Qanoon-e-Shahadat Order 1984

  1. S. 29 APC and Art.2 (B) Quanun-e-Shahadat — Document — Definition of — Video film also comes within the ambit of document — It can be considered as a piece of documentary evidence. Arshad Mahmood v. Raja Muhammad Asghar and another 2008 SCR 345 (G)
  2. S. 46-A dying declaration is relevant even if the person is not under expectation of death. Misri  v. State  1998 SCR 337 (B)
  3. S. 76 (A) Photo copies of the documents were compared with the original documents during the examination of the witness. Objection raised by the appellant-respondents about admissibility — Appeal taken to the High Court failed- High Court took the view that the District Judge should have recorded a note that he had compared the photo copies with the original documents-since the original documents were available and the procedure laid down by High Court was correct no question of interference in the impugned judgment arises — It is the duty of the counsel who examines the witness to follow the correct procedure while exhibiting the documents. If any deficiency is left the petitioner would have a right to raise the argument that a document has not been properly exhibited. Petition dismissed. Azad Govt. & others  v. M/s Inter Construct & others 1995 SCR 367 (A)
  4. —Section 100—30 years old document—presumption of– None of the attested witness alive—original document produced form proper custody, the same would be presumed to have been
  5. executed properly. Arshad Mehmood v. Farzand Bibi & others 2019 SCR 622 (A) PLD 2005 SC 455 rel
  6. Section 102 and 103 — No evidence could be given in proof of terms of disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of Evidence Act — The basic requirement of law is to see the terms incorporated in the documents. M. Afzal v. Ali Akbar 2001 SCR 511 (C)
  7. S. 114 — Estoppel — The party who acts in particular manner and causes the other party to believe the same is estopped to deny the fact but his legal representatives and any person claiming through him is also estopped to deny such fact. Ali haider Khan v. M. Aziz Khan 1993 SCR 170 (B)
  8. S. 114 — Estoppel — It is well settled that there is no estoppel against law — If at any stage an illegality is found it can always be pleaded — Apart from that the argument based on estoppel fails to take note of the fact that principle of estoppel is only applicable if a declaration, act or omission is acted upon by the other party as is evident from phraseology of Article 114 of the Qanun-e-Shahadat. Shabir Kayani v. Mushtaq Ahmad Gardazi and 4 others 2000 SCR 557 (A)
  9. S. 115 — A person who admits the opposite party as owner or allotted of an immovable property cannot be later on permitted to take a contrary stand- A tenant of immovable property cannot be permitted to deny the title of the land lord later on. Bashir Ahmed v. Additional Custodian 1993 SCR 160 (B)
  10. — article 2(1)(c) — term “evidence” — defined — According to Article 2(1)(c) of the QSO, unless there is anything contradictory in the subject matter or context, the term “evidence” encompasses all statements made by witnesses before the court in relation to factual matters under consideration, known as oral evidence, as well as any documents presented for the court’s examination, known as documentary evidence. Hussain Nazi v. The State & another 2023 SCR 356 (H)
  11. article 3 — witnesses — evidence of murder case — all persons competent to testify unless Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions by tender years, extreme old age; disease whether of body or mind or any other cause of same kind — the evidence of tender age/ minor is admissible if he has understanding of questions put to him and able to answer them rationally — minor’s statement shows that he was intelligent enough and able to understand what he was saying — statement cannot be discarded mere on ground of tender age. Muhammad Ghazanfar v. M. Matloob & another 2023 SCR 115 (A) 1987 PCr.LJ 1728, 1995 PCr.LJ 803 & 2009 SCMR 1428 ref.
  12. — article 3, Chapter II — competency of child witness — subject to satisfaction of Court — on basis of capacity of witness regarding appreciating the difference between truth and falsehood – — Article 3, Chapter II, of Qanun-e-Shahdat, 1984, deals with the competency of the witness. It lays down the main test of competence of a witness; which is capacity to understand and rationally answer the questions put to him and such competence of that witness is subject to the satisfaction of the Court in regard to the injunctions of Holy Quran and Sunnah and other aspects; as per provisos of same provision. Under this Article, a child witness falls under a competent witness as no specific age has been provided under law which could determine the question of the competency of a child. Such evidence depends upon the capacity and intelligence of the child to understand the questions put to him and his/her capacity of appreciating the difference between falsehood and truth as well as his/her capability to give rational answers. Although, no hard and fast rule has been set to ascertain whether a child is a competent witness or not, because it is absolute matter of the facts and circumstances of each case. Habib Hussain Shah v. State & others 2023 SCR 442 (B)
  13. Art. 3 proviso (iii) — The Court is bound to determine the competence of a witness in accordance with the qualification prescribed by injunctions of Islam as laid down in the Holy Quran and Sunnah for a witness. Hakam Deen v. State & 16 others 2005 SCR 314 (T)
  14. Article 3, proviso (iii) — Accused was charged for murder under section 302, P.C. — Court is bound to determine the competence of a witness in accordance with the qualification prescribed by injunctions of Islam as laid down in Holy Quran and Sunnah for a witness — Article 17 provides procedure of competence of a person to testify and number of witnesses gender-wise. Hakam Deen v. State and 15 others 2006 SCR 120 (S)
  15. —Art. 3—child witness—-testimony of—low profile witness— capacity and intelligence of witness—under Art. 3 all persons are competent to testify excepting those, whom the Court considers that they are prevented from understanding the question put to them or giving rational answers to them by tender years— it speaks of extreme caution regarding testimony of witnesses of tender age— it is generally believed that boys of this age will either give 100% accurate testimony or testify based on their own ideas Syed Kamran Hussainshahv. State & another 2022 SCR 365 (A) PLD 2020 SC 146 ref
  16. Art. 16 and Art.43. Bail grant of — Non-application of Article 16 read with Article 43 of the Quanoon-e-Shahadat Order and its legal weight and value are in the domain of trial Court while deciding the case against appellant and others after conclusion of trial when the case is finally heard on merits. Ashfaque Hussain v.  The State & another 2010 SCR 300 (E)
  17. Article 17 — When Islamic Penal Laws Act, 1974 was enforced in Azad Kashmir, Article 17 of “Qanoon -e-Shahadat” was not on the statute book of Azad Kashmir, the same was adapted in the year 1988 —Thus, section 26 of the Islamic Penal Laws Act cannot be interpreted to mean that the principle that the statements of the two female witnesses should be examined jointly is applicable to a criminal case — Female witnesses in a criminal case are to be examined as has been laid down in “Qanoon-e-Shahadat”. Muhammad Sarwar and another v. The State 2000 SCR 435 (E)
  18. Article 17 — Provides the procedure of competence of a person to testify and number of witnesses required in any case, that it shall be determined in accordance with the injunctions of Islam as laid down in Holy Quran and Sunnah — Sub Section (2) of Article 17 — Provides number of witnesses gender wise — Special law relating to Qisas and Hadood in AK Known as the AJ&K Islamic Penal Laws Act, 1974, provides the numbers of witnesses in Hadood and Qisas cases under section 26 of the Act, which overrides all other laws — Two major Muslim witnesses required to prove the cases of Hadood and Qisas — The Court is bound under sub-section (2) of S.26 to conduct “Tazkia”(Purgation) of the witnesses in Hadood and Qisas cases. Hakam Deen v. State & 16 others 2005 SCR 314 (U)
  19. —Article 17, clause 2(a)—competence of a person to testify and—— in the matters pertaining to financial or future obligation, 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. Nazir Hussain Shah & others v. Muhammad Saeed Shah 2017 SCR 1593 (A)
  20. —Articles 18 and 19—Azad Penal Code—Section 295-B– -offence of defilation of copy of Holy Quran—principle of ‘res-gestae’—admissible in evidence because some of the facts are hearsay but relevant to the facts in issue. Muhammad Naseem vs State & another 2018 SCR 417 (A)
  21. —Articles 18 &19 —murder case—Circumstantial evidence—principle of res-gestae—applicability — under Articles 18 & 19 pre and post events and facts forming the part of a transaction which though not in issue in strict sense but so connected that the fact in issue has to form part of same transaction, are relevant and under the principle of administration of criminal justice and the principle of law such evidence is admissible. Yasmin Ashraf &others vs Abdul Rasheed Garesta &others 2018 SCR 661 (E) —Arts. 18 & 19—hearsay evidence—admissibility of— principle of res-gestae —murder case—eye witnesses—remained consistent on the material propositions, however some minor discrepancies are found which do not throw out the whole case—witnesses narrated the pre and post acts constituting the commission of offence spontaneously without any inordinate delay—Held: such type of evidence is covered under the principle of res-gestae—under Articles 18 & 19 some facts or events which may be hearsay but related to the alleged incident, are admissible in evidence. Shahzad & others vs Rana Qamar & others 2018 SCR 727 (B)
  22. Arts. 29, 40 — See AJ&K Interim Constitution Act, 1974, S. 42. Munawar Hussain and 2 others v. Imran Waseem and another 2013 SCR 374 (C)
  23. Article 40 — offence of decoity — recoveries of stolen property on the pointation of accused — argument that recoveries are fake—No one else except the accused were having knowledge of the keeping up the stolen property. Information has been provided by the convict accused during the investigation and consequently the stolen property was recovered on their pointation.  Held: the information of the accused under the provision of Article 40 is very much relevant and admissible in evidence. Ahsaan Azeem v. The State & 2 others 2014 SCR 735 (D)  2000 Cr.L.J. 187 rel.
  24. Art.40 — Murder case — appraisal of evidence — Qanun-e-Shahdat order (X of 1984) Art. 40 — recovery of dead-body — based on the disclosure made by the accused while in the police custody —, who was the only person knowing about it — The dead-body was duly identified by the legal heirs of the deceased. Held: in such like situation, death penalty can safely be imposed. M. Babar v. State through Advocate General 2014 SCR 1585 (H) 2009 SCMR 1440, rel.
  25. Art.40 — The disclosure made by the accused while in the police custody is admissible if in consequence thereof something relating to the commission of the crime is recovered while applying the conditions laid down by Article 40 of the Qanoon-e-Shahadat Order, 1984. Muhammad Babar v. State through Advocate General 2014 SCR 1585 (A) Muhammad Pervaiz & another vs. State & another (Criminal appeal No 2 of 2012 decided on 24.4.2014). rel.
  26. — Article 59 read with Article 164 and Article 46-A— Murder case—evidence—made available through modern devices or techniques—admissibility of— compact disc (CD) and evidence collected through the electronic devices is admissible under Article 46-A— Article 46-A is not adapted in AJK—however under Article 59 read with Article 164, the Courts after considering appropriate, may allow the evidence which became available because of modern device or techniques—Held:, the list of cell phone calls is admissible in evidence. Yasmin Ashraf &others vs Abdul Rasheed Garesta &others 2018 SCR 661  (H)               
  27. Arts. 70 & 72 — Oral and documentary evidence — Value — Documentary evidence was always considered to be better evidence as compared to the oral evidence — Oral evidence, could not exclude the documentary evidence. Muhammad Karim v. Kala and 4 others 2012 SCR 404 (D)   
  28. Article 71 — Oral evidence — This Article applies to oral evidence which means the evidence which is recorded by the Court and does not apply to first information report lodged with the police. Muhammad Ramzan v. The State 1996 SCR 336 (C)
  29. Art. 71 — Hearsay evidence — Admissibility of — Complainant was not present at the place of occurrence — When he appeared as a witness before the Court deposed that the accused fired the bullet which hit Yasir (deceased) — He stated that it was told to him by his wife — Therefore his evidence is hearsay evidence — Whether his wife also stated before the Court that she narrated the whole story to her husband — If she would have deposed as such only then the evidence of the complainant would have been admissible as provided in Art.71 of Qanun-e- Shahadat — She nowhere stated that she told or narrated the story to her husband — Thus the evidence of the complainant was not admissible — Article 71 conveys that only the direct evidence is admissible and it is mandatory to rely upon direct evidence and indirect evidence is not admissible. Arshad Mahmood v. Raja Muhammad Asghar and another 2008 SCR 345 (B) 1996 P.Cr.L.J.1076, PLD 2002 Kar.152and PLJ 1986 S.C.497rel.
  30. Art. 76, Clause (I) — Secondary evidence — in case of non-availability of original document, forming part of the record the certified copy shall be admissible as a secondary evidence. Tariq Pervaiz & 5 others v. Custodian & 14 others 2016 SCR 557 (A) PLD 1968 SC (Pak) 241, rel.
  31. Art. 78 — Contains that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting must be proved. Muhammad Arif  v. Muhammad Boota & 4 others 2007 SCR 363 (B) PLD 1973 AJK 11 rel.
  32. Art. 79 — Agreement-to-sell — Proof of execution — Art. 79 provides the mode for proving execution of a document — Where a document is required by law to be attested it shall not be used as evidence unless two attesting witnesses have been called for proving its execution. Muhammad Arif  v. Muhammad Boota & 4 others 2007 SCR 363 (A)
  33. Art. 79 — Proof of a document — No doubt a copy of ‘Nikahnama’ was produced but neither the witnesses of Nikah nor the Registrar Nikah was produced as a witness — It was enjoined upon the plaintiff to produce at least one marginal witness of the deed for proving the same — Held: The plaintiff has failed to prove the execution of Nikahnama. Mst. Dr. Naseem Firdous v. Mst. Anwar Bi & 7 others 2007 SCR 310 (A)
  34. Art. 79 — Clearly contains that where a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to process of Court and capable of giving the evidence. KHAN M. BADAR v. Mst.ROSHNI & 43 OTHERS 2008 SCR 46 (A)
  35. Art. 79 — It is settled principle of law that for proving the execution of a document it is essential that two attesting witnesses should appear before the Court and state that the document was executed by the executant in their presence. The executant signed the document in their presence and they identify his signatures. Maqsood Ahmad & another v. Muhammad Razzaque and 9 others 2009 SCR 38 (C)1999 CLC 1130, 2005 SCMR 135 and 1985 SCMR 214 ref.
  36. Art. 79 — Proof of execution of document — Under this provision of law it was necessary for proving execution of document to produce at least two attesting witnesses of the deed in whose presence the document was executed — Only one witness was produced — Who failed to prove execution of document — The onus to prove the document (power of attorney) was upon the beneficiary of of power of attorney — Execution of power of attorney not proved — Two sale-deeds executed on the basis of this power of attorney were declared null, void and inoperative on the rights of the plaintiffs — Plaintiffs have not alleged fraud, therefore, onus to prove execution of power of attorney was on the beneficiary of power of attorney. Maqsood Ahmad & another v. Muhammad Razzaque and 9 others 2009 SCR 38 (B)
  37. Art. 79 — Provision of — Applicability and scope — Said Article postulates that a document, if required by law to be attested, it shall not be used as evidence unless two attesting witnesses have been called for the purpose of proving its execution — Said provision applicates in those cases where there is a dispute regarding execution of a document between its maker and the person in whose favour it purports to have been executed. WAPDA and another v. Sardar Asif Ayub Khan and another 2013 SCR (SC AJ&K) 673 (C)
  38. — Article 79—proof of execution of document required by law to be attested—where a document is required to be attested, then at least two attesting witnesses should be produced by the person relying upon the document. Nazir Hussain Shah & others v. Muhammad Saeed Shah 2017 SCR 1593 (B)
  39. —article 79— proof of execution of document—essentials —produce two attesting witnesses—who state it was executed and signed by executant and also indentify his signature—the law is settled that for proving the execution of a document, it is essential that two attesting witnesses appear before the Court and state that the document was executed by executant in their presence and the executants has signed the document in their presence and identify the signature. Zahoor Ahmed & others v. Muhammad Mehrban & others 2017 SCR 1370 (A)  2008 SCR 46 & 2009 SCR 38 rel.
  40. —article 79—proof of document—only one witness appeared to prove—the power of attorney—not proved through cogent and reliable evidence—in circumstances— In the peculiar circumstances of the case , the contents for power of attorney were not proved through cogent and reliable evidence as in the case in hand admittedly only one witness has appeared. Zahoor Ahmed & others v. Muhammad Mehrban & others 2017 SCR 1370 (B)
  41. — article 79 — to prove execution of document, two marginal witnesses must record statement—Under Article 79 of Qanun-e-Shahat Order, to prove the execution of a document, statements of at-least two attesting witnesses are required to be recorded. Zaffar Younas & others v. Noor Ahmed Khan & others 2023 SCR 491 (E)
  42. Article 87 — sub-sections (2) & (3) (AJ&K) Amendment) — Photostat copy of public document is not admissible unless the officer having the custody of original document certifies the same to be true copy — every public officer having the custody of a public document shall give a person on demand on payment of the legal fee, together with a certificate written at the foot of such copy that it is true copy of such document or part thereof and such certificate shall be dated and subscribed by such officer with his name, official title and shall be sealed.  Iffat Bib v.  Azad Govt. & 19 others 2015 SCR 83 (C)
  43. Article 87 — Photostat copy of public documents, shall not be admissible unless it has been certified to be the true copy, by the officer concerned who has the custody of the original document. Muhammad Azam &  others  v.  Khadim Hussain & 2 others 2015 SCR 126 (B) Iffat Bibi vrs. Azad Govt. & others (Civil appeal No. 6/2013 decided  on 13.5.2014 and Saira Bashir Butt vrs. Azad Govt. & 7 others (Civil appeal No.181/2013 decided on 18.6.2014. rel.
  44. Art. 87 — Under Art. 87, photocopy of a document is not admissible in evidence and certified copy is the one which is issued by the authority having the custody of record verifying therein, that it is certified true copy of the original record. Saira Bashir Butt v. Azad Govt. & others 2015 SCR  631 (C) Iffat Bibi vs. Azad Govt.& others, (Civil Appeal No.6 of 2013, decided on 13.05.2014) ref.
  45. Article 87 — photo copy of a document is not admissible in evidence. Fazal Hussain (deceased) & 9 others v. Allah Rakhi & 4 others 2016 SCR 55 (D)
  46. Article 89 (E) — Public document of a foreign country — The public document of any other class in a foreign country by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public or of a Pakistan Consul or diplomatic agent, that the copy is duly certified by the Officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country can be considered as a public document of a foreign country. Whereas, the position in the instant case is not same as discussed hereinabove in context of clause (E) of Article 89 of Qanoon-e-Shahdat order, 1984, because the Government of occupied Kashmir is not recognized by the people of AJ&K or the Government. The document which the plaintiffs-appellants want to produce is only an attested copy of agency under the context of the Government of the occupied Kashmir and the same has not been certified under the seal of Consul or diplomat, then too, the document cannot be brought in the purview of Article 89 of Qanoon-e-Shahdat order, 1984, hold the status of a foreign country. Moreover, no mode is available to verify this document that the original is in the possession of the same who issued. Held: such like document cannot be given any authenticity without any conduct backing, therefore, the same is not admissible in evidence.Ali Shan v. Iftikhar Ahmed 2014 SCR 1617 (B)
  47. —Article 95—powers of—attorney—presumption of— According to this statutory provision the requirement of presumption is that a document purporting to be a power of attorney has to be executed before, and authenticated by a notary public or any Court, Judge, Magistrate, Pakistan Consul or vice-Consul or representative of the Federal Government. Muhammad Rafique vs Muhammad Shafique & others 2018 SCR 132 (A)
  48. Art-95—Registration Act, 1908—sections 32 and 33–power of attorney—executed in foreign country—valid attestation/authentication of—essential requirements—power of attorney executed in foreign country should have been authenticated by the Notary Public or any court, Judge, Magistrate (Pakistan) Counsul or Vice Counsul as required under Article 95 read with sections 32 and 33 of Registration Act— Maroof Begum v. Kasmic Walaz Firm & 83 others  2020 SCR 577 (B)  2019 CLC 1519 ref
  49. Art. 100 — Thirty years’ old document — Presumption of truth — Principle of law — A thirty years’ old document has presumption of truth under law if the same has been executed under the relevant statutory provision. Aziza Begum v. M. Hussain Khan through L.H. 2013 SCR 563 (B)
  50. —Articles 111 and 112 (2) —Chapter—VII—murder case—evidence collected—through modern devices—appreciating, admissibility and conviction of—evidence in shape of CD and mobile calls’ data—these articles are part of the record—Held: the Court in view ofstatutory provision can take the judicial notice and consider the same in evidence as provided under article 111 & 112
  51. (2)—In the present era, the Courts have awarded the death sentence on the solitary evidence, collected through the modern devices—in innocent Zainab’s rape case, the Court while relying upon the DNA report awarded the death sentence. Yasmin Ashraf &others vs Abdul Rasheed Garesta &others 2018 SCR 661 (J)
  52. Art, 113 — Admitted facts need not be proved. M. Iqbal v. M. Iqbal 2015 SCR 1435 (A)
  53.  — Article 114 – estoppel — doctrine of — when a person has, by his declaration, act or omission, internationally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceedings between himself and such person/representative to deny the truth — this principle is founded on equity & justness with the objective to prevent fraud and ensure justice. AKLASC & others vs Misdaq Hussain Kayani & others 2024 SCR 23(B)
  54. —Articles 117 & 118—One who asserts a specific fact and seeks direction or declaration from the Court over his assertion, he has to prove his assertion.  Noman Javed  v. Senior Member Board of Revenue 2019 SCR 539 (C) 1993 SCR 327 rel
  55. — Article 117 and Article 118, Qanun-e-Shahadat Order 1984—proof of custom. See caption (l) Muhammad Zareed & others v. Muhammad Haroon & others 2022 SCR 1685
  56. Art. 118 — Civil Procedure Code, 1908 — Civil cases — Principle of law — The Courts have to decide the civil cases on the strength of the proof of the parties — If the evidence remains un-rebutted, it is treated as sufficient proof. Azad Govt. v. Sahibzada Raja Muhammad Hanif Khan and others 2013 SCR 513 (B)
  57. Art. 118 — See AJK Land Acquisition Rules, 1984, R.10. Azad Govt. v. Sahibzada Raja Muhammad Hanif Khan and others 2013 SCR  513 (D)
  58. Art. 120 — See AJK Interim Constitution Act, 1974, S.42. Nadeem Ahmed Versus Muhammad Javed and others 2013 SCR 576
  59. —Article 122—Burden of proving fact especially within knowledge—it was for the appellant to prove that the post in dispute was falling in the direct quota and therefore, was liable to be included in the advertisement. In absence of any such record or material, the stance taken by the appellant cannot be admitted as correct. Noman Javed  v. Senior Member Board of Revenue 2019 SCR 539 (D)
  60. — article 122 — Burden to prove — burden of proof lies on party who claims to have knowledge of a particular fact and asserts same in his favour — wisdom behind principle — Held: Qanun-e-Shahdat Order, 1984, covers the burden of proof for things in knowledge of a particular person. It provides that where the knowledge of the subject-matter of an allegation lies peculiarly within the province of one party to a suit, the burden of proof must also lie there. The raison d’être of this principle is that if there are facts which are only in the knowledge of a particular party, all rules of convenience and fairness demand that such a person be under an obligation to prove them, because if other party has no knowledge of them then calling it to adduce evidence in such a situation will go against wisdom and fairness. Zaffar Younas & others v. Noor Ahmed Khan & others 2023 SCR 491
  61. —Art. 127—pardanasheen lady—execution of document–proof of—onus—if genuineness of a document executed by a pardanasheen lady is disputed by her—the person relying on such document has to prove the good faith and geniuses of the same. Naseem Akhtar v. Mukhtar Begum & others 2022 SCR 403 (F) 2005 SCMR 1859 ref
  62.  —Art. 127—pardanasheen lady—beneficiary of any transaction involving pardanasheen and illiterate women has to prove that it was executed with free consent and will of lady. Naseem Akhtar v.            Mukhtar Begum & others 403 (G) 2021 SCMR 19 ref
  63. —Art. 127—pardanasheeen lady—execution of transaction–proof of—-onus—burden of proof in respect of genuineness of a transaction with a pardanasheen lady lies on the person who derives benefit— such a person is legally obliged to prove and satisfy the Court that the document was executed by the same pardanasheen lady, she had complete knowledge and full understanding about the contents of the document and she had independent and disinterested advice in the matter before executing the document. Naseem Akhtar v.             Mukhtar Begum & others 2022 SCR 403 (H)
  64. — Art. 127—pardanasheen lady—execution of transaction–burden of proof—where the executant of document is an illiterate pardanasheen lady, the burden of proving due execution is upon the beneficiary of such document—where a transaction is challenged by an illiterate pardanasheen lady, the onus to prove the authenticity and geniuses that document is squarely upon the beneficiary of that document — the beneficiary of a document, challenged by pardanasheen lady, has also to prove that the same was entered into by her after clearly understanding the nature of transaction and it should be established that it was not only her physical act but  also her mental act. Naseem Akhtar v.                 Mukhtar Begum & others 2022 SCR 403 (D) 1989 CLC 1584 rel
  65. Art. 128 — presumption of legitimacy of a child — any person born during the continuation of a valid marriage between his mother and any man and not earlier than the expiration of six lunar months from the date of the marriage or within two years after its dissolution, the mother remaining unmarried, shall be conclusive proof legitimacy unless proved otherwise, provided the child was born during the continuance of a valid marriage notwithstanding the facts that the child was born within 180 days after the first coitus between the couple — held: every presumption is made in favour of legitimacy of the child. Muhammad Sajid v. Mst. Sajida Rasheed & another 2016 SCR 1284 (C) 2003 SD 225 & PLD 2015 SC 327, ref.
  66. Article 129 — withheld of evidence — its effect — If the Court comes to the conclusion that the prosecution withheld the best available evidence without any justification then the adverse inference should be drawn in this case — the real son of the complainant, was one of the eye-witnesses of the case but was not examined by the prosecution when a query was made to the learned counsel as to why he was not examined, he stated that due to affection and love with his son, the complainant’s father did not opt to examine him. This argument has no force. On one hand, the complainant, the real father of the accused, did not feel hesitation to come forward as complainant of the case despite the fact that his son was involved in the murder of two innocent persons and on the other hand he was reluctant to produce Muhammad Arshid, the real son of the complainant as a witness. In such like situation, the Court must draw the adverse inference. Muhammad Arshid, the real son of the complainant, if examined, he might have not supported the case of the prosecution. Muhammad Arshid was the real eye-witness of the case, who cannot be given up without assigning the strong reasons, therefore, withholding of this evidence may lead to the inference that if the said witness is produced in the Court, he might have not supported the story of the prosecution. Mst. Maqsooda Begum v. M. Masood & 2 others 2014 SCR 1653 (B) Gulfam & others vs. The State and others (Criminal Appeal No. 60 of 2012, decided on 11.10.2013), rel.
  67. Article 129 — non production of certain evidence — adverse inference — It is not necessary that in every case an adverse inference must be drawn against the prosecution in terms of provisions of Article 129 of Qanun-e-Shahadat Order 1984 owing to non-production of certain evidence, whether mentioned in the indictment or not. It will depend upon the facts and circumstances of each case but an adverse inference can only be drawn if it is shown that material witnesses have been withheld owing to some oblique motive and for considerations not supported by the record. Mst. Maqsooda Begum & 6 others v. Muhammad Masood & 2 others 2014 SCR 1653 (C)   
  68. Art. 129 — it is for the Court to make or decline to make a presumption — non-production of best available evidence — condition to draw adverse inference — Held: Art. 129 — reveals that word “Court may presume”  has been used which indicates that it is for the Court to make or decline to make a presumption keeping in view the overall circumstances and facts of the case. It is not obligatory for the Court to draw adverse inference in each and every case and the sole discretion lies with the Court to decide according to the facts of each case. In case, the prosecution failed to offer any explanation for non-production of the best available evidence with the prosecution then the adverse inference can safely be drawn. But if explanation has been given which is convincing in nature then it is not for the Court to draw the adverse inference. Muhammad Babar v. State through Advocate General 2014 SCR 1585 (B)   
  69. — Article 129 — withholding of evidence — when prosecution withholds some evidence, an adverse inference can be drawn that if was produced, it would have been against the prosecution. Muhamad Bashir & others versus Muhammad Naveed Abbas & others 2023 SCR 1152 (E)  2015 SCR 1335 ref., 2014 SCR 1564, 2010 SCR 113.
  70. Art. 129(G) — Criminal trial — Withholding the best available evidence — Inference — The Court can draw an inference against the party who did not produce the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it — It is the bounden duty of the prosecution to examine a material witness particularly when no allegation has been made that if produced, he would not speak the truth. Sajid Iqbal Versus The State through Additional Advocate-General, Mirpur and another 2013 SCR (SC AJ&K) 1123 (A)
  71. Art. 129(G) — See AJK Interim Constitution Act, 1974, S. 42. Sajid Iqbal v. The State through Additional Advocate-General, Mirpur and another  2013 SCR (SC AJ&K) 1123 (B)
  72. Article 129 — withholding of best evidence — adverse inference —  according to the statutory provisions of Qanoon-eShahadat Order, 1984, inference can be drawn against the prosecution that such evidence has been withheld being nonsupportive to the prosecution case. Raqiba Begum &  others  v. Javid Iqbal & others 2015 SCR 1335 (C) 2000 SCR 1 Rel.
  73. —section 129—withholding of material witnesses—effect of—inference against the prosecution—Although, it is not mandatory for the prosecution to produce all the witnesses cited in
  74. the calendar of witnesses; however, if a material witness is withheld then under the provision of Article 129 of the Qanoon-e-Shahadat Order, 1984, the presumption can be taken against the prosecution that such witness if produced would have not supported the case of the prosecution. Azkar Hussain Shah vs The State & another 2018 SCR 1056 (A)
  75. —Article 129, illustration (g)—Withholding of natural and material evidence/witnesses—cast adverse inference—under law it is not obligatory for the Court to draw adverse inference in each and every case and sole discretion in this regard lies with the Court to decide according to the facts of each case. In the instant case, the record reveals that the prosecution neither produced some of eh injured as witness, nor the members for panchayat, as pointed out by the learned Shariat Court in the impugned judgment, were cited as witness, whereas, keeping in view the circumstances of the case, these witnesses were most natural and material witnesses of the occurrence. In such state of affairs, we are satisfied that the learned Shariat Court while drawing the adverse inference has exercised the discretion judiciously; as according to the statutory provision i.e., illustration (G), of the Qanoon-e-Shahadat Order, 1984, if the available evidence is not produced by a party, it can be presumed that the same has been withheld due to being not supportive to such party. Basharat Hussain vs Ejaz & others 2018 SCR 1026 (A)
  76. —Article 129—Evidence—withholding of material witnesses—adverse inference against prosecution was drawn—that witnesses would not be supportive to prosecution’s case—From the juxtapose perusal of the circumstances discussed hereinabove and the statement of the Investigating Officer, we are of the considered view that it is a fit case in which an adverse inference can be drawn, under the provisions of Article 129, of the Qanun-eShahadat, 1984, that material witnesses have been withheld by the prosecution being not supportive to the prosecution’s version.  Muhammad Idress & 2 others v. State through AdvocateGeneral & 11 others  2020 SCR 200 (E) 2003 SCR 486
  77. —Article 129—if the best evidence is withheld, the Court can presume the certain fact against the party who withheld the same. Robeena Aftab v. Shabbir Ahmed & 4 others2020 SCR 78 (C) 
  78. –Art. 129— 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 etc. in their relation to the facts of a particular case. Khawaja Aamir Ahmed Versus Azad Govt. & 6 others 2021 SCR 58 (F) 
  79. —Art. 129 —see Syed Kamran Hussainshahv. State & another 2022 SCR 365 (C)
  80. —Art. 129—-murder—withholding of best evidence—it is prerogative of prosecution to produce the witness of its own choice but non-production of an injured witness, would give rise to adverse presumption that had such witness been produced it would have been fatal for the prosecution. Nani Sultana v. Tanveer Ahmed & others 2022 SCR 615 (F) 2013 SCR 1123 rel.
  81. —Art. 129—the name of one eyewitness has not been cited— no reason whatsoever has been assigned—an adverse inference can be drawn, that this material witness has been withheld being not supportive to prosecution version. Muhammad Javed  v. Muhammad Jamil & another  2022 SCR 705 (B)
  82. —Art. 129—withholding of best evidence—injured survived for 3 years after incident— prosecution failed to get his statement recorded and post-mortem was also not got conducted— thus, best available evidence not produced. Since, the best available evidence not produced—Court observed that best available evidence not produced and while drawing adverse inference held that it is not case of further enhancement of the sentence— complainant’s appeal dismissed. Muhammad Latif & others v. M. Sadiq & others 2022 SCR 928 (C) 2013 SCR 1123 ref.
  83. — article 129 — Court may presume existence of certain facts — witness of recovery of weapon of offence — not produced before Court — Evidence withheld — adverse inference against prosecution — no legally acceptable explanation for withholding such an important evidence is available on record, thus, in the foregoing circumstances, we have no other option except to draw an inference in term of illustration (g) of Article 129 of Qanoon-eShadat 1984. The statutory provision (supra) clearly postulates that if the best evidence is withheld, a presumption can be drawn that if the witness would have examined, his evidence would have been unfavourable to the prosecution. Muhammad Shahbaz v. Nasarullah Khan & others2023 SCR 384 (H) PLJ 2011 SC 191 Rel.
  84. Art. 130 to 133 — Examination-in-chief of cross-examination of witness — Procedure for — Inhabitation or liberties attached by law to examining or cross-examining a witness are provided for the Courts and the parties or their Advocates, not for the witness stating a case before the Court — The entire procedure of examining or cross-examing the witness by parties or the authority of the Court to regulate the examination in accordance with the spirit of the relevant Articles of the Qanoon-e-Shahadat Order, 1984 — The witness is to state the facts relating to case which he knows not as to what a party wants him to state — The Court is bound to receive all admissible evidence produced by a party, however, discard the irrelevant or scandalous part of the statement — No provision of Qanoon-e-Shahadat Order provides as to how a witness should answer or response to a question put in examination-in-chief or cross examination — The manner or method of making a statement in examination-in-Chief or cross-examination is not regulated by relevant provisions of Qanoon-e-Shahadat Order — It is always controlled by the Court itself — An absolute discretion is given to the Court — No exact criteria or standard is laid down — A witness is a human being, he is to state with “ifs” and “buts” and with “explanations” — It is for the Court to decide as to whether to rely on it or not. Ali Asghar v. The State 2007 SCR 414 (A)
  85. — Article 132 &133—right of cross-examination—  See Barkat Ali Khan versus Additional District Judge & 4 others 2021 SCR 564 (A&C)
  86. Art. 133 — Acknowledges that a party shall first examine its own witness and then the opposite party may exercise the right of cross-examination — The party calling witness has again been given the right of questioning the witness with a view to enable the witness to explain anything which may have been elicited from him in cross examination. Rukhsar Ahmed & 3 others  v. The State & another 2005 SCR 205 (B)
  87. Art. 133(3) — Has been incorporated for safe administration of criminal Justice as even a bit of evidence produced in a criminal case is required to be considered along with other evidence to form an opinion of guilt or otherwise — In cross examination the defence cannot be confined to put only such questions to the witness which he has narrated in the examination-in-chief — Even the character of the witness can be challenged in cross-examination under Art. 133 prosecution cannot introduce in re-examination any new matter — If a material question has been admitted in the examination-in -chief it cannot be asked as a matter of right in re-examination — However, Courts are competent to allow such question for safe administration of criminal justice — Held: As new matter was introduced in cross-examination therefore, re-examination of the witness was rightly allowed by the trial Court. Rukhsar Ahmed v. The State & another 2005 SCR 205 (D)
  88. Art. 164 — Admissibility of video film in evidence — Art. 164 clearly contains that the Court may allowto produce any evidence that may have become available because of modern devices or techniques. Arshad Mahmood v. Raja Muhammad Asghar and another 2008 SCR 345 (F)
  89. Article 164 —Murder case—evidence— admissibility of— evidence made available through modern devices is admissible and can be taken into consideration along with the other evidence. Yasmin Ashraf &others vs Abdul Rasheed Garesta &others 2018 SCR 661 (I)
  90.  — article 164 — evidence — admissibility of evidence, available out of modern devices— Article 164 of the Qanun-eShahadat Order, which provides that in such cases as the Court may consider appropriate, the Court may allow to produce any evidence that may have become available because of modern devices or techniques. It stipulates that the court has the discretion to allow the introduction of any evidence that has become available through modern devices or techniques, as deemed appropriate by the court. Consequently, the application filed by the appellants before the trial Court was accepted by the Supreme Court and the appellant was allowed to place the CCTV footage for making confrontation of the witness, however, the trial Court was made at liberty to scrutinize the authenticity of the CCTV footage at the time of final adjudication of the case. Hussain Nazi v. The State & another 2023 SCR 356 (F) 2010 SCR 329 & PLD 2023 SC 211 Rel.
  91. —-Articles 196 to 200—powers of attorney—ratification of—According to the statutory provisions acts done by the attorney after ratification are deemed to have been competently done—principal not only admitted the execution of the power of attorney but also ratified by the document or by intention—Held: the matter of appointment of counsel by his client, if not disputed, and the client owns the appointment, the acts done by the counsel shall be deemed valid. Muhammad Rafique vs Muhammad Shafique & others 2018 SCR 132 (A)
  92. Production of a document in Supreme Court -in exceptional cases may be permitted. Hafiz Textile Mills  v. Dy. CollectorExcise & Taxation 1992 SCR 44 (A)
  93. Certified copies issued according to law can normally be considered by the Court. Hafiz Textile Mills  v. Dy. CollectorExcise & Taxation 1992 SCR 44 (B)
  94. Evidence — In civil matters a standard of proof required for proving the case is different from one required in criminal matters. Gh. Murtaza v. Qalam Din 2008 SCR 540 (B) 2000 SCR 594 rel.
  95. If particular portion of the statement of a witness goes against the interest of a party and the same is not challenged in cross-examination particularly when the opportunity of cross-examination is provided to the party then that portion of the statement shall be deemed to be admitted as correct. Ghulam Murtaza v. Qalam Din 2008 SCR 540 (C) 1999 CLC 1358 & PLD 2004 SC 633 rel.
  96. It is now well settled that a material part of statement of a witness, if goes against the interest of a person and the person has not challenged it in cross- examination, the same shall be deemed to have been admitted as correct. Ghulam Murtaza v. Qalam Din 2008 SCR 540 (D)
  97. The evidence has been divided into two categories, first is the statements required to be made before the Court by the witnesses in relation to matters of fact and inquiry, such statements are called oral evidence — the second category includes all the documents produced for the inspection of the Court, such documents are called documentary evidence — The videos film comes within the definition of document — It pertains to 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 the matter. Arshad Mahmood v. Raja Muhammad Asghar and another 2008 SCR 345 (H) 2002 P.Cr.L.J.1765 rel.     
  98. Doubtful document — contention that the provisions of Qanoon-e-Shahadat Order, 1984 are not applicable — Held: The document which the defendant-appellant wants to produce before the trial Court has become doubtful — it would be immaterial that the same is photocopy or original —Further held: Supreme Court do not intend to dilate upon the applicability of the provisions of Qanoon-e-Shahadat Order, 1984 in the proceedings of the Family Court. Bilal Shaheen v. Judge, Family Court & another 2016 SCR 1697 (C)
  99. — nature, purpose and interpretation of Qanun-e-Shahadat Order, 1984 — It is important to note that the QSO primarily functions as a procedural law, and therefore its provisions should be interpreted liberally rather than restrictively in order to serve the purpose of justice. Hussain Nazi v. The State & another 2023 SCR 356 (G)
  100. — competency of child witness — principle laid down regarding reliance on evidence of child — Held: It is now well settled that Courts, as a matter of prudence, are generally chary of putting absolute reliance on the evidence of child witnesses and looking for corroboration of the same from other circumstances in the case but evidentiary value of their testimony must be carefully evaluated, for that purpose Court often consider the age, maturity and cognitive abilities of child witness when assuming the reliability and credibility of their testimony which are not absolute or fixed rules but mere factors to be considered for Court’s own satisfaction before determining or reaching at a just conclusion or view. Habib Hussain Shah v. State & others 2023 SCR 442 (C)
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