witness. Person who due to young age factor
cannot understand the requirement of evidence is not considered competent witness.

3. Old age factor: Old age does not matter but it matters a lot. Person who due to old age factor could
not understand the rationality of the questions and answers put to him in court is not competent
witness.

4. Bodily infirmity: Person who is bodily infirm is not competent witness.

5. Mental infirmity: Person of unsound mind is debarred to appear as competent witness, i.e., who was
person of unsound mind at the time of occurrence of incident.

6. Conviction in false evidence: Person is not competent who has been convicted in false evidence
except where he has been repented and mended his ways.

7. Unable to understand: the person who is unable to understand the question is not competent to
witness.

8. Qazaf: where person convicted of Qazaf is incompetent of testify. (AL-QURAN)

9. Habitual lair: where person is known for lying he would be disqualified for witness.

10. Where is interest: where person has fiscal interest or he has certain relationship with the party of
litigation he will not be treated as competent witness.

11. falseprejury: a person who is convicted of false perjury is also disqualified as witness.

12. Female in hudood: females in hadood cases can’t be regarded as witness.

13. True Muslim: In certain cases only true Muslim is competent witness particularly in Hudood crimes.
He must be person of those qualifications which Quran and Sunnah prescribe for a witness.

Tazkiashahood: Tazkia-Al-Shahood:

Tazkiah is an obligation on Qazi for ascertaining the competency and righteousness of a witness by
himself or through the medium of purgatory when competency of witness is challenged, that

(i) The witness should be clean from deeds which attract Hadd punishment

(ii) The witness should be free from sins

(iii) The witness should be Adil

(iv) Maturity

A witness must be a person of mature mind and understanding.

(V) Eye-sight

A witness must posses eye-sight in case of facts capable of being seen.

(VI) Speech

A witness must possess the capacity to speak or communicate in cases of Huded.

(VII) memory

A witness must be of good memory and person of bad memory is not considered as a competent
witness.

(vii) Muslim

The jurists agreed that Islam is a condition for the acceptance of testimony and the testimony of
disbeliever is not permitted but the jurists did not agree regarding its permissibility in bequests made on
a journey. Abu Hanifah said that it is permitted upon the conditions mentioned by Allah, while Malik and
shafi said that it is not permitted.

14. Male (only in hudood cases): only male in hodood cases are competent to witness. Such as in Zina 4
male witness are required and in other cases two male witnesses are required.

DETERMINATION OF COMPETENCY OF WITNESS:

Where there is any doubt of competency of witness, only court shall determine his competency by
putting questions to him. His response shall explore his competency.

EXCEPTIONS: Law has prescribed certain exceptions for the competency of the witness such as:

1. Ordinary witness: Where person of the qualifications prescribed in Quran and Sunnah is not available,
the court may take the evidence of the person who is available to testify the fact in issues.

2. Repented person: Person who had been debarred to appear as witness due to his disqualification by
way of false evidence or any other major sins, can be considered as competent witness if court thinks
that he has mended his ways and repented.

3. Lunacy while testifying: A person who was person of sound mind at the time of occurrence of the
incident is not incompetent witness if he loses his memory or becomes person of unsound mind while
he testify the truth before court. Court shall give him reasonable time for recovery so that he may testify
truth before court. Time relaxation is provided to reach at truth and conclusion.

4. Child witness: Child is competent witness provided court thinks him competent by testifying as to his
ability to give evidence. Set question cannot be asked to determine his ability to give evidence.

ZATOON BIBI VS. THE STATE (1998 PCRLJ 1680 SC AJ & K)

Qanun-e-Shahadat Order 1984 ----Art. 3---competency of witness to testify---child witness ---Law
requires the intelligence of a child witness to testify in the circumstances of the case and not the factor
of his or her age.

NUMBER OF WITNESSES

In certain matters different number of witnesses are required such as:

Hudood crimes:

As far as hadood crimes are concerned Quran and Sunnah determine the number of witnesses. Such as
in Zina 4 male adult muslim witness are required and in other hadood cases 2 muslim males are reuired
who fulfill the criteria of tazkiya e shahood.

Financial and future obligations:

need two males or one male and two females witnesses for conviction.

In civil cases:

one male or one female witness can be accepted.

Cases where one woman witness is sufficient:

Those matters where there is the presumption that one woman is available, her evidence would be
acceptable such as in the matters of child birth.

Application of this law: This Act is applicable to whole of Pakistan on all judicial proceedings. Where
evidence is required this law applies. This law is applicable for such forums:

1. Courts: Courts are subjects of the application of this law.

2. Persons empowered: Person who is empowered by law for the judicial proceedings is subject of
this law.

3. Tribunals: Tribunals for the judicial proceedings record their evidences under this law.

4. Quasi-judicial proceedings: It is also applicable in all quasi-judicial proceedings.

5. Magistrates: They are also subject of this law and record evidence under this law.

6. Martial Law Courts: They are also bound to record evidence under this law.Non-application of this
rule: This law does not apply on certain proceedings such as:

1. Jury system: Where jury system of justice exists there is no application of this law of evidence.

2. Arbitration: It is also not applicable in arbitration cases.

3. Inquiries: If the inquiry is not judicial then it is not applicable.

Court: As far as evidence law is concerned court means any person, tribunal, or authority, which
exercises powers, invested to her as per law of land.