Law of Evidence — Qanun-e-Shahadat Order 1984
The law of evidence in Pakistan is contained in the Qanun-e-Shahadat Order 1984 (P.O. No. X of 1984), promulgated by General Zia-ul-Haq to replace the Evidence Act 1872. Although the QSO largely re-enacts the 1872 framework, it introduces Islamic dimensions — notably Article 17 (number and competence of witnesses, with gendered rules for financial matters), and modified provisions on Hudood evidence.
Article 2(1)(c) of the Qanun-e-Shahadat Order 1984 defines 'evidence' as including (i) all statements which the court permits or requires to be made before it by witnesses — oral evidence; and (ii) all documents produced for the court's inspection — documentary evidence.
Structure of the QSO
| Part | Articles | Subject |
|---|---|---|
| I | 1–4 | Preliminary, definitions |
| II | 5–71 | Relevancy of facts |
| III | 72–100 | Proof — oral and documentary evidence |
| IV | 101–129 | Production and effect of evidence |
| V | 130–166 | Witnesses, examination, public documents |
Relevance and admissibility
The fundamental rule: only relevant facts are admissible. Relevance is governed by Articles 18 to 71. Admissibility is a question of law decided by the judge; weight of evidence is a question of fact.
Major heads of relevance:
- Article 21 — facts forming part of the same transaction (res gestae).
- Article 22 — facts which are the occasion, cause or effect of facts in issue.
- Article 26 — things said or done by conspirator in furtherance of common design.
- Article 36 — when facts not otherwise relevant become relevant if they support or contradict an opinion of a witness, etc.
- Article 38 — confession to police officer not provable against accused.
- Article 39 — confession in police custody, only if made in immediate presence of magistrate, is provable.
- Article 40 — how much of an information from accused in custody may be proved (discovery rule).
- Best evidence rule — Articles 72–78: primary evidence preferred over secondary.
- Hearsay — generally inadmissible (Art. 71), with exceptions: dying declarations (Art. 46), admissions (Arts. 30–35), business records, public documents.
- Burden of proof — Articles 117–129; onus on party who would fail if no evidence given.
- Article 17 — competence and number of witnesses; financial matters require two men or one man and two women.
- Article 161 — privilege between husband and wife.
- Article 164 — admissibility of evidence obtained by modern devices (audio/video, electronic forensics).
Admissions and confessions
- Admission — statement, oral or documentary, suggesting an inference as to a fact in issue (Arts. 30–35).
- Confession — admission of guilt or facts inferring guilt by an accused person.
- To police officer — Art. 38 — inadmissible.
- In police custody — Art. 39 — inadmissible except in presence of magistrate.
- Judicial confession under § 164 CrPC, after due caution, is admissible.
- Discovery under Art. 40 — that part of accused's statement which distinctly leads to discovery of a fact is admissible.
The leading case Pulukuri Kottaya v. Emperor AIR 1947 PC 67 still defines the scope of the discovery exception.
Witnesses and their examination
- Competence — Article 3: all persons competent unless court considers them unable to understand and answer.
- Examination-in-chief, cross-examination, re-examination — Articles 132–137.
- Hostile witness — Article 150 — leading questions and cross-examination by the calling party permitted.
- Impeachment of credit — Article 151.
Opinion evidence
- Expert opinion — Article 59 — on foreign law, science, art, handwriting, finger impressions.
- Identification — by handwriting (Art. 60), finger impressions, DNA (admitted under Art. 164 and Anti-Rape Act 2021).
For QSO papers, the Article 17 controversy is a magnet question. State the rule (two males or one male and two females for financial matters; one male or one female for other matters), discuss the Federal Shariat Court jurisprudence, and the Council of Islamic Ideology view. Always distinguish competence (Art. 3) from compellability and from credibility.
Documentary evidence
A document is proved by primary evidence — the document itself — unless secondary evidence is admissible under Article 76 (e.g. original lost, in possession of opponent, public document, voluminous records). Public documents (Art. 85) include records of public officials, court records and statutes; private documents are all others.
Article 100 lays down presumptions about documents thirty years old; Article 89 governs proof of execution of documents required by law to be attested (e.g. wills).
Burden of proof
Articles 117 to 129 distribute the burden. The general rule (Art. 117): whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. The burden of proof in criminal cases lies on the prosecution beyond reasonable doubt — a principle reiterated in Ghulam Qadir v. State 2008 SCMR 1747.
Modern evidence and electronic records
Article 164 permits the court to allow any evidence that may have become available through modern devices or techniques. This forms the gateway for DNA evidence, CCTV footage, call data records and digital forensics, supplemented by the Prevention of Electronic Crimes Act 2016 and the Electronic Transactions Ordinance 2002.