THE

QANUN-E-SHAHADAT ORDER,
1984
(10 OF 1984)
[28th October,19884]

No.F.17(2)/84-Pub.—The following Order,made by the

President on the 30th Muharam-ul-Haram 1405,26th October,
1984,is hereby published for general information:一
WHEREAS it is expedient to revise,amend and
consolidate the law of evidence so as to bring it in conformity witr
the injunctions of Islam as laid down in the Holy Quran and
Sunnah;
NOW,THEREFORE,in.pursuance of the Proclamation of
the fifth day of July,1977,and in exercise of all powers enabling
him in that behalf,the President is pleased to make the following
Order:一
COMMENTS
Preamble.—The Qanun-e-Shahadat Order is a revising,amending and
consolidating statute.The Evidence Act,1872,was revised,amended and
consolidated to bring it in conformity with injunctions of Islam as laid down
in Holy Quran and Sunnah.The Qanun-e-Shahadat Order was not intended to
be a mere fragmentary enactment but a consolidating statute embodying
rules of evidence as communicated by the Holy Quran and Sunnah,repealing
all rules of evidence other than those saved by this enactment.

PART I
RELEVANCY OF FACTS

CHAPTER I
PRELIMINARY
1. Short title,extent and commencement.—(1)This Ordei
may be called the Qanun-e-Shahadat,1984.
2 QANUN-E-SHAHADAT [S.1

(2) 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 of jurisdiction, but does not apply to proceedings
before an arbitrator

(3) It shall come into force at once.

COMMENTS

Judicial proceedings.—The Qanun-e-Shahadat also applies to all

judicial proceedings in or before a Court.The term“judicial proceedings”is
not defined by the Act but according to section 4(m)of the Code of
Criminal Procedure,it "includes any proceeding in the course of which
evidence,is or may be legally taken on oath".A proceeding in which only
administrative duties are discharged is not a judicial proceeding within the
meaning of this Article.

Application of Qanun;e-Shahadat to Courts-Martial.—Object and

scope of Qanun-e-Shahadat,bei ng adjective law is compendium of rules of
procedure/practices according to which Court is to record evidence of parties;it
prescribes rules/methods with regard to recording of evidence of parties.?
Oanun-e-Shahadat is applicable to Criminal Law(Special Provisions)Ordinance,
1968.3 It is also applicable to Sindh Rented Premises Ordinance,1959,4 and
West Pakistan Urban Rent Restriction Ordinance,1959.The Qanun-e-Shahadat
Order applies to proceedings in Courts Martial.Courts Martial however,have to
be distinguished from Martial Law Courts.The latter are created by the will
of the Commander appointed to govern a territory or an army,either in time
of war,or when due to turmoil or disturbed conditions prevailing at the
time,the civil Government comes to an end and extraordinary steps are taken to
maintain public order.Proceedings of Martial Law Courts are executive in
character and are defensible by necessity alone.⁶-~—

Tribunals.—The Qanun-e-Shahadat has been made applicable

to proceedings before a tribunal or other authority exercising judicial
or quasi-judicial powers of jurisdiction.Where,however,application of
Qanun-e-Shahadat Order is expressly barred by an enactment principles thereof

1.15 Mad.138.
2.Pi.D 1996 Lah.512.
3.PLD 1987 Quetta 141.
4.1990 MLD 1711;1995 CLC 1441.
5.1993 CLC 2146.
6.Muhammad Nawaz v.Crown PLD 1951 FC 73.
S.2] 3
PRELIMINARY

would be applicable.!Qanun-e-Shahadat is not strictly applicable to

Family Court,?²Labour Court and Wafaqi Mohtasib.:
Arbitrators.—The Qanun-e-Shahadat does not apply to
proceedings before an arbitrator,and,as a rule,no award given by him can be
set aside on the ground that he has not acted in strict compliance with the rules
of evidence.4 The arbitrator should,however,observe the principle if not the
letter of the rules laid down in the Qanun-e-Shahadat Order.He must conduct
the proceedings in accordance with the rules of natural justice,i.e.he must
act honestly and impartially.'
2.Interpretation.—(1)In this Order,unless there is anything
repugnant in the subject or context,一

(a) “Court”includes all Judges and Magistrates,and all

perso ns,except arbitrators,legally authorized to take evidence;

(b) "doc ument"means any matter expressed or describec

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;

Mustrations
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.
(c)
“evidence”include s-
(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;

1.2005 PLC (CS)1015.

2.2009 MLD 766.
3.1993 PLC 374;2001 YLR 1544;PLD 2001 Kar.203,
4.11 Mad.85.
5. AIR 1944 Cal.127.
 4 QANUN-E-SHAHADAT [S.2

(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.

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;

(c) that a man said certain words,is a fact;

(d) · that a man holds a certain opinion, has a certain intention,acts in goo
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"fact 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;and

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.
S.2] PRELIMINARY 5

(4) A fact is said to be proved wheng 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 this 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 facts 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 this purpose of disproving it.
COMMENTS
This Article is an interpretation clause.

Court.—The definition of Court is not exhaustive and is framed.only

for the purposes of the Act.The important characteristic of a Court is the power
to administer oath to persons examined before it in the course of Judicial
proceedings.'A Commissioner,appointed under Order XXVI,C.P.C.,being
legally authorised to take evidence,is a Court.Except arbitrators all
forums legally empowered to record evidence have been defined as Courts.²

Classification of evidence.—There are three methods by which a fact

may be proved in a Court,yiz.(1)by the oral evidence of witnesses,(2,)by
documentary evidence,that is,by the production of documents,and(3)by
material evidence,that is,by the production of a material object other than a
document.

Fact.—Facts fall in two clauses:(a)physical and(b)psychological,

that is,those which can and those which cannot be perceived by the senses.Of
facts which cannot be perceived by the senses,intention,fraud,good faith and
knowledge,may be given as examples.Psychological facts are as much

1.36 IC 171.
2.2000 YLR 2724.
3.Reports of the Select Committee on Evidence Act,1872.
6 QANUN-E-SHAHADAT [S.2

admissible as physical facts for the purpose of proving or disproving the

matter to which they relate.The Order gives five illustrations to the definition
of fact. Illustrations(a),(b)and(c),are illustrations of physical
facts,whereas illustrations (d)and (e)relate to psychological facts.

Relevant and admissible.—Relevancy and admissibility do not

strictly denote the same thing.“Relevant”means what is logically-probative;
“admissible”what is legally receivable in a Court of law.As Wigmore says,
“admissibility signifies that the particular fact is relevant and something more,
that it has also satisfied all the auxiliary tests and extrinsic policies laid down.by
law.”Under Qanun-e-Shahadat Order, however,all relevant facts are
admissible,I

Facts in issue.—See notes to Article 18.

Evidence.—Evidence being a comprehensive word,included

statement of witnesses,parties and documents which were produced in a court or
judicial forum to prove or disprove the case.Evidence,as the terms used in
judicial proceedings,means the facts,testimony,and documents which may be
iegally received in order to prove or disprove the facts under enquiry.?

Admission in written statement is not 'evidence'in the case³and

affidavit by itself would not be taken to be evidence.4

Documentary evidence is divided into(a)primary and(b)secondary.

Primary evidence is defined in Article 73.It means the original document itself
produced for the inspection of the Court.Secondary documentary evidence is
evidence of the contents of a document given in some other manner than by the
production of the original document.Article 74 states the kinds of secondary
evidence that are admissible under the Qanun-e-Shahadat.

Direct and circumstantial evidence.—Evidence is classified into

two kinds,namely"direct"and"circumstantial".Direct evidence is the testimony
of a witness as to the existence or non-existence of a fact in
issue.Circumstantial evidence is the proof of collateral circumstances from
which the existence of the fact in issue may logically be inferred.

Fact disapproved.—Where after considering the matter,the Court

either believes that the fact does not exist or considers its non-existence so
probable that a prudent man ought to act upon the supposition that the fact does
not exist,such fact is said to be disapproved.5

1.(1889)3 CWN 268.

2.Phipson,Ev.,7th Ed.,1.
3.1993 CLC 234.
4.1993 MLD 1217.
5.2001 MLD 159.
S.2] PRELIMINARY 7

Proof in civil and criminal cases.—The rules of evidence for civil

and criminal cases are,in general,the same;but there is a difference in the
degree of proof required in civil and criminal cases.Whereas in a civil case
a preponderance of probability is sufficient for the decision of a case,in
criminal prosecutions the guilt of the prisoner must be established beyond
reasonable doubt.I

Where facts are not proved by direct evidence,but their existence

is inferred from the proof of other facts,the facts are said to be
presumed,i.e. taken for granted until contrary is proved,by the opposite-party.
Presumptlon.-Presumptions may be classified conveniently into (i)
presumption,of facts and(il)presumption of law.
Presumptions of fact are merely inferences of the existence of a fact
drawn from the proof of other facts in the case.A very familiar presumption of
facts in criminal cases is provided by illustration(a)to Article 129.On a charge
of stealing goods or receiving them,knowing them to have been stolen,the fact
that they were found in the accused's possession soon after the theft raises a
presumption of the accused's guilt,in the absence of any reasonable explanation
from him as to how he came by them.

Presumptions of law differ from presumptions of fact in that they are

inferences which the Courts are bound,as a matter of law,to draw.

Presumption however strong cannot take the place of evidence.?

Conclusive or irrebuttable presumptions are inferences which the law
makes so peremptorily that it will not allow them to be displaced by any contrary
proof,however strong.A well-known instance of this kind of presumption is to
be found in section 82 of the Penal Code which provides that an infant
under seven years of age is incapable of committing an offence.

Rebutable presumptions,on the other hand,are those the effect of

which may be destroyed by evidence to the contrary but are conclusive in the
absence of such evidence.
May presume.—The cases in which a Court may presume a fact
covers all the rebuttable presumptions contained in Articles,96,97,98,100 and
129.Under these Articles the Court has the discretion to raise the presumption
or to call for the confirmatory evidence of it,as circumstances require.

Shall presume.—In cases in which a Court shall presume a fact,no

option is left to the Court but it is bound to take the fact as proved unless and
until evidence is given to rebut it.Articles 90 to 95 and 121 deal with these
presumptions,

1.199 MLD 1681.

6
2.198 MLD 4202.
9
8 QANUN-E-SHAHADAT [S.2

Clause(3)of the Article covers what are known under the English law
as irrebuttable presumptions of law.These are simply indisputable propositions
of law and no evidence can be given to contradict them.Articles 55,127 and
128 deal with these presumptions.

Rules of evidence in civil and criminal cases.—The rules of evidence

for civil and criminal cases are,in general,the same.But some provisions in the
Qanun are peculiar to criminal cases and others,peculiar to civil cases.There is,
however,a marked difference as to the effect of evidence in civil and criminal
cases.Thus,whereas in a civil case a mere preponderance of probability is a
sufficient basis of decision,in a criminal case persuasion of guilt must amount to
“such a moral certainty as convinces the minds of the tribunal as reasonable men
beyond all reasonable doubt.In a criminal case before the Court is called upon to
convict a person it has to satisfy itself that possibility of his innocence is ruled
out,but in civil case all that is necessary to insist upon is that the proof adduced
in a support of a fact is such that should make prudent man to act upon the
supposition that it exists.Where,there is no such moral certainty,and there is
reasonable doubt as to the guilt of the accused,the benefit of the doubt is given
to the accused.It is better that ten guilty men should escape,than that one
innocent man should suffer,and,acting on this principle,Courts always insist on
a much higher degree of proof of criminal cases than in civil cases.The rule as
stated above is nowhere enacted in the Qanun-e-Shahadat but is a rule of
prudence founded on public policy as the consequences of an errone ous
conviction are much more serious both to the accused and society than the
consequence of an erroneous acquittal.Greatest possible care should be taken by
the Court in convicting an accused.Unlike criminal cases,in a civil case it
cannot be said that the benefit of every reasonable doubt must necessarily go to
the defendant.As to the degree of certainty required a criminal case where the
burden of proof is on the accused.

Prosecution in criminal cases was required to prove guilt to accused

beyond reasonable doubt while in civil cases proof adduced in support of a fact
should be such as to make a prudent man accept the same.~~~

1.1991 SCMR2042;1988 MLD 1640;PLD 1994 Pesh.10.