Qanun-e-Shahadat, 1984 | Pakistan Kanoon

QANUN-E-SHAHADAT (10 OF 1984)

Section 2. Interpretation.—(1) In this Order, unless there is anything repugnant in the subject or context,—

(a) “Court” includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence;

(b) “document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter;

Illustrations

A writing is a document;

Words printed, lithographed or photographed are documents;

A map or plan is a document;

An inscription on a metal plate or stone is a document;

A caricature is a document.

(i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry ; such statements are called oral evidence; and

(ii) all documents produced for the inspection of the Court; such documents are called documentary evidence;

(d) “fact” includes—

(i) anything, state of things, or relation of things capable of being perceived by the senses; and

(ii) any mental condition of which any person is conscious.

(e) the expression, “automated”, “electronic”, “information”, information system” “electronic document”, “electronic signature”, “advanced electronic signature” and “security procedure”, shall bear the meanings given in the Electronic Transactions Ordinance, 2002;

(f) the expression “ certificate”, where the context so admits, includes the meaning given to it in the Electronic Transactions Ordinance, 2002.

Illustrations

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.

(b) That a man heard or saw something, is a fact.

(d) 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 conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation, is a fact.

(2) 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 this Order relating to the relevancy of facts.

(3) 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, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.

Explanation:—Whenever, under the provisions of the law for the time being in force relating to civil procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.

Illustrations

A is accused of the 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.

(4) 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.

(5) 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.

(6) A fact is said not to be proved when it is neither proved nor disproved.

(7) Whenever it is provided by this Order that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

(8) Whenever it is directed by this Order that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

(9) When one fact is declared by this Order to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

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— Document — Meaning — ‘Document’ in our law is the “matter expressed or described upon any substance” and not the substance itself, therefore information in the form of writing, words painted, map or plan, inscription or caricature etcetera when appear on a substance would qualify to be a document which means book in bound set is not the document but the information therein — The word ‘document’ as a verb means “a process of recording the details of an event”. [2024 CCJ 1 = 2024 PCrLJ 1 = 2023 LHC 4087]

Article 17: Competence and number of witnesses

17. Competence and number of witnesses. —

(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.

(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law, —

(a) 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, so that one may remind the other, if necessary, and evidence shall be led accordingly ; and

(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant.

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— “Promissory note” — Not required to be attested by witnesses — Scope — As per Section 4 of the Negotiable Instruments Act, 1881, a promissory note is required to contain four essential ingredients: (i) an unconditional undertaking to pay, (ii) the sum should be the sum of money and certain, (iii) the payment should be to or to the order of a person who is certain, or to the bearer, of the instrument, and (iv) the maker should sign it. If an instrument fulfils these four conditions, it will be called a promissory note, and the requirement of attestation of a document provided under Article 17(2)(a) of the Qanun-e-Shahdat, 1984, does not apply to a promissory note. [PLR 2024 SC 2 = PLD 2024 SC 45 = 2023 SCP 365]

Article 22: Facts necessary to explain or introduce relevant facts

22. Facts necessary to explain or introduce relevant facts.—Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

Illustrations

(a) The question is, whether a given document is the will of A.

The state of A’s property and of his family at the date of the alleged will may be relevant facts.

(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be libellous is true.

The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.

The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B.

The fact that, soon after the commission of the crime, A absconded from his house, is relevant under Article 21, as conduct subsequent to and affected by facts in issue.

The fact that at the time when he left home he had sudden and urgent business at the place to which he went is relevant, as tending to explain the fact that he left home suddenly.

The details of the business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent.

(d) A sues B for inducing C to break a contract of service made by him with A. C, on leaving A’s service, says to A “I am leaving you because B has made me a better offer”. This statement is a relevant fact as explanatory of C’s conduct, which is relevant as a fact in issue.

(e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A’s wife. B, says as he delivers it: “A says you are to hide this.” B’s statement is relevant as explanatory of a fact which is part of the transaction.

(f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.

— Identification parade — Scope — The identification parade is one of the methods of proof contemplated under section 22 of the Qanun-e-Shahadat Order, 1984 — It must be carefully conducted in order to achieve its main object i.e. to enable a witness to properly identify a person involved in a crime and to exclude the possibility of a witness simply confirming a faint recollection and impression — The process has to be carried out having regard to the exigencies of each case in a manner that is fair and does not indicate any collusiveness — It is merely a corroborative piece of evidence and holding of test identification parade is not mandatory — If the testimony of the witness qua the identity of the accused inspires confidence and the witnesses are consistent in all material particulars and there is nothing in the evidence to suggest that the latter had deposed falsely then in such an eventuality not conducting a test identification parade is not fatal to the prosecution’s case — The omission of salient features in a crime report is not necessarily a ground to discard a test identification parade — The test identification parade is, therefore, not required when the victim had identified the accused and his statement has been found reliable. [2025 SCLR 7 = 2025 SCMR 50 = 2024 SCP 369]

— Identification parade — Scope — Supreme Court highlighted the necessary guidelines set out in the form of executive instructions and judicial pronouncements and they are as follows;

• Memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened between the occurrence and the identification proceedings, should be viewed with suspicion. Therefore, an identification parade, to inspire confidence, must be held at the earliest possible opportunity after the occurrence;

• a test identification, where the possibility of the witness having seen the accused persons after their arrest cannot be ruled out, is worth nothing at all. It is, therefore, imperative to eliminate all such possibilities. It should be ensured that, after their arrest, the suspects are put to identification tests as early as possible. Such suspects should preferably, not be remanded to police custody in the first instance and should be kept in judicial custody till the identification proceedings are held. This is to avoid the possibility of overzealous I.Os. showing the suspects to the witnesses while they are in police custody. Even when these accused persons are, of necessity, to be taken to Courts for remand etc. they must be warned to cover their faces if they so choose so that no witness could see them;

• identification parades should never be held at police stations;

• the Magistrate, supervising the identification proceedings, must verify the period, if any, for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report about the proceedings;

• in order to guard against the possibility of a witness identifying an accused person by chance, the number of persons (dummies) to be intermingled with the accused persons should be as much as possible. But then there is also the need to ensure that the number of such persons is not increased to an extent which could have the effect of confusing the identifying witness. The superior Courts have, through their wisdom and long experience, prescribed that ordinarily the ratio between the accused persons and the dummies should be 1 to 9 or 10. This ratio must be followed unless there are some special justifiable circumstances warranting a deviation from it;

• if there are more accused persons than one who have to be subjected to test identification, then the rule of prudence laid down by the superior Courts is that separate identification parades should ordinarily be held in respect of each accused person;

• it must be ensured that before a witness has participated in the identification proceedings, he is stationed at a place from where he cannot observe the proceedings and that after his participation he is lodged at a place from where it is not possible for him to communicate with those who have yet to take their turn. It also has to be ensured that no one who is witnessing the proceedings, such as the members of the jail staff etc., is able to communicate with the identifying witnesses;

• the Magistrate conducting the proceedings must take an intelligent interest in the proceedings and not be just a silent spectator of the same bearing in mind at all times that the life and liberty of some one depends only upon his vigilance and caution;

• the Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line-up at the parade along with their parentage, occupation and addresses;

• the Magistrate must faithfully record all the objections and statements, if any, made either by the accused persons or by the identifying witnesses before, during or after the proceedings;

• where a witness correctly identifies an accused person, the Magistrate must ask the witness about the connection in which the witness has identified that person i.e. as a friend, as a foe or as a culprit of an offence etc. and then incorporate this statement in his report;

• and where a witness identifies a person wrongly, the Magistrate must so record in his report and should also state the number of persons wrongly picked by the witness;

• the Magistrate is required to record in his report all the precautions taken by him for a fair conduct of the proceedings and

• the Magistrate has to give a certificate at the end of his report in the form prescribed by CH.II.C. of Vol. III of Lahore High Court Rules and Orders.

The above measures are not exhaustive and, though these requirements are undoubtedly mandatory, at same time they are only illustrative of the precautions which a court of law must demand before the evidence offered through the test identification proceedings can be relied upon. [2025 SCLR 7 = 2025 SCMR 50 = 2024 SCP 369]

— Identification parade — Scope — Supreme Court highlighted the importance of assessing the ability and capacity of the eye witnesses, separately, to identify the accused in the circumstances of each case — It observed that this assessment also forms part of the identification evidence along with the test identification parade — It stressed that for the safe administration of justice, after the test identification parade the court must verify the credibility of the eye witness by assessing the evidence on the basis of the factors or ‘estimator variables’ eloquently described and highlighted by Supreme Court in Mian Sohail Ahmed v. The State (2019 SCMR 956) — Supreme Court (in the referred case) had drawn a distinction between the ‘system variables’ and ‘estimator variables’ — The former includes the test identification parade while the latter refers to factors attributed to the witness e.g. the distance from which the crime was witnessed, the level of stress likely to have suffered, the nature of weapon used, duration of the incident and characteristics of the witness etc — The process of identification of an accused has been held to involve two steps i.e the test identification parade and assessing the creditability of the eyewitness on the basis of the ‘estimator variables’. [2025 SCLR 7 = 2025 SCMR 50 = 2024 SCP 369]

Article 38: Confession to police officer not to be proved

— Confession before a police officer or a ranger’s official is inadmissible in evidence and is of no legal value. [2024 CCJ 28 = 2024 PCrLJ 284]

Article 46: Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

— Dying declaration — Scope — Statement of a person who is dead is relevant if it relates to the circumstance which resulted in his death and is admissible in proceedings wherein cause of his death is a matter in issue — A dying declaration, being the last words of a dying person, is an exception to the hearsay rule, may be admitted as evidence in criminal law — The rationale is that someone, who is dying or believes death to be imminent, would have less incentive to fabricate testimony — No doubt superior Courts have held that dying declaration is a weak type of evidence which requires deep scrutiny with great care and caution but on the other hand it is also a settled principle that a dying declaration can be considered as substantive piece of evidence if the Court is satisfied about its genuineness — Thus, dying declaration is required to be considered on case-to-case basis in view of the attending circumstances of each case and, if found genuine, may be relied upon against accused. [2024 CCJ 25 = 2024 PCrLJ 229]

— Dying declaration — Scope — Legal principles governing dying declarations, detailed. [2024 CCJ 25 = 2024 PCrLJ 229]

Article 79: Proof of execution of document required by law to be atteseted

— Proof of execution of document required by law to be attested — Scope — The requirement of Article 79 comes into play and such condition is attached only with a registered sale deed, but not to a document or instrument of understanding-acknowledgement. [2024 CLS 24 = 2024 CLC 195]

— Suit for cancellation of sale mutation — Proof of execution of document — Scope — Respondent (Plaintiff) challenged the authenticity of sale mutation to the extent of transfer of her share in property i.e. 18 Kanals — 02 Marlas on the ground that she neither sold the same to respondent (defendant) nor did she appear before any revenue official or impressed her thumb in this regard — Trial Court decreed the suit — Appellate Court, ultimately, dismissed the appeal — Validity — Being beneficiary, the petitioner was required to prove the execution of impugned mutation and in this background Ahle-Commission was examined and he in his cross-examination admitted that at the time of recording statement he had not mentioned that how much land was being sold by whom of the vendor — One of the vendors of suit mutation, appeared as defense witness and did not specifically refer the presence of respondent or receiving of amount by her — Similarly, marginal witnesses of the impugned mutation were examined as defense witnesses, and they neither verified their signature/thumb impression nor claimed to have signed/thumb impressed thereon — Hence, the proof of execution of impugned mutation, as required by the provisions of Article 79 of the Qanun-e-Shahadat, 1984, was missing in the instant case — Revision petition was dismissed. [2024 CLS 22 = 2024 CLC 181]

Article 121: Burden of proving that case of accused comes within exceptions

— Burden of proving that case of accused comes within exceptions — Scope — Initial burden is always on prosecution to prove the guilt of accused beyond shadow of reasonable doubt — In case of failure of prosecution in proving the guilt of accused, no burden would lie on accused to prove his defence plea, if any, however, when prosecution succeeds in discharging its onus of establishing the guilt of an accused through evidence then the accused is bound under Article 121 of Qanun-e-Shahdat Order, 1984 to prove his plea of defence. [2024 CCJ 25 = 2024 PCrLJ 229]

Article 129: Court may presume existence of certain facts

129. Court may presume existence of certain facts.— The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations

The Court may presume—

(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;

(d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence;

(e) that judicial and official acts have been regularly performed;

(f) that the common course of business has been followed in particular cases;

(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

(h) that, if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;

(i) that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it;

as to illustration (a).—a shopkeeper has in his till marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;

as to illustration (b).—A, person of the highest character, is tried for causing a man’s death by an act of negligence in arranging certain machinery, B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;

as to illustration (b).—a crime is committed by several persons. A, B and C, three of the criminals, are captured on the shop and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;

as to illustration (c).—A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person, completely under A’s influence;

as to illustration (d).— It is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;

as to illustration (e).—a judicial act, the regularity of which is in question, was performed under exceptional circumstances;

as to illustration (f).—the question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was Interrupted by disturbances;

as to illustration (g).—a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;

as to illustration (h). —a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;

as to illustration (i).— a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.

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— Withholding best evidence — Scope — If any party withholds the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it. [2024 CCJ 23 = 2024 PCrLJ 214 = 2022 LHC 6374]

— Suit for maintenance — Withholding best evidence — Scope — When a father makes it impossible to reach a just conclusion as to his earning or paying capacity, by mis-declarations or unfair disclosures as well as by hiding his sources then the Family Courts are empowered to draw adverse inference. [2024 CLS 17 = 2024 CLC 141 = 2023 LHC 5606]

— Court may presume existence of certain facts — Scope — Article 129 provides that ‘Court may presume’ which means that it is optional with the court to presume or not to presume because it is not like rebuttable presumption as of some referred under Article 90 to 95 and 99 — Such Articles use word “shall” for presumption of facts mentioned therein, therefore, if facts are not rebutted, shall be presumed as in existence — Presumptions under Article 129 are also not like irrebuttable presumptions (conclusive) as referred in Article 55 and 128. [2024 CCJ 1 = 2024 PCrLJ 1 = 2023 LHC 4087]

Article 132: Examination-in-chief, etc.

— Cross-examination — Right to cross-examine co-defendant’s witnesses — Scope — There is no specific provision in the Qanun-e-Shahadat Order, 1984, providing opportunity to a defendant to cross-examine a co-defendant; however having regard to the object and scope of cross-examination, it is settled principle of law that when a statement is made against the interest of a party to the proceedings, before that evidence could be acted upon, the party should have an ample opportunity to cross-examine the witness, who had given the evidence against him — It is only after such an opportunity is given and the witness is cross-examined then evidence becomes admissible.[2024 CLS 7 = 2024 CLC 57 = 2023 LHC 2639]

Article 150: Question by party to his own witness

— Question by party to his own witness — Scope — A witness can be declared hostile when he resiles from earlier statement or material part thereof which may also be in the form of joint pleadings or examination-in-chief — Permission to cross-examine the witness would also be granted where the statement is contrary to the evidence which the witness was expected to give. [2024 CLS 7 = 2024 CLC 57 = 2023 LHC 2639]

— Question by party to his own witness — Scope — The right to allow a party to cross-examine a witness of his own is discretionary with the Court and this discretion is to be exercised judiciously — Article 150 of the Qanun-e-Shahadat, Order, 1984, confers on the Court a wide discretion in allowing a party calling a witness to put such questions to him as might be put in cross-examination by the adverse party, where the evidence given by the witness is unfavourable to the party calling him, or is contrary to the evidence which the witness was expected to give — In such a case, the Judge should permit such statements to be tested by cross-examination if the evidence is to be relied upon — Undeniably, a party is bound by the evidence it produces i.e. party producing a witness is bound by whatever statement the witness makes however when an adverse statement is made by a witness the party producing the witness may get the witness declared hostile and seek permission from the Court to cross-examine him for getting rid of his adverse testimony — However, there is one exception that such permission should not be allowed by the Court if it reaches to the conclusion that the object of such cross-examination is to cover up the lacuna in the evidence. [2024 CLS 7 = 2024 CLC 57 = 2023 LHC 2639]