THE QANUN-E-SHAHADAT ORDER,1984
The following order made by the president on the 30th Mahram-ul-haram 1405,26th October 1984, is hereby published for general information:
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 quran and sunnah:
Now therefore in pursuance of the proclamation of the day of July 1977, and in exercise of all powers enabling him in that behalf the president is please to make the following order:–
RELEVANCY OF FACTS
SHORT TITLE, EXTENT AND COMMENCEMENT
The order may be called the QANUN-E-SHAHADAT ORDER,1984
it extends to the whole of Pakistan and applies to all judicial proceedings in or before any court, including a Court-martial, a Tribunal or other authority exercising judicial or quasi-judicial powers or jurisdiction, but does not apply to proceedings before an arbitrator.
It shall come into force at once.
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:
provided that a person shall not be competent to testify if he has been convicted by a court for perjury or giving false evidence:
provided further that the provisions of the first proviso shall not apply to a person about whom the court is satisfied that he has repented there after and mended his ways:
provided further that the court shall determine the competence of a witness in accordance with the qualifications prescribed by the injunctions of Islam as laid down in the holy Quran and sunnah for witness, and where such witness is not forthcoming thee may take the evidence of a witness who may be available.
court under proviso(iii) of art no 3 of the Qanun-e-shahad bound to conduct tazkia
(purgation) of the witnesses in hadood and qisad cases[PLD 2006 SC (AJ&K43]:
Competency to testify—Conditions
capacity to understand
rationally answer the question
possessing the qualifications prescribed by injunction of Islam as laid down in the Holy Quran and Sunnah.
AGE OF THE CHILD
Evidence of a child witness possessing sufficient understanding [1995 SCMR 1615].
Competent to depose. Police witnesses are competent witnesses in the eyes of law and unless it could be demonstrated that the police officials have any motive or reasons to falsely implicate the accused. Their testimony could not be discarded for the reason that they happened to be employees of police department.[PLJ2006 Cr.c(pesh.)244(DB)].
QUANTUM OF EVIDENCE
It is quality and not quantity of evidence which merits consideration. If prosecution feels satisfied that its case can be proved by producing single witness then there would be no compulsion for it to produce all those witnesses mentioned in FIR.[PL J 2005 Cr. C Pesh 196; PL J 2000 SC 1593].
The quality and quantity which matters in answering whether a fact has been proved or not [1989CLC 1498]. But in civil cases number of witnesses are mentioned in article 17 of Qanun-e-shahad 1984 which are two male or one male and two female witnesses if a document attested and it relates to the matter of financial or future obligations. [PL J 2002 SC 76].
Perjured witness is incompetent [ 1992 PCR.LJ 2130]
Tazkiyah al shahood guideline.[PLD 1992 FSC 390]
Tazkiyah al shahood.
Requirement can be fulfilled at the end of testimony. Obligation of Tazkiyah-al-shahood is only in cases punishable with hadd/qisas and not with Tazir.
JUDGES AND MAGISTRATES.–
Judge or magistrate shall except upon the special order of some court to which he is subordinate, be compelled to answer any question as to his own conduct in court as judge or magistrate, or as to anything which came to his knowledge in court as such judge or magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.
COMMUNICATION DURING MARRIAGE;–
no person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married nor shall he be permitted to disclose any such communication unless the person who made it, or his representative-in-interest, consent, except in suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other.
EVIDENCE AS TO AFFAIRS OF STATE.–
No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of state, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.
The Qanun‑e‑Shahadat as its preamble will show, is designed 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 and the provisions thereof shall have effect notwithstanding anything contained in any other law for the time being in force. P L D 1994 Kar. 492 It is fully applicable in the case before the Tribunal and Authorities to proceedings under the Ordinance II of 1963. 1991 S C M R 643. It applies to all judicial and quasi-judicial proceedings. 1991 M L D 1631 But Principles of Islamic law of evidence, so long as they are not codified or adopted by Qanun‑e‑Shahadat, 1984 are not per se applicable and cannot be pressed into service. P L D 1995 Kar. 469 + P L D 1994 Lah. 452 The Qanun‑e‑Shahadat, 1984 was objectively totally different from the repealed Evidence Act. The object of the Oanun‑e‑Shahadat Order is evident from its preamble‑, which had never been the object of the repealed Evidence Act. With reference to the preamble, intention or object of introducing the said Order, as stated therein, was to bring the Law of Evidence in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah. P L D 1995 Karachi 469
2. Competency of a witness: –
All persons, no matter they are relatives or not, are competent to give evidence if-
(i) they possess physical ability of understanding the questions put to them; and
(ii) they give rational answers to these questions.
If any witnesses are prevented from understanding the questions put to them or from giving rational answers due to tender years, extreme old age, disease whether of body or mind or another cause of same kind or due to lunacy (as per illustration in Article 3 of the Order) then he/she may not be treated to be a competent witness. Other than the physical ability pertains to moral qualities of a witness. It requires a witness to give evidence which should always be free from fear, favor, hatred, bias, love, lust, affection and enmity. Regarding this condition of competency third proviso to Article 3 of the Order makes it imperative for the Court to determine the competence of a witness in accordance with the qualification .prescribed by the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah. In case such witness is not forthcoming, the Court may take the evidence of witness who may be available.
Although it was mentioned in the 3rd proviso to Article 3 of the Order 1984 that the Court shall determine the competence of a witness in accordance. with qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah for a witness yet the details of such qualifications were avoided to be mentioned in the Order 1984. Perhaps it was presumed by the legislators that most of the Presiding Officers of the Court were well-conversant with the Holy Qur’an, and the Sunnah on the law ‑of evidence. So far as the Holy Qur’an is concerned no believer has any dispute on its universalism but this bitter reality cannot be denied that several books of A hadith which are recognized by one sect are usually not accepted by other sects. Moreover, starvation of real scholars in the present age has increased the number of compilers who presented their books or booklet in accordance to, the views of any specific Imam. Such kind of compilation has done no service to humanity but has only strengthened sectarianism.
So far as the Courts are concerned they are not supposed to follow any specific Imam, spiritual leader or religious sect, even in spite of their deep attachment with them. Judges belong to an elite of erudite who are expected to work as thinkers and in capacity of Judges of an Islamic State they are bound to judge which view of the Muslim scholars is closest to universalism because Islamic principles of justice are universal in their nature and sectarianism or parochialism do not have any scope in it. They are also expected to possess faculties of cogitation to harmonize conflicting views of scholars with the help of juristic deductions including Qisas.
Evidence of a witness is for Justice to Allah (S:4: 135) or for Allah to Justice (S.5:8). Therefore, combined effect of the two verses of the Holy Qur’a shows nothing except that evidence in its real sense is neither for favoring nor opposing any party but is to promote Justice for the sake of Allah Almighty. Therefore, at the time of giving evidence a witness should not hesitate to testimony even against his/her own interest against the interests of his/her close relatives because protection of interests of any party lies with Allah (S.4:135). As Justice is next to piety, therefore, arty person, no matter he/she is of airy faith, can be symbol of piety if Justice; is done by that person. Moreover, justice is not the fief of any nation, thereof, piety also cannot be the fief of any class of believers or atheists. Real Justice can only be done when witnesses give evidence based on truth. If the evidence of a witness reflects enmity, bias, love, lust ac. against or in favor of d person then such evidence is not admissible. It evidence of a witness to favor of a party is not objected by or no doubt is expressed about the evidence of that witness by the opposite party then such evidence be treated admissible provided the Judge of the Court is also satisfied that the evidence of that witness is free from partiality, favoritism and inducement etc. If the evidence of such person created some doubt in the minds of Common person about partiality or favoritism, then the same may not be treated admissible unless corroborated by other pieces of evidence. Same is the position of evidence of slaves or servants in favour of their masters, wives in favour of their husbands or children in favour of their parents and vice versa provided they are dependent upon the house‑holders. P L D 1995 Karachi 469
STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES.
Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases:–
when the statement made by a person as to the cause of the death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death come to the question such statements are relevant whether the person who made then was or was not, at the time when they were made under expectation of death, and whatever any be the nature of the proceeding in which the cause of his death comes into question.
When the statement is made by the person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of the business or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any ind or of a document used in commerce written or signed by him or of the date of a letter or other document usually dated written or signed by him.
When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose or would have exposed him to a criminal prosecution or to suit for damages.
When the statement gives the opinion of any such person as to the existence of any public right custom or matter of public or general interest of the existence of which if it existed he would have been likely to be aware , and when such statement was made before any controversy as to such right custom or matter has arisen.
When the statement relates to existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
When the statement is relate to the existence of any relationship by blood, marriage or adoption between the persons deceased and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged or in any family pedigree or upon any tomb stone, family portrait or other thing on which such statements are usually made and when such statements was made before the question dispute was raised.
When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in art.26 paragraph(a).
when the statement was made by a number of persons, and expressed feeling or impressions on their part relevant to the matter in question.
ADVOCATE IMRANA HANIF