1.

The Qanun-e-Shahadat
as amended upto date.

Order,

1984

(X

of

1984) (Evidence

Law)

Books Recommended:
1. The Qanun-e-Shahadat by Professor Dr. Chaudhary Muhammad Hanif.
2. The Qanun-e-Shahadat by Muhammad Iqbal.
3. Qanun-e-Shahadat Order by Muhammad Shahid Mughal and Intisar Ali
Chauhan.
4. Law of Evidence in Pakistan (old) by Mazhar Hasan Nizamy and A. G.
Chaudhary.
There are two types of laws, i.e., substantive and procedural. Substantive law
is related with the person and property while procedural lawdeals with the
procedure as to how substantive law is proceeded in a court of law.
If a person does not fulfill legal obligation, how he can get remedy? How his
rights are enforced? For example, a contract is formed between two
persons, and one of them commits breach of contract. It is fact and alleged in
court that it was not performed. He pleads a fact, which is breach. What is the
procedure by which breach is proved? How he establishes that fact stands
exist? It is only evidence, which proves the existence of fact.
Court itself takes notice of question of law. Parties are not required to resolve
the question of law but only question of fact. Parties have to just prove the
existence of fact.
Before the present Qanun-e-Shahadat Order there was the Law of Evidence,
1872. It was rearranged during the Islamization process in the Zia regime. It
is more or less same as earlier. Differences are as follows:
Under old law provisions of the law were called sections while in new one
they are called Article.
Provisions of law have been reshuffled.
Title of the law has been changed from the Law of Evidence, 1879 to Qanune-Shahadat Order, 1984.
Few Islamic provisions have been introduced, e.g., number of witnesses have
been increased to four for Hudood crimes.
Financial provisions have been brought Islamic.
Qualification of witnesses and law of accomplice has been changed.

If the new provisions do not fulfill the requirement of the case then old
provisions remain applicable. Finally it is more or less the same law, same
ruling, same judgement, same decisions, and same cases.
What is function of evidence law? To whom, as witness is to be produced in
court to testify truth? Witnesses are produced from both sides to prove or
disprove the facts in issues. Whether the produced witness is competent to
give evidence in court of law and what are the qualifications of competent
witness are also questions of law of evidence. Witnesses also have some
rights and duties as well. Generally all are the competent witnesses provided
they are not debarred to give evidence except in certain cases. They have
certain privileges and no question can be asked from them against which
they are protected under law. If any question is asked which falls within their
privilege they may refuse to answer the question. Rights are called
technically privileges. Generally witnesses are free to answer or refuse.
During the cross-examination they bear legal duty to answer question asked.
Whether evidence once given on one court can be adduced (cite, offer,
present) in all courts? No, it is accepted only where court or person
administers it under oath. Arbitrator does not take evidence under oath so
evidence taken by him is not admissible in courts.
A, advances to B Rs. 5,000/- repayable within one month. B commits default
in repayment. A files a suit in court against B for the recovery of amount of
Rs. 5,000/-. B either may admit the receipt of amount and not repaid or may
allege repaid within due time. A alleges advance of Rs. 5,000/- and B alleges
its repayment. Two facts in issue arise. Advancement of Rs. 5,000/- becomes
issue in fact on the part of A while repayment of Rs. 5,000/- within due time
becomes fact in issue on the part of B. Both have to prove their claims by
producing evidence.
If B claims receipt of advance amounting to Rs. 5,000/- which is still
repayable then no fact in issue will arise and case with be adjudged in favour
of A. fact in issue arises when one party denies the fact in issue which
plaintiff puts. Both plaintiff and defendant put their facts in their pleadings
but court frames the facts in issue. Whenever defendant denies the fact
which plaintiff alleges, then fact in issue arises.
There may be more facts in issue than one. Relevant evidence is given to
prove or disprove the facts in issue. Denial of B can be proved through the
Cheque issued to him while the receipt of Money Order can prove repayment.
Kinds of evidences: There are certain kinds of evidence, e.g., oral and
documentary, primary and secondary etc. Primary evidence contains
original documents or postmortem reports. Secondary evidence contains
copy or attested copy of the original document. Secondary evidence is
allowed where primary evidence is not available. Documentary evidence
excludes oral evidence being authentic and preferred. Following are kinds of
evidences:
1. Oral: Statements made by witnesses in Court.

2. Documentary: It includes public and private documents, and statements

of relevant facts made by persons in writing.
3. Conclusive: Evidence of a fact which the Court must take as full proof of
it, and which excludes all evidence to disprove it.
4. Direct: It is evidence of fact actually in issue; evidence of a fact actually
perceived by a witness with his own senses.
5. Circumstantial: It is evidence of a fact not actually in issue, but legally
relevant to a fact in issue.
6. Real: It is a kind of evidence supplied by material s produced for the
inspection of the Court.
7. Extrinsic: It is oral evidence given in connection with written documents.
8. Hearsay: What someone else has been heard to say, What the solider
said, as contrasted with the direct evidence of a witness himself, oral or
written statements made by persons not called as witnesses? Hearsay
evidence is, in general, excluded, but the repetition or another persons
statement is sometimes permissible, and there are express exceptions of
the rule against hearsay.
In criminal proceedings that common law rules as to hearsay still obtain.
In civil proceedings the common law rules are abrogated.
9. Indirect: It is circumstantial or hearsay evidence.
10. Original: It is evidence, which has an independent probative force of its
own.
11. Derivative: It is evidence, which derives its force from some other
source.
12. Parole: It is oral, extrinsic (unrelated) evidence.
13. Prima facie: It is evidence of fact, which the Court must take as proof of
such fact, unless disproved, by further evidence.
14. Primary: Primary evidence of a document is the document itself, or
duplicate original.
15. Secondary: It is the evidence other than the best evidence, and which is
rejected if primary evidence is available, e.g., oral evidence of the
contents of a lost document such as a Will.
Theft: Where property is removed from the custody of its owner with
unlawful intention, it is called theft. It has four ingredients such as:

1. Dishonest intention: Where property is removed without unlawful

intention and later on dishonest intention is formed, it not called theft but
misappropriation. Dishonest intention must be there at the time of
removal of property.
2. Moveable or tangible property: Only moveable property is subject of
theft. Where immovable property is removed such as fan which is
removed from wall or ceiling or tree is removed from earth, it becomes
moveable property thus its removal with dishonest intention becomes
subject of theft.
3. Removal of property: Mere dishonest intention is insufficient to
constitute the offence of theft. Its removal must be there. Where dishonest
intention exists but property is not removed, theft does not take place.
4. From the possession of other: Moveable property, which is removed
with dishonest intention, must have its owner. Where any person has
abandoned his possession of any property, its removal shall not form the
offence of theft. Where owner of bull abandons the ownership of bull, its
slaughter shall not form the offence of theft. Ownership or physical
possession of property is one of element of theft.
Misappropriation of property: Misappropriation of property is a result of
state of mind, which is changed subsequently. All the elements of theft are
found in misappropriation of property except the dishonest intention at the
time of removal of property. To constitute misappropriation of property, its
dishonest intention after the removal of property must be proved. It is breach
of trust. Breach of trust does mean a person is entrusted but later on he
changes his mind and keeps the property dishonestly for personal use is
termed misappropriation.
Where a manager gives some amount to his clerk for disbursement to
employees relying upon him creates a trust to his subordinate. When clerk
changes his mind after taking possession of money for the keeping amount
for his personal use without having any lawful authority, is breach of trust for
which he was entrusted.
Where a worker takes bicycle relating to another worker mistakenly but
subsequently he keeps such bicycle at home for his child and also takes his
bicycle for his own use is also misappropriation of property.
Law of theft is not applicable on misappropriation of property on the fact that
dishonest intention was not there when moveable property was removed
from the possession relating to other.
Under the offence of theft owner of the property does not know whether
property relating to him is removed while he gives possession of his property
himself to other person where misappropriation of property may take place.
Result of breach of trust form misappropriation of property.

Mere removal of moveable of property from the possession relating to other is

insufficient to constitute either the offence of theft or misappropriation of
property.
Judicial notice: Where something is not produced then court itself takes its
notice. This notice is called Judicial Notice. This notice is taken where there is
no need to prove something, e.g., Map of Pakistan, question of law,
administration, division of cities or districts or provinces etc.
Where a person is refrained to deny the truth already admitted is called
estoppel. Where a principal has not appointed agent but he ostensibly acts as
agent before principal then principal cannot deny the truth of his agency.
A is shopkeeper and B is his friend and joins him in his shop. C comes to shop
and A introduces B as owner of the shop. C deal with B. Adispute arises
between shopkeeper and C. A cannot deny the truth being B as owner of the
shop. Burden or onus of proof (PJQ iBI) lies on the shoulders who alleges
(claims, ascertains). Burden or onus of proof shifts to him who fails to prove
the facts in issue.
In criminal cases prosecution has to prove the fact in issue because she takes
in court case and alleges the guilt of accused. In civil cases person who
alleges has to prove it. Prosecution has to prove the claim by evidence, which
is beyond the reasonable doubt. In civil matters suit is adjudged with
principle of preponderance (majority, supremacy, dominance).
Witness who testifies the facts in issue is examined and his evidence does not
rest accepted without preponderance. Court does not rely on evidence
without cross-examination. Leading questions (pursuance during the
proceeding) are not permissible. Court also examines the credibility of
witness. Arguments and cross-examinations are the tools to crystallize its
truth. Sometimes witness is called again to testify the truth if the document
misplaces.
Application of this law: This Act is applicable to whole of Pakistan on all
judicial proceedings. Where evidence is required this law applies. This law is
applicable for such forums:
1. Courts: Courts are subjects of the application of this law.
2. Persons empowered: Person who is empowered by law for the judicial
proceedings is subject of this law.
3. Tribunals: Tribunals for the judicial proceedings record their evidences
under this law.
4. Quasi-judicial proceedings: It is also applicable in all quasi-judicial
proceedings.
5. Magistrates: They are also subject of this law and record evidence
under this law.

6. Martial Law Courts: They are also bound to record evidence under this
law.
Non-application of
proceedings such as:

this

rule: This law does not apply on certain

1. Jury system: Where jury system of justice exists there is no application

of this law of evidence.
2. Arbitration: It is also not applicable in arbitration cases.
3. Inquiries: If the inquiry is not judicial then it is not applicable.
Court: As far as evidence law is concerned court means any person, tribunal,
or authority, which exercises powers, invested to her as per law of land.
Document: U/s 29 of Pakistan Penal Code, document is a material written or
described on any substance and carries some meaning and can be produced
as evidence in court. All written materials regardless written on cloth, paper,
stone, leather, tree, bones etc. is document if it carries some meaning within
the meaning of this section. It may be ABC or 123 or ?-@$/=, but it should
must carry meaning. Bloodstains on cloth are also a document. Black board,
affidavit, engraved name on tree, glass, plastic, iron, brick is document.
Engraved engine number on motor cycle or pistol is document. Wound mark
on body is also a document, but an expert should medically examine it and
his report will termed as document.
Need of evidence: Court has to arrive on truth. Court does not know the
actual and factual position of the facts in issue. How a court may arrive to
truth? It is only evidence, which brings court to truth. Only evidence
concludes such statement, which is given orally and admissible.
Role of police in judicial proceedings: Statement given before Police
Officer, does not amount evidence admissible in court. It is just investigation
and proceedings which court conduct is called enquiry. Police just collects
evidences but does not record evidence.
Confession: Confession made before Police Officer is not admissible actually
and particularly when names of other persons are mentioned. Police may
investigate against them but this confession cannot be used against them as
evidence. Confession is used only against him who makes it but not against
others.
The test of the judicial authority is that officer empowered takes evidence on
oath. Executive officer may also use quasi-judicial powers. Statement is not
termed as evidence as it is not taken under the Qanun-e-Shahdat Order. Both
Code of Civil Procedure and Code of Criminal Procedure are different but the
evidence has same relevance.
There may be certain facts of issues in pleadings. Some of them may be
admitted and rest may be denied. Need of evidence becomes necessary

where facts are denied. Plaintiff has to provide evidence to establish his claim
in pleading. Stay does not need evidence but arguments.
Where wrong or crime is committed, e.g., dacoity, murder, theft, or alcohol
consumption etc. there is need of evidence to prove or disprove the fact in
issue. Some offences or wrongs are petty in nature thus liable of bail. Bail is
granted at once. Where there is non bail-able offence and court thinks that
accused shall run away, then court shall not grant bail.
Need of evidence: Evidence in both Code of Civil Procedure and Code of
Criminal Procedure is required at the time of trial. It is not allowed at
appellate level. For example, a case of murder is tried in Session Court and
court gives death penalty to offender. Appellate court does not require
evidence. Evidence provided at trial level rests sufficient. Accused goes in
appeal in High Court and his lawyer establishes that a new piece of evidence
has been discovered which if applied in trial court, accused must be
acquitted. If there is probability of reversal or acquittal lies in evidence then
Appellate Court decides the return back the case to trial court for retrial.
Fact: We know that all evidences are adduced before court of law either
relating to fact in issue or relevant to fact. A person may be habitual of
sleepwalking. He may inflict slap to other during sleepwalking. Trespassing is
also an offence in the eyes of law. Trespasser may think that he is entering in
his home but actually it is not his home. This is state of mind. Offender makes
his mind to commit crime. Negligent person may also commit offence.
Anything existence or non-existence of which can be perceived is fact. State
of mind is also fact, which can be perceived and proved. Probable
consequence of stoning is grievous hurt or injury however its knowledge
constitutes fact.
In another example, A, kills to B. Prosecution has to prove murder of B. It
requires evidence thus it is fact. Fact may either require its proof and
disproof. When the evidence is adduced in court and court considers it is
proved that is fact.
Presumption of fact: Some time court presumes whether certain thing or
fact exists or not. It must be kept in mind that presumptions are always
rebut-able. If party proves that fact does not exist, court shall conclude that
fact does not exist.
Competency of witness: There are certain qualifications for the
competency of the witness. Law imposes the following restriction on
competent witness:
1. Age limit: Law does not provide any age limit for the competency of
witness but he should know and retain in his memory the facts.
2. Understanding capability: Competent witness must understand what
court of law wants to enquire. He must have capability to answer the
questions of court.

3. To whom court thinks competent: Satisfaction of the court is another

essential element for the competency of witness. If court does not
consider witness as competent he cannot appear as competent witness
even witness is person of sound mind or generally considered competent.
4. True Muslim: In certain cases only true Muslim is competent witness
particularly in Hudood crimes. He must be person of those qualifications
which Quran and Sunnah prescribe for a witness.
5. Islamic rules: s
6. All persons: s
7. Tazkia: s
8. Eyesight: s
9. Hearing: s
10. Perception: s
11. Smelling: s
12. Communication skill: s
13. Honesty: s
14. Male (only in hudood cases: s
Incompetent witness: Law has debarred some persons to appear as
competent witness. Detail of those is as follows:
1. Incapacity of rational response: Person who is incapable to
understand the question put to him or who cannot give rational answers of
court is not competent witness.
2. Young age factor: Although no age limit is prescribed for the
competency of witness but it does not mean that person of every age can
appear as competent witness. Person who due to young age factor cannot
understand the requirement of evidence is not considered competent
witness.
3. Old age factor: Old age does not matter but it matters a lot. Person who
due to old age factor could not understand the rationality of the questions
and answers put to him in court is not competent witness.
4. Bodily infirmity: Person who is bodily infirm is not competent witness.
5. Mental infirmity: Person of unsound mind is debarred to appear as
competent witness, i.e., who was person of unsound mind at the time of
occurrence of incident.

6. Conviction in false evidence: Person is not competent who has been

convicted in false evidence except where he has been repented and
mended his ways.
7. Unable to understand: s
8. Lunacy: s
9. Slander: s
10. Where is interest: s
11. Habitual liar: s
12. Female in hudood: s
Determination of competency of witness: Where there is any doubt of
competency of witness, only court shall determine his competency by putting
questions to him. His response shall explore his competency.
Exceptions: Law has prescribed certain exceptions for the competency of
the witness such as:
1. Ordinary witness: Where person of the qualifications prescribed in
Quran and Sunnah is not available, the court may take the evidence of the
person who is available to testify the fact in issues.
2. Repented person: Person who had been debarred to appear as witness
due to his disqualification by way of false evidence or any other major
sins, can be considered as competent witness if court thinks that he has
mended his ways and repented.
3. Lunacy while testifying: A person who was person of sound mind at
the time of occurrence of the incident is not incompetent witness if he
loses his memory or becomes person of unsound mind while he testify the
truth before court. Court shall give him reasonable time for recovery so
that he may testify truth before court. Time relaxation is provided to reach
at truth and conclusion.
4. Child witness: Child is competent witness provided court thinks him
competent by testifying as to his ability to give evidence. Set question
cannot be asked to determine his ability to give evidence.
Judges and Magistrates: Judges and Magistrates are not bound by law to
give answers of the questions such as:
1. Conduct of the Judges or Magistrates in court.
2. Any matters which come to their knowledge during proceedings.

Exception: Law provides an exception to this rule as to their privilege, that

superior court may order Judge or Magistrate to answer the question relevant
to the case which was under his trial. Upon the order of superior court, Judges
or Magistrates must have to depose (giving statement) such improper
evidence, which they had admitted. Their evidence is upto the extent of the
case they tried. Their evidence is confined and not opened to other matters,
which are irrelevant. This exception is allowed only in the case where court
could not adjudge due to complex situation.
Immunity or privilege: It is granted to certain persons so that requirement
of justice can be fulfilled. It helps in arrival to truth. Where person is reluctant
to provide evidence due to reason that he shall be convicted or truth shall be
brought, immunity is granted to him. Person who has immunity cannot be
convicted upon truth he provides in evidence.
Immunity also prevents the possibility of the false evidence because person,
having privilege always produces truth because he cannot be trapped on the
truth he produces. S. 182 of Pakistan Penal Code provides it punishable.
Immunity of married persons: Under this law a married person shall not
be:
1. Compelled to disclose any communication made to him during marriage
by any person to whom he is married.
2. Permitted to disclose any such communication, except:
(1)
(2)
(3)

When the person who made it or his representative-in-interest

consents, or
In suits between married person, or
In proceedings in which one married person is prosecuted for any
crime committed against the other one.

It is notable thing that privilege remains exist even after divorce takes place.
Person making evidence may waive off privilege at any time after divorce.
Privileges are provided either on the ground of natural love and affection or to
evade from false evidence thus no prosecution or litigation may take place on
the ground of facts revealed from the evidence, which is privileged.
Information disclosed before marriage does not provide privilege on
subsequent marriage. The only test is the information is disclosed during the
subsistence of marriage. Once a privilege is always a privilege. It can be
waived off but it cannot be ceased to exist (abandoned or discarded or
discontinued or ceased). It is not available for the matters before the
marriage but it remains available after the divorce has taken place. During
the marriage if spouse appears as witness for the offence committed against
third person, cannot produce evidence until second spouse consents. But if
both spouses are parties against each other, then consent for evidence goes
immaterial.

Immunity on state matters: Matters of state may or may not be disclosed.

Matters which are declared confidential or against public policy are not
disclosed if come into knowledge. If they are required to be disclosed, then
permission of the departmental head is required to do so, which may or may
not be granted. Nuclear programme is such example. Person who knows the
unpublished matters may refuse to disclose in evidence on the grounds of
either against public policy or sensitive matter. Head of the department may
grant permission for evidence if there is no apprehension of violation of public
policy.
Information as to commission of offences: Law enforcing agencies have
certain informers who help in elimination of crimes. They inform police
whenever offence is committed. Police or Magistrate has immunity to disclose
as to whence (from where) they got information. They may waive off their
immunity provided public interest does not suffer. But waiver off immunity
may cause problem to informer. Informer would not inform police about the
crimes committed.
As police gets information from informer, collects independent evidences as
to prove crime committed. Evidences acquired are used against accused.
Question cannot be asked to police as to how and from where information
was received. Police has interest in the information of the commission of
crime. Mere information is not sufficient for the conviction of accused.
Information is mere opening of the trial. Conviction or punishment depends
upon evidences which prosecutor collects during enquiry and presents them
in court. Normally informers are not disclosed as sources of information but
they can be called as witnesses where immunity is waived off. Waiver of
immunity does not need the consents of the informer. This is privilege of
police and not of informer. Discovery of offence weapon or stolen property,
postmortem report, signs of foots, evidences, and identification parades are
sufficient grounds to convict the offender. Mere information is nothing.
A Magistrate or Police Officer cannot be compelled to disclose the source of
information received by him as to the commission of an offence. It is of
importance to the public for the detection of crimes that those persons who
are the channel by means of which the detection is made should not be
unnecessarily disclosed.
Professional communication: Professionals are not allowed to disclose any
material received during the course of their business from their clients.
Advocates proceed the cases based on information received from their
respective clients. They cannot disclose such information unless they get
express consents of their clients (). While deciding whether it should be
disclosed or not, relationship between them remains determinant factor. If
communication is made before going into contract or after gone into contract,
immunity will not be available. Immunity rests only for the period of
relationship. Furtherance of commission of crimes cannot enjoy immunity
even made while relationship with lawyer.

If offender says his lawyer that I have committed an offence and you have to
defend me does not constitute offence and immunity shall remain available.
Where client says to his advocate that he has to get property by means of
forged documents and you have to protect me is not covered or protected
from disclosure.
Production of title deed of witness, not a party: A person who is not
party in a case and has a title deed, cannot be compelled to produce such
title deed as evidence unless owner of the property consents.
Person who may criminate by producing evidence shall not be tried on the
statement he gives as witness. He may be compelled to give evidence but his
evidence, whatsoever is, cannot be used against him as confession. This
protection does not amount privilege, but it is mere protection. Under
privilege person cannot be compelled to produce evidence but under
protection he may be compelled to produce evidence but his evidence shall
remain evidence and not confession.
Person who has not privilege, if is compelled to give evidence and he refuses
to give evidence is supposed of guilty of false evidence and if he gives true
statement then he may be charged. By this way truth remains concealed. In
order to find out the truth to reach on conclusion, law gives protection to
witness to ensure the justice.
Production of documents relating to other: Where a person holds
documents relating to other cannot be compelled to produce such documents
as evidence unless its actual master consents.
Accomplice: He is a person who helps in an offence. He may not commit an
offence physically but by the reason of common intention either express or
implied, he is held guilty of an offence and he is liable to the same
punishment for what principal offender is. He may assist the principal
offender before or after the commission of an offence.
Question arises that whether an accomplice is competent witness. As far as
English law is concerned, he is not only competent witness but conviction can
be awarded on his evidence. He alone is sufficient for conviction. Approver
(an accomplice who turns Kings evidence) is also accused thus competent
witness.
Exception to this rule: Pakistani law provides an exception to this rule for
the offences, which come under Hudood crimes (AjU efY). Hudood crimes are
those, which are, declared crimes in Quran expressly and their punishment
has been fixed under Quran. They are not compound-able. They are seven in
number including theft, alcohol consumption, adultery, dacoity, sedition,
slander of woman (defamation), and apostasy. Accomplice is not competent
witness in Huddon crimes. Only Muslim adult male witnesses, about whom
the Court is satisfied, having regard to the requirement of tazkiyah alshuhood (erA lM), that they are truthful persons and abstain from major sins

(Kabir jJ), give evidence of the accused having committed the offence liable
to Hadd.
Evidentiary value: Piece of evidence determines the liability and
punishment of an offender. Witness is also taken into consideration. His
education and character are also factors, which evaluate weight and value of
evidence. Approver betrays his companions in the dock and who has no
scruples either in exaggerating (overstate, larger than normal) their part in
the crime or in substituting in a well thought out narrative a completely
innocent man for friend whom he is still anxious to save. In evidence his self
interest may involve. In order to save skin he may state which is not
committed. Corroboration (acknowledgement or affirmation) of his evidence
from an independent source may testify truth. But punishment mere on his
evidence may lead to injustice. Although Pakistani courts are not bound by
law to corroborate his evidence but under law corroboration is desirable.
Accomplice is presumed unworthy unless rebutted. Article 129 of Qanun-eShahadat Order, 1984, provides that court may presume the unworthiness of
the accomplice.
Number of witnesses: As a general rule, only one witness either male or
female is sufficient for conviction. But as far as Hudood crimes are concerned
Quran and Sunnah determine the number of witnesses.
In all other matters than of Hudood crimes, mere one witness is sufficient for
conviction.
Financial and future obligations need two males or one male and two females
witnesses for conviction.
Relevancy of facts: There are two kinds of facts for which evidence is
adduced in court, i.e., facts in issue and relevant facts. Facts in issue are
those which are alleged by one party and denied by the other on the
pleadings, in a civil suit; or alleged in the charge and denied by the plea ofnot
guilty in a criminal case, so far as they are in either case material. On the
other hand, the relevant facts are all those facts which are in the eyes of law
so connected with or related to the fact in issue that they render the latter
probable or improbable or roughly throw light upon them.
A files suit against B for the recovery of Rs. 5,000/-. If B admits the borrowing
of Rs. 5,000/- then no fact in issue shall be framed thus no evidence shall
have be adduced to prove the fact. But if B refuses the fact of borrowing of
Rs. 5,000/- then A shall be required to adduce evidence to prove the lending
of Rs. 5,000/-. Fact in issue is the matter undecided. Only evidence may prove
the truth of the facts. Any fact against which court needs evidence to prove it
is called fact in issue.
If B admits the borrowing of Rs. 5,000/- but alleges its repayment to A is
again fact in issue thus requires evidence to prove the fact of repayment,
which A denies.

Some time relevant facts prove the truth of facts in issue. For instance,
denial of B can be proved through the Cheque issued to him while the receipt
of Money Order can prove repayment. In this way Qanun-e-Shahadat is
applicable both on facts in issue and relevant fact to testify truth.
How the relevancy is proved? Law provides list of relevant facts, which more
or less covers all the matters, which may occur.
Relevancy of facts forming part of same transaction: All the facts,
which are so, connected with the same transaction immediate or later,
proximity or remote, or direct or indirect are relevant facts thus they form
single fact. For example, delivery of goods involves several intermediaries
who successfully deliver the goods. Each delivery constitutes relevant fact.
A good example of what different acts constitute one and the same
transaction, is afforded by a case where the prisoner in order to remove a
cart of which he committed theft, broke into the cattle-shed of a neighbour of
the cart owner, took out the bulls and drove off the cart to a distant place. It
was held that the house breaking into the neighbors shed was essential to
the theft of the cart and bulls of the owner, so that one could not be done
without the other. And therefore, the two acts, i.e., house breaking and
removal of the cart and the bulls formed parts of the same transactions.
In a house breaking, the person who cuts the glass of the door or either on
spot or before or later, is relevant fact in the case of house breaking.
What is transaction: The term transaction has been defined as a group of
facts so connected together as to be referred to by a single legal name, as a
crime, a contract, wrong, or any other subject matter of inquiry which may be
in issue.
Extra-judicial confession Article 37: The word confession has not been
defined in anywhere in law. A confession is an admission made at any time by
a person charged with a crime, stating, or suggesting the inference that he
committed that crime. The value of extra-judicial confession is not very high.
A confession must either admit in terms the offence or at any rate
substantially all the facts, which constitute the offence.
Extra-judicial confession is made before the private person, i.e., other than
Magistrate or Police Officer. Judicial confession is made before Magistrate
having jurisdiction in the case.
Confession in jail before fellow prisoner is extra-judicial confession because it
is not made before Magistrate. Confession using threat, inducement, or
promise is not reliable. Authority before whom confession is made must be
high such as landlord and tenant, officer and subordinate, headman and
cultivator etc. This is made to avoid any blackmailing or any other evil cause.
This confession is not only extra-judicial but also irrelevant and not liable to
use against accused.

Some time a person makes confession for temporal (secular, non-spiritual)

purposes before private person. It is not acceptable at all in law. There may
be threat to his family, parents, and children etc. It becomes relevant if it is
made voluntarily.
Confession to police not to be proved Article 38: Police Officer is not
authorized to take the statement of confession. If any accused confesses
before police officer, his confession shall not be used against accused. It is
not material whether accused was aware the person before he has made
confession is police officer. This confession cannot be used against accused.
Also under Article 39, confession made by accused before Police Officer while
custody cannot be proved against him unless it is made in the immediate
presence of Magistrate. The presence of Magistrate secures the free and
voluntary of the confession and the confessing person has an opportunity of
making a statement uncontrolled by any fear of the police.
An English woman under arrest on a charge of murder was taken in a tonga,
from the place where alleged offence was committed, to the principal town of
the district. A European friend drove with her in the tonga and a mounted
policeman rode in front. In the course of journey the policeman left
the tonga and went to a slowly along the road for some miles without any
escort. In the absence of the policeman, the accused made a communication
to her friend with reference to the alleged offence. At the trial it was proposed
to ask what the accused had said, on the ground that she was not then in
custody, and that this Article did not apply. It was held that, notwithstanding
the temporary absence of the policeman, the accused was still in custody,
and the question could not be allowed while the accused was in lockup of the
Magistrate under trial. Magistrate sent him at hospital for treatment. Two
policemen, who waited outside on the verandah of the hospital, took him
from the lockup to the dispensary. During his examination inside the
dispensary by the doctor, the accused made a confession of his guilt to
another patient who happened to be there within the hearing of the doctor. It
was held that the confession was inadmissible, because the accused, who
was in police custody upto his arrival at the hospital, remained in that
custody even though the policemen were standing outside on the verandah.
Confession in consequences of discovery Article 40: If the confession of
the accused is supported by the discovery of a fact it may be presumed to be
true and not to have been extracted. It comes into operation only:
1. There must be a fact discovered.
2. The fact must have been discovered in consequence of some information
received from the accused.
3. The fact discovered must be relevant.
4. The person from whom information is received must not only be an
accused but must also be in the custody of the police.

5. The information sought to be used in evidence must distinctly relate to

the fact discovered.
If upon the information of the accused, crime weapon is discovered while he
is in police custody, his confession is supposed to be true.
Where police already knows the happening of the crime, then the information
provided by the accused are not called confession.
S. 164 of Code of Criminal Procedure applies on this type of confession. It
must be recorded before Magistrate. Magistrate shall explain to person that
he is not bound to confess and his confession may go against him. His
confession must be voluntary. Magistrate certifies the confession as provided
in this section and puts his signature.
Confession before Imam is admissible because he is public person and not a
policeman thus relevant to prove the guilt of accused. Confession before a
policeman who acts as Imam is not confession at all because law
categorically prohibits it.
Philosophy of punishment: Punishment is not taken as revenge. It has
philosophy behind it. There are four major points, which supports it. They are
as follows:
1. Crime must be punished, as it is evil as against public, which should not
be left without tracing.
2. It is deterrence (restriction, hindrance, control, limitation) to public as
public remains away in doing such things result of which is not desirable.
3. It is deterrence to offender himself, as he should not commit such offence
again to prevent himself from punishment.
4. Offender is put to jail as jail prevents offender himself and others to suffer
from offences.
Confession after removal of danger Article 41: Where accused makes
confession voluntarily after the removal of impression caused by inducement,
threat, or promise are relevant and used in proceedings. Where confession is
made in Panchayat (OB), it is held inadmissible.
Relevant confession under certain circumstances Article 42: Where
accused is not bound to confess and confesses voluntarily is relevant. A
relevant confession does not become irrelevant because it was made:
1. Under a promise of secrecy.
2. In consequence of a deception practiced on the accused.
3. When the accused was drunk.

4. In answer to questions which the accused need not have answered.

5. In consequence of the accused not receiving a warning that he was not
bound to make it and that it might be used against him.
6. After removal of inducement.
7. After removal of threat.
8. Before lower rank.
9. Before private person.
10. Before Police Officer where is recovery.
11. After withdrawal of promise.
Statements made by a person in sleep are not receivable in evidence. But a
statement made by an accused when he is drunk is receivable in evidence. If
a Police Officer gives an accused liqueur in the hope of his saying something
and he makes any statement, that statement is not rendered inadmissible in
evidence. In consequences of question and answering, statement of accused
is considered true. Where accused is not bound to confess, his confession
renders him liable against his guilt. It is notable that above provisions are not
applicable in the cases of Hudood.
Consequences of confession are only for confessor Article 43: Where
more than one persons commit a crime and one of them makes confession in
a trial, it shall be considered only against the person who makes confession.
Joinders of the same crime are not subject of the confession, which is made
from one of them. However such confession is used as circumstantial
evidence against the rest of offenders.
Illustrations: A and B are jointly tried for the murder of C. It is proved that A
said: B and I murdered C. The court may consider the effect of this confession
as against B.
A is on his trial for the murder of C. There is evidence to show that C was
murdered by A and B, and that B said: A and I murdered C.
This statement may not be taken into consideration by the court against A, as
B is not being jointly tried.
In these circumstances, confession of one accused and circumstantial
evidence must be corroborated against the joinder of the crime.
Applicability: Before a statement by one of the accused persons can be
taken into consideration against the other accused, following conditions must
be satisfied:

1. The statement that is sought to be used, against the co-accused must be

a statement that amounts to a confession.
2. The confessing accused must be tried jointly with the accused against
whom the confession is sought to be used.
3. The confessing accused and the accused against whom the confession is
sought to be used must be tried for the same offence, or for attempt, or
abetment thereof.
4. The confession must implicate the maker substantially to the same extent
as it implicates the accused against whom it is to be used.
5. The confession must be duly proved.
Liability of cross-examination Article 44: All accuseds are liable to crossexamination. According to the Constitution of the Islamic Republic of Pakistan
no person when accused of an offence, shall be compelled to be a witness
against himself.
Admission is not proof Article 45: Unless admission constitutes an
estoppel, it is not conclusive and it is always open to its maker to show that
the statements were mistaken or untrue.
Oral evidence Article 70: Facts can be proved by oral evidence where
contents of documents are not available. But it should be direct oral
evidence. It means that person who is eyewitness must appear in court to
testify the truth of the facts. Since he has seen the facts on spot in his
presence therefore his presence in court strengthens the weight of evidence.
Hearsay evidence is not direct evidence. Law demands that there must be
best direct evidence. Document is preferred on oral evidence. Where written
matter is in question, document is the only thing, which can prove the truth
of the dispute. Primary evidence is preferred on secondary evidence.
Secondary evidence is certified copy of public record. It is a document, which
rests in the custody of government officer. He certifies its copy as correct as
original. It bears signature, name, designation, and seal of the attesting
officer. Photocopy from the original document is admissible. Copy from copy
is not acceptable. Counterpart of original document is desirable as secondary
evidence. Counterpart is the similar document prepared and signed by each
party separately. Each document contains only one signature.
Secondary evidence is given where court permits it. Party itself cannot decide
whether primary or secondary evidence is to be produced. It is only court,
which decides the matter on merit. It is allowed in the cases where
circumstances allow. Destruction of documents by way of theft, flood,
earthquake, fire etc. may advance the need of secondary evidence. Where
court satisfies, secondary evidence is permitted. It should be taken into
consideration that intentional or fabricated or artificial destruction of
document is not acceptable as good ground to advance oral evidence.

Direct oral evidence Article 71: Oral evidence must be direct as seen,
heard, perceived, or held that opinion on such grounds.
Secondary evidence is permitted where documentary evidence is lost or not
available due to reasons uncertain. Permission of oral evidence requires
sufficient proof of having no documentary proof. Only court permits oral
evidence. Where once permission for oral evidence is granted, it excludes the
chances to produce documentary evidence later on in any circumstances.
Documentary evidence shall be kept in pocket. Court may say that you were
given the opportunity to testify the truth by documentary evidence, but you
failed to do so, therefore, now your right to produce document shall be
subject of the permission of court or the adverse party. It is, in general, not
granted. Where documentary evidence is available, it excludes oral evidence.
Law says categorically that oral evidence must be direct, that is, if it refers to:
1. Seen fact: A fact, which could be seen, the evidence must be of a
witness who says he saw it. His evidence on the seen facts has more
weight-age than of who has not seen the fact himself. He also knows well
about the circumstances in which incident takes place. He is the direct
source of evidence. Keeping in view of his importance, court considers his
evidence first before going into other sources.
2. Heard fact: A fact which could be heard, the evidence must be of a
witness who says he has heard it. Where in a case of bribe, during the
handing over amount, the actual talk between the person giving and
taking bribe is the determinant factor. Mere observation of bribe is
insufficient to constitute the offence.
3. Perceived fact: A fact, which could be perceived, by any sense or
manner, the evidence must be of a witness who says that he has
perceived it by that sense or that manner. Where death is caused by gas,
evidence of the person who actually smells the gas is relevant.
4. Factual opinion: An opinion, or the grounds on which that opinion is
formed, the evidence must be of a person who holds that opinion on those
grounds. In the case of forgery, the opinion of expert who can distinguish
or compare handwriting or fingerprints is relevant. Since he is expert
therefore his report is best evidence.
Exception: Although in case of oral evidence it must be direct but there are
some exceptions to this rule which are as follows:
Shahadah-ala-Shahadah (eBrA eBq): Where person has been died or left
the country or wants to conceal himself due to security reasons and
possibility of his appearance lacks, a party desirous to produce evidence has
a right to produce Shahadah-ala-Shahadah (eBrA eBq). Where a witness is
under fear that he shall be killed in combat (police contest) can also produce
this type of evidence. Under this type of evidence witness appoints two
witnesses who depose on his behalf. It should be kept in mind that clash in
oral evidence extinguishes its truth-ness.

Evidence can be transferred to two persons where life of innocent person

depends upon evidence of the person who wants to conceal himself and
refrains to appear before court due to reasons certain. Two persons are the
requirement of law as their evidence can be tested against each other while
evidence of one person cannot be tested. So to conclude the case in the
absence of actual witness, evidence of two persons becomes necessary.
How oral evidence is got recorded: There are three main methods
whereby oral evidence can be got recorded, such as:
1. Spoken or oral recording: Where witness is educated and able to
convey his evidence, having well five senses, i.e., has good sight, hearing,
and perception power, must get record his evidence personally by way of
oral evidence.
2. Written recording: Where witness has all requisite qualities except the
power of speaking, i.e., he is dumb (mute, tongue-tied, silent, speechless),
but he may write, he may give evidence by way of writing.
3. In yes or no form: Where witness is deaf (lacking sense of hearing,
hearing impaired, without hearing, unable to hear) and dumb, he can
answer of questions of examiner in chief or cross examiner in term of yes
or no by body gesture (use of sign language, head motion).
Preference of ocular evidence: Ocular evidence is preferred on hearsay
evidence on the grounds of test of eyewitness. Where document has been
lost due to any reason uncertain, evidence of eyewitness can testify its truth
even the person testifying was not signatory on document.
Test of evidence: Court may apply three tests to come to conclusion
whether the evidence given is true. Hearsay evidence is liable to test.
Following are the three tests:
1. Oath: In first place, court takes oath from the witness. It is understood
that the person giving evidence under oath is true. But if, later on, it is
revealed that the evidence given under oath was false, the same
punishment shall be imposed to the person who gave false evidence.
Punishment on false evidence is not forgiven. False evidence is not
tolerated. Particularly when death penalty is imposed on false evidence,
the person upon whose false evidence, innocent person is hanged is also
punished with death penalty. In other cases imprisonment upto ten years
can be given.
2. Cross-examination: In second instance, test which court applies is
cross-examination. If cross-examiner puts right questions to witnesses, it
can infer the reality. True and untrue can be separated. False and truth can
be discovered. Reality can be exposed. Good cross-examination can bring
to light the actual reality.
3. Demeanor (face reading): Finally court may examine the face
expression during the evidence. Court shall look into face and eye

expression. Expressions never speak lie. Eyes and face always speak
truth. Variance in reality and statement appears on face, which testifies
the actual position of statement.
Exception: Evidence under Shahadah-ala-Shahadah (eBrA
applicable in Hudood cases.

eBq)

is

not

Cases in which statement of relevant fact by person who is died or

cannot be found Article 46: Some time person dies and dying makes
person incapable to appear in court to give evidence. There may be some
other reasons for such disappearance like that the person has left the country
or he cannot be found or he is under fear of death, or other reasons
whatsoever relevant are. His statement can be admitted in lieu of his
personal appearance.
There are some exceptions to the Hearsay rule of the evidence. Secondary
evidence of any oral statement is called hearsay evidence. The repetition by
a witness of that which he was told by someone else, who is not called as a
witness is hearsay, and is therefore, as a general rule, inadmissible. The
reasons for this rule are obvious. We can generally trust a witness who states
something, which he himself has either seen or heard; but when he tells us
something, which he has heard from another person, his statement is
obviously less reliable thus unsatisfactory.
A multitude (gathering, collection) of probable contingencies diminishes its
value. The witness may have misunderstood or imperfectly remembered, or
even may be willfully misrepresenting the words of a third person; or the later
may have spoken hastily, inaccurately, or even falsely. Moreover, the person
who is really responsible for the statement did not make it on oath; he was
not cross-examined upon it, and the court had no opportunity of observing his
demeanor when he made it. It is fundamental principle of our law that
evidence has no claim to credibility, unless it is given on oath, or what is
equivalent to an oath, and unless the party to be affected by it has an
opportunity of cross-examining the witness.
Following are the cases in which statement in lieu of evidence is admissible:
1. When it relates to cause of death: Where a person is dying and
cannot appear in court for evidence in offence committed against his body
is not required to attend court. Recording of his statement in the presence
of two witnesses is sufficient to prove offence committed. Only Police
Officer having jurisdiction over subject matter is competent to record such
dying declaration. Person dying knows well about the murderer or guilty
person. He also knows the reasons of such injury. His statement should be
in written form. If he is incapable to write statement, then competent
Police Officer writes the statement in the presence of two witnesses. It
may contain different questions and their answers.
This evidence is admissible only in case where person injured has been
died after getting record of his statement. If he is alive, he must be

produced in court for evidence. In another case, this statement must be in

writing.
Value of the evidence: Evidence given in such a manner has the same
value as evidence given in the ordinary manner. Death penalty may be
given upon this evidence. It is as good as evidence, as ocular evidence is.
Court keeps in view of the smell truth in the evidence.
Case: In an English case an English lady received grievous injury and was
near to death. She was not in such a position to tell her story. Policeman
said her to move her head in yes or no position when he will ask questions
from her. She replied all his questions, which he recorded. Death penalty
was given on this evidence.
Case: In another case witnesses told the story of the person killed. They
said that bullet was fired within 10 to 12 feet distance. After getting injury,
victim turned back and saw his enemy with gun and then recognized the
guilty person who had fired over him. This evidence was not admitted on
the ground that it is not possible for an injured person to turn back for the
recognition of murderer within such distance against the injury caused by
such high velocity gun.
Case: In another case an injured person was taken into hospital and was
kept in lawn for a longer time. His statement was recorded quite after his
arrival in hospital. Evidence was not accepted on the grounds of suspect
that doctors might have tried to fabricate the evidence. Since the smell of
truth was suspected therefore evidence not admitted.
2. Where statement is made during the course of business: Where
person has made his diary in the course of business and left the country
or concealed himself due to any reason, his recordings can be produced in
court as evidence.
For instance, Captain of the vessel maintains the logbook in which he
records day to day transactions such as speed of ship, its direction on
certain time, position in sea, distance from seashore, accident etc. Where
Captain is incapable to appear before court to give evidence due to any
reason, his maintained logbook shall serve the purpose to confirm the
evidence. This evidence is as much as valuable as the evidence given by
the actual person required.
Doctors maintain report while making postmortem. They put all
transactions in register. In the absence of the doctor who has made the
report, such record can be produced in court to prove the facts in lieu of
person who made it.
Entry of death in corporations record is also another instance. Nikah is
entered in prescribed form and it is got registered. Such registry is
conlusive proof of Nikah.

3. Admission against the interest of maker: Where an evidence may

cause injury to the person giving it and his statement may contribute in
the decision or where he may suffer from the pecuniary loss, upon his
behalf, his statement can be put forward to decide case. Where a person
admits the borrowing of Rs. 20,000/- in civil suit, it means he has admitted
the fact against his interest thus his statement serves as valid evidence.
Court always welcomes this sort of admission because it leaves nothing
undone.
4. Where custom proves: Where in the dispute as to claim of ownership
over pasture (grazing land) could not be proved due to non-appearance of
person, then custom of the locality can prove such dispute. There are
certain customary rights of person over pasture, fishing, boating, well,
road etc. The questions whether road is public or private, statement of the
person who knows the facts or village headman are relevant. Person
making evidence certifies in writing that the particular right was
customary.
5. Existence of relationship other person who knows: There are three
types of relationships, i.e., blood, marriage, and by adoption. Where the
relationship is to prove and there is not personal evidence, how such
relationship shall be proved? In the absence of principal witness, other
people who know or have reasonable believe on the existence of
relationship may appear to give evidence. He may be of witness of
solemnization of his marriage or he may have attended his wedding
anniversary or his sons birthday ceremony. Marriage certificate can prove
existence of relationship. Any other person who has special knowledge
can submit his written statement.
6. Proof of Will: Where Will is written and got registered, shall be enough
to prove the existence of relationships. Personal appearance shall become
immaterial. When court issues the certified copy of Will, which is called
Probate, proves the relationship. Special mean of knowledge of the facts
of relationship proves the case. Pedigree tree is such a thing to prove
relationship. Family settlement, which is written, is also proof of
Will. Tombstone (memorial, headstone, or piece of stone fixed on grave
(iAl `)) can also be determinant factor. Family portrait in which all relatives
are shown is also proof. It should be noted that this writing must be made
before the dispute is arisen. Fabrication can be put into writing when
dispute arises, therefore, statement produced in court should be prior
written.
7. Creation of rights: Where rights are created in favour of others like
grazing rights or fishery rights etc., deed in which such rights are created
is conclusive proof of right. Where document or deed is not available the
circumstances such as sub lease may prove the creation of right of certain
person or persons.
The question is whether A has a right to a fishery. A deed conferring the
fishery on As ancestors, a mortgage of the fishery by As father, a

subsequent grant of the fishery by As father, irreconcilable with the

mortgage,
particular
instances
in
which
As father exercised the right, or in which the exercise of the right was
stopped by As neighbors, are relevant facts.
8. Several eyewitnesses: Where a person makes a caricature and fifty
persons watch it and make protest considering it defamation are not
required to appear before court to prove incident. Mere presence of one
person shall be considered sufficient to prove case. For instance, A sues
B for a libel expressed in a painted caricature exposed in a Station
Housing Officer . The question is as to the similarity of the caricature and
its libelous character. The remarks of a crowd of spectators on these
points may be proved.
Relevancy of certain evidence for proving in subsequent proceeding
the truth of facts therein stated Article 47: Where a person gives
evidence in a judicial proceedings or before any person authorized by law is
relevant in later stage even if he conceals himself later on. Prior evidence is
admissible. This provision has some exceptions:
1. Similar proceedings: Proceedings should be same otherwise evidence
shall not be relevant.
2. Same parties: Proceedings should be within same parties or their
representatives. Where parties are not same, such evidence becomes
irrelevant.
3. Right and opportunity of cross-examination: Right of crossexamination was provided to adverse party. They also had opportunity to
cross-examine. Whether they availed or not the opportunity is irrelevant,
but mere the provision of right and opportunity is sufficient to consider the
evidence.
4. Similarity of the questions: Questions should be same in the first and
subsequent proceedings. Minor change is negligible. Substantial similarity
is required.
Relevancy of certain judgement in probate, etc., jurisdiction Article
55: Where a judgement in personam is pronounced, it is considered
conclusive proof. For example, where dispute between A and B is
pronounced against B shall not affect to C who is not party to this case. This
Article consists on two parts. The first part makes the final judgement, order,
or decree of a competent court in the exercise of probate, matrimonial,
admiralty, or insolvency jurisdiction relevant, the second part makes the
judgements conclusive proof in certain matters. But as far as judgement in
rem is concerned, it not considered conclusive proof generally. But there are
some exceptions to this rule such as:
1. Probate: Where court issues certified copy of Will, it effects the
necessary and proper parties of the case either they are present or not in
court. Their consents become irrelevant. Where court issues certified copy

of Will, it can be produced as relevant fact in other cases. The grant of

probate is conclusive proof of the title of executors and of the genuineness
of the Will admitted to probate. The conclusiveness of the probate rests
upon the declared Will of the Legislature. The grant of probate is the
method, which the law specially provides for establishing a Will. Probate
ceases the legal character of demised person. He is now no more owner of
the property in question.
2. Matrimonial: Where divorce takes place and judgement is pronounced it
becomes conclusive proof being the separation of the two persons. It is
relevant for other party. A judgement of a matrimonial court, decreeing
divorce or nullity of marriage is binding as to the status of the parties
concerned. It is conclusive upon all person that the parties have been
divorced and that they are no longer being husband and wife. But a
judgement in a suit for restitution of conjugal rights is a purely private suit
between two persons, and such a judgement is not a judgement in
rem within the meaning of this Article.
3. Admiralty: Where matter is related with merchant navy, it affects others.
It is relevant for other party. Admiralty jurisdiction is conferred on several
High Courts by Letters Patent. It ceases its legal character.
4. Insolvency: Where a person has been declared insolvent, he affects
others who are solvent. His insolvency becomes relevant for others. A
previous judgement passed on a compromise is a judgement in
rem within the meaning of this Article and is therefore no bar to a
subsequent suit. Judgement is relevant and conclusive proof for other
solvent associated parties. Judgement declares the legal character of
solvent into insolvent. He ceases to be a solvent.
Conclusive proof: When final judgement is pronounced, it becomes
conclusive proof in all cases above noted. Once the case has been decided it
is binding on all parties and relevant as well. Ignorance or consent of others
remains no relevant and important.
Relevancy of judgement in rem Article 56: Any judgement, which is in
rem, is relevant for other parties but it is not conclusive proof, which it
includes. This judgement can be considered but not as conclusive proof.
Under this Article judgements relating to matters of a public nature are
declared relevant, whether between the same parties or not. It also forms
exception to the general rule that no one shall be affected or prejudiced by
judgement to which he is not a party or privy. The exception just stated is
allowed in favour of verdicts. Judgements, and other adjudication upon
subject of a public nature, such as customs, pre ions, tolls, boundaries
between parishes (district), counties, or manors (large house), rights of ferry,
liabilities to repair roads, or sea-walls, moduses, and the like. In all cases of
this nature, as evidence of reputation will be admissible, adjudication, which
for this purpose are regarded as a species of reputation, will also be received,
and this, too, whether the parties in the second suit be those who litigated
the first, or be utter strangers.

These exceptions are based on the principle that in matters of public right the
new party to the second proceeding, as one of the public, has been virtually a
party to the former proceeding and therefore, he is properly excused. For the
application of this Article two conditions are necessary. Firstly, that the
judgement must relate to a matter of public nature and secondly, that it
satisfies the first requirement that it is not a judgement which is admissible
under either of the last preceding two Articles.
Example: A sues B for trespass on his land, B alleges the existence of a
public right of way over the land, which A denies.
The existence of a decree in favour of the defendant, in A suit by a
against C for a trespass on the same land, in which C alleged the existence of
the same right of wae1