Qanoon e Shahadat

Order 1984
(QSO)
BY
TURAB KHAN JADOON
LAW INSTRUCTOR
PPSA
 Scheme of discourse

a) Understanding the Law

b) Practical challenges
 LEGAL TERMS
PLD All Pakistan Legal Decisions
MLD Monthly Law Digest
CLC Civil Law Cases
SCMR Supreme Court Monthly Review
PCRLJ Pakistan Criminal Law Journal
PLJ Pakistan Law Journal
PLD 1985 Peshawar 35 PLD 1989 Lahore 196 PLJ 2003 SC 1
PLD 1995 Peshawar 81 PLJ 2006 Quetta 19 PLJ 2000 SC AJK 458
PLD 1974 SC 193 2007 SCMR 1620 2004 YLR 629
 Prison

Prosecution

Police
Original ‘Evidence Act 1872’ was repealed in
1984,
Qanun e shahadat Order was introduced in
1984
Its compendium of rules of procedure
/practices for the court to record evidence
of the parties .
Subjectively both the laws are the
same ,Objectively they are poles apart,
as evident from preamble
Substantially &subjectively mere
reproduction of all sections of
evidence Act with few additions
 In iii parts and xiii chapters
PART – I consists of vi Chapters, pertains to

“ RELEVANCY OF FACTS”
2) PART 11 consists of II chapters, relates to

”PROOF” and

3) PART III consists of V chapters, and focus is on

“PRODUCTION AND EFFECT OF
EVIDENCE”
 Object
Preamble : Whereas it is expedient to revise,

amend and consolidate the law of evidence so

as to bring it in conformity with the

injunctions of Islam as laid down in the Holy

Qur'an and Sunnah ;

(2) It extends to the whole of Pakistan
and applies to all judicial proceedings in
or before any Court, . . . . .

but does not apply to proceedings before

an arbitrator.
Judicial proceeding
There are four requisite of a forum to be characterized as
judicial;
1) Presentation of a case by a party
2) Ascertaining facts by means of evidence
3) Submission of legal arguments
4) Pronouncement of decision which disposes of the
whole matter by finding of facts & application of law to
facts as found
"Evidence" includes;
all statements which the Court permits or
requires be made before it by witnesses,
relation to matters of fact under inquiry ; such
statements are called oral evidence ; and
all documents produced for the inspection of the
Court; such documents are called
documentary evidence ;
fact" includes—
anything, state of things, or relation
of things capable .of being perceived
by the senses,
any mental condition of which any
person is conscious
“Fact” includes…
That there are certain objects arranged in a
certain order in a certain place, is a fact.
That a man heard or saw something is a fact.
That a man said certain words is a fact.
That a man holds a certain opinion, has a certain
intention, acts in good faith or fraudulently, or
uses a particular word in a particular sense or is
or was at a specified time
That a man has a certain reputation is a fact.
Fact in issue
The expression "facts in issue" includes
any fact from which, either by itself
or
in connection with other facts the
existence, non-existence, nature or
extent of any right is proved .
Relevant fact
One fact is said to be relevant to
another when the one is connected
with the other in
any of the ways referred to in the
provisions of the Order relating to the
relevancy of facts.
Example
A is accused of murder of B. At his trial the
following facts may be in issue:—
that A caused B's death ;
that A had intended to cause B's death ;
that A had received grave sudden provocation from
B;
that A, at the time of doing the act which caused
B's death, was by reason of unsoundness of mind,
incapable of knowing its nature.
Proof
A fact is said to be proved when, after
considering the matters before it, the
Court either believes it to exist, or
considers its existence so probable
that a prudent man ought, under the
circumstances of the particular case, to
act upon the supposition that it exists.
Disproof
A fact is said to be disproved when
after considering the matters before it,
the Court either believes that it does
not exist, or considers its non-
existence so probable that a prudent
man ought, under the circumstances of
the particular case, to act upon the
supposition that it does not exist.
When facts not otherwise relevant become
relevant
Facts not otherwise relevant are relevant-
(1) If they are inconsistent with any fact is issue or
relevant fact;
(2) If by themselves or in connection with other
facts they make the existence or non-existence of
any fact in issue or relevant fact highly probable or
improbable
Situation 1
a) The question is, whether A committed a crime
at Lahore on a certain day.
The fact that, on that day, A was at Karachi is
relevant.
The fact that, near the time when the crime was
committed, A was at a distance from the place
where it was committed. Which would render it
highly improbable, though not impossible, that he
committed it, is relevant.
Situation 2
(b) The question is, whether A committed a
crime.
The circumstances are such that the crime
must have been committed either by A,B,C
or D. Every fact which shows that the crime
could have been committed by no one else
and that it was not committed by either B, C
or D is relevant.
Accomplice (16)
An accomplice is guilty associate or
partner in crime , a person who is
believed to have participated , or who
in some or the other way , is
connected with crime in question , or
who makes a admission of the facts
showing that he had a conscious hand
in the offence .
Evidentiary value
Not admissible unless he is corroborated in
material particulars .
Not admissible at all in case punishable
under Hadd .
 Should pass through double testing.
Considered an unreliable person for he is
betraying his erstwhile associates under
temptation of saving his own skin.
RELEVANCY OF FACTS
(18-29)

Evidence can be led on facts in issue or

the facts relevant to the facts in issue.
Direct Evidence :
If it consists of an eye witness account of
the fact in issue
Circumstantial Evidence : Is the evidence of
relevant facts from which a mind is led by
process of initiative reasoning to infer
about the existence of the fact in issue .
Res Gestae {Things Done}
Matter incidental to the main fact and
explanatory of it , including acts and
words which are so closely connected
therewith as to constitute part of
transaction and without a knowledge
of which the main fact might not be
properly understood .
Relevant
Motive ,preparation and previous or
subsequent conduct.

A is tried for murder of B ;

The fact that A murdered C ,and B knew that B
had tried to extort money from A by threatening
to disclose news , are relevant .
Motive
An idea, belief, or emotion that impels a person to
act in accordance with that state of mind.
To explain why a person acted or refused
to act in a certain way—
for example, to support the prosecution's
assertion that the accused
committed the crime. If a person accused of murde
r was the beneficiary of a life insurance policy
on the deceased, the prosecution might argue
that greed was the motive for the killing.
Whether Motive is precondition for commission of

offence to be proved by prosecution ?

A double edged weapon ???
1982 SCMR 178
 MOTIVE contd
Not necessary for prosecution to show existence
of motive in every criminal case .

Once motive is disclosed it should be proved

beyond reasonable doubt

Becomes a kind of positive assertion on the part

of prosecution
 Contd

In criminal law, motive is distinct from

intent. Criminal intent refers to the me
ntal state of mind of defendant in
committing crime.
Relevant facts
Absconding

Recovery

Last seen

Plea of self defense

When facts otherwise not
relevant become relevant
Question is whether A committed a crime at
Peshawar on a certain day ?
The fact that A on that particular day was at
Lahore is relevant
The fact that near the time the crime was
committed ,A was at a distance from the place
which render it highly improbable ,that he
committed it ,is relevant
Admission (30-36)
A statement ,oral documentary
suggesting inference as to any fact in
issue or relevant fact . It means an
acknowledgement ,its an act of
conceding .
2000YLR 1449
CONFESSION (37-43)
Volunteer admission by a culprit before Mag; by
detailing happening of incidents including its
motive . Same statement would constitute
application of penal sections and same can
coincide with the facts and circumstances of
prosecution case .
PLD 1975 pesh 173.PLD 1970 pesh 185
Pre requisite
Made by accused

Voluntary

Free will

Free from threat /inducement /Promise

Prompt
Confession Stained with doubt
Made to Police officer not admissible
Extra judicial confession during Police custody
Prolonged Police custody
Delay in recording confession
Retracted confession
Recorded in presence of co accused
On oath
Accused of tender age
2002 PCRLJ 1402

1998PCRLJ1993

PLJ 1975 SC 158

PLD 1975 SC 187

PCRLJ 1986 523 1992 SCMR 196

Art 40,an Exception
to rule 38 & 39
Article 40 qualifies art;38&39, so much of the
information given in the confession which
distinctly relates to a relevant fact thereby
discovered becomes admissible even though
confession as a whole might be disqualified by
reason of provision of articles 38 & 39.
AIR 1955Manipur 1.AIR 1962Punj 70.
Statement by accused to police that they have
stolen a cow &a Calf from X, is inadmissible u/a
38&39.But part of statement that they had sold
Cow &Calf to A at place M , becomes admissible
because of subsequent recovery of these animals
from A at place M.
AIR 1955All443
Confession by one of the many
jointly under trial (43)
Such confession would be proved against accused making it

It may be taken into consideration as circumstantial evidence

against other accused.
A & B are jointly tried for murder of C .It is
proved that A said ,” B and I had committed
murder of C”. The Court may consider effect
of this confession as against B.
2003 YLR 2175

PLD 1960SC313. PLD 1960 SC 382

Expert Opinion (59-65)
Court not always in conceptive position to form
judicial opinion

opinion of a Person having ,

Special skill ,knowledge or experience in a

particular field becomes relevant and admissible
in evidence .
Handwriting expert& Finger prints expert

Tracker/Sniffer Dogs

Fire arm expert

Ballistic expert

Medical evidence

Foreign law etc

Evidentiary value
Only confirmatory /explanatory
Relevant but not conclusive proof
Mere opinion
Needs corroboration through confidence inspiring
evidence
1966 SCMR 1736
PLD 1982 SC89. AIR 1921Lah 126
Comparison by court
Court is equipped by legal authority to compare
the signature of the parties itself .

Even when expert report is available on record still

court can look into and draw opinion of its own .
2012 YLR 291 & 2944. 2010 MLD 1162
Evidence /Proof (70-101)
Standard proof in criminal cases is that it

should be beyond all reasonable doubts.

The extent to which an individual material of

evidence would aid in establishment of the general
truth would be its probative force . That must be ,
 Contd
a) To believe in existence of the fact sought to be
proved .

b) To consider its existence so probable that a

prudent mind ought to act upon the supposition
that it exists .

c) The proof must rest on evidence .

Oral & Documentary
All facts except contents of documents

can be proved through oral evidence .

Oral evidence should be direct ,coming from

mouth of a person who himself saw and
heard the episode he is deposing about .
Facts which need not be
proved
(111-113)

Fact which court will take judicial notice

thereof.

Admitted facts
Burden of proof (117-129)

He who asserts existence of a fact

has to prove .
Burden in criminal cases to prove a fact
beyond reasonable doubt against accused would
lie upon the prosecution .
When a good prima facie case has been made
against accused sufficient to justify his conviction
for that offence , then burden shifts upon the
accused to prove that he is not guilty. .
Benefit of doubt
A golden thread which runs through the web of the
administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one pointing to
the guilt of the accused and the other to his innocence, the view
which is favorable to the accused should be adopted.
 Contd
The ‘reasonable doubt’ is one which occurs to a
prudent and reasonable man.

It is this doubt which occurs to a reasonable man,

has legal recognition in the field of criminal

disputes
Muslim jurists identified a doctrine of doubt in
early cases, which—with repetition as a matter of
judicial practice—became a legal canon. This
process represented the “canonization” of doubt..
To accomplish this “textualization” of doubt, they
claimed that Muḥammad himself had uttered the
statement calling on judges to “avoid criminal
punishments in cases of doubt.”
(a) A, accused of murder, alleges that, by reason of
unsoundness of mind, he did not know the nature
of the act.
The burden of proof is on A.
(b) A, accused of murder, alleges that, by grave
and sudden provocation, he was deprived of the
power of self-control;
The burden of proof is on A.
2006MLD 261,2003SMR 668
Initial burden to prove the guilt against the
accused lies upon the prosecution ,but when a
specific plea has been taken by the accused in his
defense ,then both are to be considered in
juxtaposition and the one which is nearer to the
truth is to be given weight .
Examination of witnesses
(130-161)
Examination In chief
Cross examination
Re examination
(140)
One of the modes in which credit of a witness may
be impeached .
This article in express terms applies to previous
statements in writing and not to oral statement.
AIR 1956 Raj 196
Hostile witness(150)
Question by a party to his own witness
The word ‘hostile ‘ does not figure anywhere in QSO . An
un favorable witness is not necessarily a hostile witness.
Two conditions ;
a. A hostile animus
b. Being not desirous of telling the truth.
2008PCrLJ 327
Improper admission /rejection
of evidence (162)
No new trial .
Like 537 CrPC ,which intends to cure ,any error
omission or irregularity committed by a court of
competent jurisdiction in the course of trial
though accident or inadvertence ,unless such
irregularity has ,in fact ,occasioned a failure of
justice .
In case of

a. Improper admission : There is sufficient evidence to

justify the decision ,independently of the evidence
objected to admitted .

b. In case of improper rejection : The decision could not

be varied , if the rejected evidence had been received .
PLD 1978 SC 251
In order that a party may be entitled to invoke this
article ,it is necessary to establish that witness is
guilty of prevarication ,or that he is inconsistent in
his statement or he tries to suppress the truth or
bears animosity the party who called him .
PLD 1971 Dacca 118
Evidence available /modern devices
(164)
Audio /video cassette
Press clipping
E-mail
Fax
DNA test
Poly graphic test
Thank you