Q.S.

O_______________________________________________________________________ Sehar Turk

What is evidence? How does the competency of an eviden6 ce is determined? Also, define
its categories.
Ans: by the virtue of Article 2 (c), an evidence includes all the statements permitted or required
by the court from witnesses with regard to the matters of fact under inquiry; such statements are
known as oral evidence. And all documents produced for the inspection of the court such
documents are known as documentary evidence. The evidence also means the information with
regard to the coexistence of a fact in issue or collateral fact.
Competency test:
An evidence shall be admissible when it passes from the following hurdles:
1. It must be relevant to the fact in issue or a collateral fact: the relevancy of an
evidence to the fact in issue or a collateral issue, is purely question of law and thus to be
determined by the court. If a evidence is relevant it is not necessary that it must be
admissible.
2. Evidence must be admissible: However, the admissibility of the evidence is also to be
determined by the court of the law under the rules set out for the admissibility of an
evidence. An inadmissible evidence shall not be admitted in any case.
3. The evidence must have a weightage or in other words it must be solid enough to
prove or disprove a fact:
The following are the categories of the evidence:
1. Direct evidence: the direct evidence is one which is directly perceived by one’s sense of
sight, smell, listen and taste. The direct evidence directly proves or disproves a fact in
issue. For example: an evidence given by a witness in witness box on oath with regard to
the directly perceived fact either he saw, listened, heard etc. an evidence given by a
witness shall be admissible in evidence when it is not given on his opinion but the direct
perception of a fact.
2. Circumstantial evidence: the circumstantial evidence is one which is not directly
perceived by the senses. In addition, it cannot directly prove or disproves a fact in issue
or collateral fact. Accused’s motive, his presence at a particular time and a place,
forensic evidence of bodily evidence etc. possession of incriminating objects/weapons,
accused’s bad character etc. are the examples of the circumstantial evidence. It has been
said that the circumstantial evidence is considered as a chain and each piece of the chain
creates a link to the other and thus a solid evidence, however, if one piece is broke then
whole chain of evidence becomes of no use.
3. Real evidence: any object, statement, cctv footage, photographs, produced before the
court and which is directly perceived by the judge in the court is a real evidence. For
example; weapon used by the accused, produced before the court, clothes wore by the
victim r accused or used in relation to the offence and etc.
4. Documentary evidence: any written document tend to prove or disprove a fact in issue
is known as the documentary evidence. The documentary evidence maybe any Bank
receipts, accounts copy, police officer’s diary//notes
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5. Testimony: any evidence given by the witness in witness box, or in a statement read by
the court is known as testimony.
6. Hearsay evidence: Hearsay evidence is witness evidence of the fact that something is
true. In contrast to direct evidence, the witness will not have perceived it through their
senses but will have learned something from another. This ‘learning’ can be either verbal,
through another method of communication or through an actual document that they have
seen.
7. Original evidence: Original evidence is really the direct opposite to hearsay evidence in
the sense that it is an out of-court statement which is adduced not to prove its truth, but to
prove that the statement was made. Original evidence is not subject to the rules relating to
hearsay evidence, and thus is admissible.

What do you understand by a witness? And define the competency of the witness:
Ans:
Witness: a witness is a person who testifies in a fact issue/collateral fact to prove or disprove the
same.
ALLQURA’AN: O believers, be ever steadfast in standing up, for the sake of God, bearing
witness to justice (al-Ma'idah 5: 8)

Generally, every person is competent to be a witness however, by the virtue of Article 3 of the
QSO, there are certain qualifications and disqualifications are provided. Whereas, article 17
provides the number of witnesses required to prove a fact.
Qualifications of a witness:
1. Fulfills the criteria of being witness under Islamic Injunction.
2. Not prevented from understanding
3. Capability of giving rational answers.
Disqualifications:
1. Incapacity to be rational: In general if a person is unable to understand the question put
to them or give a rational answer, he or she is barred to testify as a witness to the suit.
2. Extreme old age: If a person has lost his or her consciousness due to extreme old age to
the extent that he or she is unable to understand the question put forward or to give a
rational answer, the testimony is inadmissible before the court.
3. Tender age: A minor is restricted to testify any fact before the court if he or she is not
yet able to understand the question put forward or to give rational answers to the said
questions. But if, minority or tender age has not created any obstacle to understand the
question or to give rational answers, the testimony will be counted as valid.
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4. Any bodily injury: If bodily injury is of such type that it renders the witness unable to
understand the question put to him or to give rational answers, the witness’s testimony is
inadmissible. Seeing, speaking and hearing inabilities are examples of such injury but if
such inability can be overcome then the witness becomes valid.
5. Any mental injury: A mental incapacity also puts a bar on the ability to testify any fact
in an issue.
6. Perjury: Perjury is an offence, it is to deliberately give false evidence before the court.
Any person who has been convicted for perjury is debarred from testifying any fact
before the court. Such person cannot be considered a trustworthy witness. However, if in
the opinion of the court said person is penitent, then the testimony can be accepted.
7. Females in Hadood laws: Under Hadood laws the testimony of a woman is
inadmissible.
Related case law:
It has been determined by the court in PLD 185 Lah 730 that only when the competence of a
witness is challenged, the court is required to determine such incompetence in accordance with
qualifications prescribed by the injunctions of Islam, as laid down in the Holy Quran and
Sunnah.
NazirHussain versus State (PLD 1984 Lah 509): Where the testimony of an eight year old girl
was accepted and she was considered to be a competent witness.

Rule to determine the competency of a witness according to injunctions of Islam:

The Islamic jurists have given the concept of Tazkiya al Shahood as a rule to determine the
competency of a witness according to the injunctions of Islam. According to them only this rule
contains all necessary instructions relating to the competency of a witness.
Concept of Tazkiya al Shahood:
Tazkiya al Shahood is defined as the “purgation(purification) of witness”.
How does the Tazkiya is conducted?
According to Fatawa-e Alamgiry there are two modes of conducting Tazkiya;
1. Open inquiry as to the competency of a witness; Open inquiry is conducted by asking
people to give their opinion by either raising hands or by oral testimony.
2. Secret inquiry into the competency of a witness. However, secret inquiry is conducted
through writing this method is called “masturah
Who may answer with regard to application of the rule:
Following persons can be taken into consideration while conducting Tazkiya;
1. Persons who are reliable;
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2. Persons who are familiar with the life and character of the witness whose competency is
being challenged.
Purpose of inquiry:
The purpose is to make an independent inquiry into the conduct of the witness.
What is the privileged to communications during marriage provided under QSO?
The word privileged communication means, immunity or advantage given by the law.
Under Black’s Law dictionary this term is defined in following words, “A communication that is
protected from forced disclosure”
The following are the persons given the privilege to communicate:
Article 5: Spouses: by the virtue of Article 5 of the QSO, the communication during marriage
has granted a privileged that no spouses shall be compelled to disclose any communication made
during the marriage.
However, the communication maybe disclosed with the consent of the spouse or his
representative in interest. Or when the civil or criminal litigation is been held.
Common law perception: Under the common law, the spouses were declared to be incompetent
witness as against each other and it was due to the fact that the society at that time believed in the
unity of spouses. This means that both the husband and wife were believed to be one entity, and
thus if they were allowed to testify they would just be protecting each other’s interests.
Islamic perception: The Islamic rule provided under this Article rest on the obvious ground that
the admission of such testimony would have a powerful tendency to disturb the peace of family,
promote domestic fights. And the communication during the marriage is considered as most
comfortable thing between spouses.
This article applies only to the extent of the communication but not any seen act (committed by
any of the spouses). Also, the communication hereunder referes to the direct communication
between the spouses.
Nature of Article 5: The prohibition enacted by the Article rest on no technicalities that can be
waived but is founded on a principle of high import which no court is entitled to relax.
Applicability: this article applies to the valid marriages not the void marriages. If the
conversation between the spouses took place during the marriage was intact, then the privilege
continues even when the relation has ended either by divorce or death of a spouse.
Who may representative in interest? Any person who has any kind of lawful interest into the
marriage is a representative in interest. Such as Children, parents, siblings the widow of the
deceased shall not be the representative in interest.
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Article 4: Judges and magistrate: under article 4 of the QSO, no judge or magistrate shall be
compelled to answer any question of his own conduct. Because the judge or a judicial magistrate
is a decision making and authoritative person who acts in his official capacity, so he shall not be
compelled to answer to any question with regard to his own conduct. However, he can be
compelled to answer on a special order of superior court also, he may be examined to other cases
occurred in his presence when he was acting in his official capacity.
How to determine the competence and number of witnesses to testify?
Ans: by the virtue of article 17, the competence of the witnesses is to be determined according to
injunction of the Islam as laid down in the Holy Quran and Sunnah.
Number of witnesses required in different maters:
1. Financial or future obligation matters: by the virtue of Article 17 (2) a, and Ayat
Number 282 of Surat -Al-Baqrah, when a matter is related to either financial obligation
or future obligation, it is ordered to write down the information related to that matter, and
bring to witness two witnesses from your men and if two men are not available then one
man and two women (so if one forgets the other reminds.)
it is commonly considered as unjust to the women however, Allah is the one who knows
the truth of the things, because biologically woman is considered is more vulnerable than
man because of her emotional stress, menstrual cycle and other factors.
2. Other matters: whereas, in other matters the condition if one man and two women is not
required. In other matters, one woman can be a competent witness and so a man.
Evidence in hudood law: evidence must be from a confession by the accused, or at least two
Muslim adult male witnesses who are `tazkiyah-al-shuhood`, (truthful and non-sinners).

What do you understand by accomplice? And what s evidentiary

value of an accomplice?
Ans:
Definition of Accomplice in Black’s law dictionary:
A person who knowingly, voluntarily, and with common intent with the principal offender unites
in the commission of a crime.

Evidentiary value of Accomplice:

Article 16:
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An accomplice is a competent witness against his co-accused person. However, in cases of

offence punishable with hadd, where the testimony of the accomplice against the accused is
incompetent. If the accomplice gives an uncorroborated evidence means not supported by other
evidence, and on the later stage the accused is convicted, so the conviction of the accused cannot
be held illegal on the ground that the testimony of the accomplice was uncorroborated.
Accomplice's evidence is not worthy of credibility under the Islamic Laws. it can be relied upon
only when it is corroborated/supported evidence by other evidence. An accomplice is not a
competent witness in offences punishable with Qisas and Hadd and his testimony uncorroborated
even in cases of ta'zir will be illegal. Evidence of approver shall also not be accepted without
corroboration. Held in PLJ 1991 FSC 139 Haider Hussain v. Pakistan.
Illustration (b) of Article 129:
That an accomplice is unworthy of credit, unless he is corroborated in material particulars.
Conflict between article 16 and illustration b of article 129 of QSO:
Article 16 allows the court to testify the accomplice against the accused person and the
accomplice shall be competent thereof. On the other hand, illustration b of article 129 states that
the testimony of an accomplice is not credible unless he is corroborated in material particulars.
On the same subject in the case of Federation of Pakistan vs Muhammad Sham Muhammadi,
Advocate (1994 SCMR 932), the conflict between Article 16 and Article 129 (b) was also
observed by the Supreme Court of Pakistan, which held: “17. We may observe that Article 16
and illustration (b) of Article 129 of the Order are apparently in conflict. In such a case the Court
is required to place such construction, which may harmonize the above two provisions. Though
by virtue of the above Article 16 it is permissible that the Court may, convict an accused person
on the basis of uncorroborated evidence of an accomplice, but the Court as a rule of prudence
and because of above illustration (b) to Article 129 of the Order insists upon for having the
testimony of an accomplice corroborated in material particulars, and, thereby harmonize the
above two provisions.

On what grounds a witnesses cannot be excused from answering?

By the virtue of article 15 of the QSO, no witness shall be excused from answering in any mater
in a civil or criminal litigation on the ground that the answering to that question may criminate
him directly or indirectly, or cause a penalty against him or cause the forfeiture of his property.
Article 15 provides no privilege to the witness as not to answering or remain silent.
However, if a witness is compelled to answer, then he shall not be prosecuted nor the same
statement shall be used as an evidence against him in any other litigation.
But if a person voluntarily gives evidence then he may be prosecuted.
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Article 15 is the exception of article 13 of the constitution. Article 13 of the constitution provides
that; no person shall be compelled to be a witness against himself. However, article 13 applies to
any proceedings which maybe out of the court proceedings like police investigation etc. whereas
article 15 applies on court proceedings only. Moreover article 13 applies to any person whereas
article 15 applies to the witnesses specifically. Article 13 deals with the examination stage
whereas the article 15 deals with the cross-examination stage.