QANOON‐E‐SHAHADAT

(LAW OF EVIDENCE)
Presented by

Qanun-e-
Shahadat Justice Retired Nadeem Azhar Siddiqi
Advocate Supreme Court of Pakistan

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 Contents Page
No.
QANUN-E-SHAHADAT ORDER 1984 3
JUDICIAL PROCEEDINGS 8
QUASI JUDICIAL 9
APPLICATION OF ORDER 10
WHO MAY TESTIFY 11
ORAL EVIDENCE 14
DOCUMENTARY EVIDENCE 16
Qanun-e-
PRIMARY EVIDENCE 18
Shahadat
SECONDARY EVIDENCE 19
CONFLICT BETWEEN ORAL AND DOCUMENTARY EVIDENCE 20
DIRECT AND CIRCUMSTANTIAL EVIDENCE 21

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 QANUN-E-SHAHADAT ORDER 1984
The Qanun-e-Shahadat Order replaced the Evidence Act (I of 1872). (The
Qanun-e-Shahadat hereinafter referred to as Order) The purpose of
enactment of the Order is said to consolidate the law of evidence so as to
bring it in confirmatory with the injunctions of Islam as laid down in the
Holy Quran and Sunnah.

It was enacted in the days when General Muhammad Zia-ul-Haq was the
Qanun-e-
Shahadat President of Pakistan and there was a move to make the laws in
confirmatory with injunctions of Islam.

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 QANUN-E-SHAHADAT ORDER 1984
….Contd
The decision of every case civil or criminal depends upon evidence and
application of the principles of the law of evidence is necessary. It has to
be applied in almost in every matter that’s come before the Court and its
usefulness in civil and criminal cases is the same. The Order is applicable
in the whole of Pakistan and applies to all judicial proceedings, or before
any Court, including a Court Martial, a Tribunal or other authority
Qanun-e- exercising judicial or quasi judicial powers or jurisdiction, but does not
Shahadat
apply to proceedings before an Arbitrator.

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 QANUN-E-SHAHADAT ORDER 1984
….Contd
The Qanun-e-Shahadat prescribes procedure and methods with regard to recording
of evidence of parties for the purpose of proving facts and documents.

If we carefully examine the provision of Evidence Act, 1872 and Qanun-e-Shahadat

Order we found that except with few exceptions the Qanun-e-Shahadat Order is
subjectively the same as of Evidence Act with exception of Article 3, Article 4 to 6,
addition of Article 44 and addition of a proviso to Article 42. Articles 163 to 166
Qanun-e- were also added in the new law. It is said that almost all the provisions of the
Shahadat
Evidence Act, 1872 with a few amendments have been kept intact because most of
the provisions of Evidence Act, 1872 were not repugnant to Islamic principles of
law.

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 QANUN-E-SHAHADAT ORDER 1984
….Contd
Article 163 deals with acceptance or denial of claim on oath. When the
Plaintiff takes oath in support of his claim the court shall, on the
application of the Plaintiff call upon defendant to deny the claim on oath.

Article 164 deals with the evidence that has become available because of
modern device etc. In such cases as the court may consider appropriate, the
court may allow to be produced any evidence that may be become
Qanun-e-
Shahadat available because of modern devices or techniques. The telegraphic
messages can be produced in evidence.

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 QANUN-E-SHAHADAT ORDER 1984
….Contd
Video recording, audio cassette, video film can also be produced in
evidence. The production of these materials is subject to prove that the
same is genuine and not tempered one.

By insertion of Article 165 the new law was given overriding effect and by
insertion of Article 166 the earlier Evidence Act, 1872 (I of 1972) was
repealed.
Qanun-e-
Shahadat The Order has 13 Chapters and 166 Articles. It has been noticed that
sections 82, 93, 113, 119, 120 and 166 of the old act have not been
incorporated in the new order. All other sections of the act were available
in the new law.
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 JUDICIAL PROCEEDINGS
Judicial proceedings means discharge of duties exercisable by a Judge in a
judicial proceedings in Court. For a judicial proceeding it is necessary to bear a
judicial mind to determine what is fair and just in respect of the matter under
consideration. It includes any proceedings in the course of which evidence is or
may be legally taken on oath.

A proceeding in order to judicial must relate in some way to the administration

of justice or to the ascertainment of any right or liability. It was held by the
Qanun-e-
Shahadat Lahore High Court in the reported case of Mrs. Rani v. Commissioner of Wealth
Tax Lahore 1993 PTD 206 that proceedings before income authorities were
judicial in nature and authorities were exercising quasi judicial if not judicial
powers.
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 QUASI JUDICIAL
The concept of quasi judicial implies that the act is not wholly judicial. It
describes only a duty cost on the executive body or authority to conform to
forms of judicial procedure in performing some acts in exercise of its
executive power. The quasi may indicate that the tribunal is not acting
purely administratively or that it is acting in a manner in which the judicial
tribunal is expecting to act.
Qanun-e-
Shahadat

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 APPLICATION OF ORDER
This order applies to all judicial proceedings in or before any court which
includes all persons legally authorized to take evidence but will not apply
to the proceedings before the arbitrator. The reason assigned in a judgment
was that arbitrators are not expected to work as slaves of technicalities
when they are giving award or judging validity and legality of award by
putting the same in the clutches of the Civil Procedure Code or the Qanun-
Qanun-e- e-Shahadat Order. Arbitrators are free to decide relevancy of question and
Shahadat
decided the matter on other material. The provisions of the order are also
not applicable to departmental inquiries.

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 WHO MAY TESTIFY
This is a very important question. Article 3 provides that who may testify. All
persons shall be competent to testify unless the court considers that they are
prevented from giving evidence. Those persons who were convicted by a court for
perjury or giving false evidence cannot testify.

Article 17 deals with competence and number of witnesses. The competence of a

person to testify and the number of witnesses required in any case shall be
Qanun-e- determined in accordance with the injunctions of Islam as laid down in The Holy
Shahadat Qur’an and Sunnah. Article 17 (a) provides that in matters pertaining to financial
or future obligations if reduced to writing the instrument shall be attested by two
men, or one man and two women.

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 WHO MAY TESTIFY
….Contd
In all other matters, the court may accept or act on the testimony of one
man and one woman. The court has to determine the competence of a
witness in accordance with the qualifications prescribed by the injunction
of Islam as laid down in The Holy Qur’an and Sunnah.

The word used is Tazkiyah, which means mode of inquiry adopted by a

court to satisfy itself as to the credibility of a witness or clearing a witness
Qanun-e- from acquisition or suspicion caused upon him by the opposition party by
Shahadat
holding an inquiry by a Qazi openly or secretly.

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 WHO MAY TESTIFY
….Contd
This provision is not mandatory but directory in nature and non-compliance of
Article 3 is an irregularity which can be cured. In Hadd matters Tazkiyah-Al-
Shuhood is a condition precedent to impose the sentence of Hadd. There should
be one Muzakki (a person who testifies about the trustfulness of the witness).

It is responsibility of the court to satisfy about the credibility of the witness and
for that purpose that court can hold inquiry open or secrete. In this regard the
Qanun-e- court frames a questionnaire to collect information. In the cases where Tazkiyah-
Shahadat
Al-Shuhood are not undertaken the punishment of Qisas cannot be awarded,
however punishment can be award by way of Tazeer.

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 ORAL EVIDENCE
Articles 70 and 71 deal with the oral evidence. Article 70 provides that all
facts except the contents of documents may be proved by oral evidence.

Oral evidence means and includes statements which the court permits or
requires to be made before it by witness, in relation to the matters of fact
under inquiry. Article 71 provides that oral evidence must, in all cases be
direct.
Qanun-e-
Shahadat It means that if a fact which could be seen it must be the evidence of a
witness who says he saw it. If it refers to a fact which could be heard it
must be the evidence of a witness says he heard it.

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 ORAL EVIDENCE
….Contd
Order is a code complete in itself as to the mode of proof of facts by way
of oral evidence. No rule of law requires that particular fact must be
proved through production of documents only. It is rule of law of evidence
that best available evidence should be brought before the court. Direct
evidence alone is admissible under Article 71 whereas indirect evidence is
not admissible in evidence.
Qanun-e-
Shahadat

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 DOCUMENTARY EVIDENCE
Chapter 5 deals with the documentary evidence. Article 72 provides that
the contents of the documents may be proved either by primary or by
secondary evidence. Article 73 provides that primary evidence means the
document itself produce for the inspection of the court.

Qanun-e-
Shahadat

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 DOCUMENTARY EVIDENCE
….Contd
Article 74 provides secondary means and includes certified copies giving
under the provisions of Qanun-e-Shahadat Order, copies made from the
original by mechanical process, copies made from or compared with the
original, counter parts of documents as against the parties who did not
execute them and oral accounts of the contents of a document giving by
some person who has himself seen it.
Qanun-e-
Shahadat A document its mere tender gets no evidentiary value unless its contents
are proved according to law.

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 PRIMARY EVIDENCE
Primary evidence is the best available evidence and should be produced
before the Court. It is the best or highest evidence. It is that kind of proof
which in the eyes of law affords the greatest certainty of facts in question.

The primary evidence of the contents of the document is the document

itself. Where original documents were lost, the forum adjudicating upon
claim of parties take notice of copies of original documents subject to
Qanun-e-
Shahadat proof that the copies are made from the original.

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 SECONDARY EVIDENCE
Where existence of original document was not in issue and same was not
available the secondary evidence can be produced. Secondary evidence can
only be produced when original was either lost or was not in custody of the
party wishing to produce the same.

The procedure is provided under Article 74 and 76. Article 74 provides

what are secondary evidence and Article 76 provides cases in which
Qanun-e- secondary evidence relating to documents may be given. Where original
Shahadat document was not produced and permission from court for leading
secondary evidence was not obtained, copy of said document was not
admissible in evidence.

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 CONFLICT BETWEEN ORAL AND
DOCUMENTARY EVIDENCE
In case of conflict, oral evidence would have no value in the face of
documentary evidence, because man may lie in order to support their
causes but documents cannot. Negative oral evidence loses its value in the
presence of documentary evidence.

Qanun-e-
Shahadat

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 DIRECT AND CIRCUMSTANTIAL
EVIDENCE
In criminal matter direct evidence means ocular evidence which is the
direct testimony of a witness. Direct evidence is a proof which goes
directly to establish the involvement of the accused person in the
commission of an offence. Whereas all other facts connecting a particular
case indirectly constitute circumstantial evidence, which are subsidiary
facts.
Qanun-e-
Shahadat

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 THANK YOU
Qanun-e-
Shahadat

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