9:00 PM, 23/12/2014 Online Discussion.... Rule for Group Discussion..... 2day Admin Muhammad Shahbaz Tahir-Advocate is unable to join the discussion, so i m going to paste material on his behalf... Procedure is that all members will share their knowledge about the topic through comments.... If some one want to ask question, he will ask through comments, later on, sir shahbaz will answer through comments.... Subject: Q.S.O.... Topic 1: Definitions or interpretation Clause Interpretation Clause, Section or Article of any Statue is always about Definitions of the terms used in that Statue. Interpretations make one clear about the peculiar and specific meanings of Terms exclusively and particularly used in that statue. In Q.S.O. 1984 it is Article 2. Most of the definitions are self-sufficient, those which needed any explanation, have been explained under the heading of EXPLANATION. ( Soft Copy: in bold and italic are the text copied from Q.S.O. 1986) 2. Interpretation: (1) In this Order, unless there is anything repugnant in the subject or context— (a) Court includes all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence; During arbitration proceedings evidence is not recorded on oath as arbitrators are not such empowered to administer the Oath, furthermore Q.S.O. is not applicable on arbitration Proceedings. Furthermore terms Court and judge have been defined more specifically in Pakistan Penal Code. Word judge has also been defined in Sec. 19. P.P.C. which is as under ; 1. Judge includes the person who is officially designated and appointed as judge also every person-- 2. who has the powers by law to pass, a definitive judgment in legal proceeding of civil or criminal nature 3. the one who is among a body of persons, is empowered by law to pass such Judgment. Illustrations (b) A Magistrate who can convict a person to prison for any period, is a Judge. As per PPC words Court of Justice have been defined in sec. 20, as; 20. Court of Justice. The words Court of Justice denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially. by the words judicial proceedings and acting judicially it is meant that evidence during proceedings is being recorded on oath. (b) Document means 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 recording that matter; Illustrations A writing is a document; Words printed, lithographed or photographed are documents ; A map or plan Is a document; An inscription on a metal plate or stone is a document ; A caricature is a document. EXPLANATION. MOVIE FILM AND PICTURE are documents (2002 Pcr.LJ 1765) EVIDENCE (c) Evidence includes; Evidence primarily has two types 1st Statements 2nd Documentary Evidence. STATEMENTS (i) all statements which the Court permits or requires be made before it by witnesses, in relation to matters of fact under inquiry ; such statements are called oral evidence ; EXPLANATION & EXAMPLES Examination in Chief, Cross Examinations and Re-Examinations, Statements recorded Under Sec. 164 Cr.PC are examples of Statements. Further examples of such statements are made by 1. Eye witness. Who directly witnesses the occurrence. 2. Chance witness: who saw any occurrence by chance. 3. Star witness: the one who is victim or abductee. 4. Witness of last seen. The one who has seen Abductee/deceased for the last time in the company of accused, Alive. 5. گواہ وج ٹکر: the one who saw accused persons prior or after the occurrence in a situation that raised in his mind they have committed that offence. 6. Formal witness: Witnesses of the state like police officials, doctors etc are often termed as Formal witnesses. there are many other terms used for different types of witnesses as Stalk witness, Pocket witness. PROCEDURE OF MAKING THESE STATEMENTS. All such evidence is forwarded in court Orally i.e. the witness makes an oath جو کہوں گا سچ کہوں گا، جھوٹ نہیں بولوں گا ، عدالت سے کوئی بات نہیں چھپاونگا۔ اگر میں جھوٹ بولوں یا کوئی بات چھپائوں تو اللی مجھ سے ناراض ہو And then deposes all, court translates the deposition in Court’s Language (English) and this this statement is completed. Then witness is subjected to cross examination by adverse party in the same manner. DOCUMENTARY EVIDENCE (ii) all documents produced for the inspection of the Court; such documents are called documentary evidence ; EXPLANATION & EXAMPLES Title Deeds (PLD 1987 588 Karachi) , Cheques, Promissory Notes, Currency Notes, Receipt’s, FIRs, reports of Experts, i.e. hand writing (1968 SCMR 1226) reports of Chemical Examiner, Reports of Serologist. Report of Forensic Science agency, Medico-legal Certificates, Post Mortem Reports , Memorandum of Identification Parade Proceeding etc. are examples of Documentary Evidence. PROCEDURE Each document, in order to be presented in court as Documentary evidence needs to be in Original or Attested Copy to be admissible. A document when presented is EXHIBTED i.e shown to presiding Officer of the Court and marked as EXH. PA. EXH PB ……. Where Exh. Means Exhibited and P stands for Prosecution, meaning thereby that such document was presented by Prosecution/Plaintiff. In case of Document produced by Defense/defendant EXH. DA is endorsed on document and here D stands for Defense/Defendant. Exhibited document becomes admissible and part of Judicial File in evidence and is read by Judge at the time appreciation of Evidence. Mere Photocopy of a document is not admissible in evidence (PLD 1986 AJ&K page 1) FACT (d) fact includes— (i) anything, state of things, or relation of things capable .of being perceived by the senses EXPLANATION & EXAMPLES 1. HEARING : Hearing some one .Voice is a fact, For example Oral defamatory Statement للکارا، دھمکی، 2. VISION: Watching a person at a specific place and Time is a FACT 3. TOUCH: Being Cold of HOT, dry or wet is FACT as it can be perceived by Touching. 4. TASTE: being Sweet or Sore etc. is fact that can be perceived by tasting 5. SMELL: a thing Smells Good or not. Is FACT being perceivable by smelling Illustrations (a) That there are certain objects arranged in a certain order in a certain place, is a fact. (b) That a man heard or saw something. Is a fact. (c) That a man said certain words is a fact. (ii) any mental condition of which any person is conscious. EXPLANATION. & EXAMPLES: Mental condition (Mens Rea or not) of any person is fact which includes feeling of Anger , hatred, compassion, Love, Affection, Point of views, Views and Opinion about repute and character of a person and Opinions etc are examples mental conditions CODED EXAMPLES ARE (d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense or is or was at a specified time conscious of a particular sensation is a fact. (e) That a man has a certain reputation is a fact. RELEVANT FACT (2) One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of the Order relating to the relevancy of facts. EXPLANATION As per Art. 18. Evidence may only be forwarded to the extent of Facts in Issue and Relevant fact. This is to restriction the production of irrelevant and unnecessary evidence to save time of the courts. For better understanding for relevant fact one should must understand FACT IN ISSUE, First. Which is defined under Art 2(3) of QSO. Relevant fact is a fact which one way or the other, directly or indirectly, concretely or circumstantially, connected to the fact in issue. For Example If Fact in issue is “whether A stabbed B to death with a Dagger or not?” purchasing of Dagger is relevant fact. Chapter three of QSO (art. 18 to Art.69) is exhaustive in this respects, (E)The expression “automated”……… (posted as Photo comment below) (f) The expression “certificate” …… (posted as Photo comment below) FACT IN ISSUE (3) The expression facts in issue includes any fact from which, either by itself or inconnection with other facts the existence, non-existence, nature or extent of any right,liability or disability, asserted or denied in any suit or proceeding, necessarily follows. Explanation: Whenever, under the provisions of the law for the time being in force relating to civil procedure, any Court records on issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue. EXPLANATION. Fact in Issue are the Fact(s) which one party asserts and other denies, hence raising an Issue. Some most relevant and simple examples are…. In a criminal Case: A Charge Framed Under Sec. 242 Cr.PC in case of magisterial Courts and under 265(D) in case of Session Trial are facts in Issue. In civil Cases: Framed Issues are Facts in Issue. CODED Illustrations A is accused of the murder of B. At his trial the following facts may be in issue:— that A caused Bs death ; that A had intended to cause Bs death ; that A had received grave sudden provocation from B ; that A, at the time of doing the act which caused Bs death, was by reason of unsoundness of mind, incapable of knowing its nature. PROVED, DISPROVED and UNPROVED Facts PROVED FACT Art.2 (e 4) A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. DISPROVED FACT. Art. 2 (e 5) A fact is said to be disproved when after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. UNPROVED FACT Art 2 (e 6) A fact is said not to be proved when it is neither proved nor disproved. PRESUMPTION Presumption means a presupposition and belief about a certain fact. Following are two definitions which allow courts to Presume facts as proved. Some of these presumptions are mandatory and others are discretionary. DISCRETIONARY PRESUMPTIONS Art 2. (e 7) Whenever it is provided by this Order that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. This article allows courts of law to consider some facts as PROVED Ipso facto that QSO has empowered them to presume. Such Facts are mentions Art 90 to 101. For example, Under Art. 100 QSO, court may presume that a document older than 30 years is true as to signature, execution and handwriting etc. OBLIGATORY PRESUMPTIONS. Art 2.(e 8) Whenever it is directed by this Order that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. EXPLANATION : its Obligatory for a court to presume Facts under Article 91 to 95 and 99 and 101 of QSO are presumed to be taken as Proved. CONCLUSIVE PRESUMPTION. Art. 2. (e 9) When one fact is declared by the Order to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. This article is introduced to limit the sphere of evidence or material to be put before court. That birth during marriage is conclusive prove of legitimacy . Example of such sort of presumption is given under article 128.
Posted on: Tue, 23 Dec 2014 16:11:01 +0000
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