Definition of “Evidence” Under Article 2 of Qanun-e-Shahadat Order 1984

Evidence

Scope of Definition of “Evidence” Under Article 2 of Qanun-e-Shahadat Order, 1984

Article 2(1)(c) of the Qanun-e-Shahadat Order (QSO) 1984 defines “evidence” in the following words:

“All statements which the court permits or requires to be made before it by witnesses in relation to matters of facts under inquiry; such statements are called oral evidence and, all documents produced for the inspection of the court; such documents are called documentary evidence.”

Upon deliberation, these provisions show that they are incomplete as they lack the inclusion of an important type of evidence, that is material or physical evidence, which is independent of other oral or documentary evidence, and has considerable influence over the outcome of decisions by a court while determining a case or issue at hand.

Such evidence has been described to include material objects produced before the court for inspection. This inspection generally takes place inside the courtroom, however, it may be necessitated outside the court as well when, due to the bulk and volume of evidence, it is not feasible or convenient for the objects to be produced before the court. In other cases, inspection of objects may be necessary in close context to their surroundings.

No exhaustive description can be given as to what physical evidence includes. The following enumeration contains its common instances:

  • spent bullets,
  • live rounds,
  • bullet empties,
  • vehicles in connection to a crime or for determining damages in civil claims,
  • blood stained earth,
  • blood stained clothes,
  • weapons of offence such as rifles,
  • blood stained weapons such as knives,
  • narcotics substances,
  • alcoholic substances,
  • the appearance of a person and the demeanor of a witness,
  • viewing of machinery, apparatus and utensils,
  • observing the reaction of animals like cats and parrots towards rival claimants,
  • viewing of buildings and landscapes,
  • information recorded on a computer without the intervention of human minds, etc.

The question is, why did Sir James Fitz James Stephan, the drafter of the Indian Evidence Act I of 1872 (now QSO 1984), leave out the inclusion of ‘material’ evidence from the definition of evidence?

A closer look at the definition of evidence contained in Section 3 of the 1872 Act (now Article 2(1)(c) of QSO 1984) reveals that it has its own peculiarity. The function of the definition is to give certainty and precision to the phrase which has been defined and to avoid repetition. However, in law, like in every other discipline, there are problems with definitions and legal interpretation of words. In general, we define things by looking at the ways in which words have been used historically and currently, and also by ascribing new meanings or components to them. As terms and concepts become more complicated, the need arises for more comprehensive and inclusive definitions.

Sidney Phipson defines evidence in the following words:

“Evidence means testimony whether, documentary, oral or real, which may be legally received in order to prove or disprove a fact in a dispute.”

Putting this into perspective makes the definition of the evidence truly remarkable. In the original Act of 1872 the opening phrase contained the words “…evidence means and includes…” The phraseology used had its own significance. Traditionally, where a term has been defined and given meaning by using the word “means” is where the definition has been held to be restrictive and exhaustive. On the other hand, if a term has been defined and declared to “include” other things, the definition is apparently extensive. However, where both the words “means” and “includes” have been used, the definition is considered to be exhaustive. The word “means” gives the term its ordinary, natural and popular meaning. It restricts the categories so declared or enumerated. Meanwhile, the word “includes” suggests that there are other categories one can think of. However, in a certain context, the word “includes” may be a word of limitation and refer to “comprises” or “consists of”. In the 1984 Order, the very wording used, which is “includes”, clearly suggests that the definition is not all-embracing. It is rather open-ended. The lawmakers would have been fully cognizant of the situation when the Bill had come under their scrutiny at the time of passing of the 19872 Act. Instead of including the category of ‘real’ evidence in the definition, they left it open-ended with a view that the definition of the term “evidence” might permit other components not categorized in it. Such omission might have been warranted because of the variety of the forms of real evidence.

There is, however, a slight difference in the scope of the definition of evidence with regard to the Evidence Act and its modified counterpart the Qanun-e-Shahadat Order 1984. In the former, the opening phrase is somewhat exhaustive, while in the latter it is rather extensive in scope. But it is clear that during the later enactment, when the Act was being reviewed for its Islamization in 1984, the opening phrase of the definition was abridged with regard to the words “it means”. These words were omitted while the phrase “it includes” was retained. The intention seems to have been to make the definition more extensive. Despite a brief mention of material objects in Article 71 of the Qanun-e-Shahadat Order 1984 and the use of the word “includes”, the present definition cannot be so stretched so as to include ‘real’ evidence in it as well.

Besides the distinction between oral, documentary and ‘real’ evidence, there is another classification under which ‘real’ evidence may be contrasted with direct evidence. In such a scenario, ‘real’ evidence is called circumstantial evidence. The testimony of witnesses regarding what they have seen is called direct evidence, while all facts in the form of objects may be referred to as circumstantial evidence. ‘Real’ or circumstantial evidence, when properly handled and preserved, may in certain cases outweigh direct evidence. This is similar to the saying that goes, ‘people can lie but objects cannot’. The increasing importance of the ‘real’ evidence as circumstantial evidence necessitates its inclusion in the definition of evidence under Article 2 of the Qaun-e-Shahadat Order so that it properly effectuates the fair and proper administration of law in changing times.

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References/Bibliography

  • The Law of Evidence IH Dennis Edition, 1999, Sweet & Maxwell PP 379-386.
  • Sarkar Law of Evidence PP 53-54, Vol: I, 19th
  • The Power of writing David W. Chapman & Preston Lynn Waler, 1994, Mayfield Publishing Company, PP 179-186.
  • Interpretation of Statutes B.M Gandhi, Eastern Book Company, 1st Edition 2006, PP 69-74
  • Principles of Statutory Interpretation Justice GP Singh 12th Edition 2010 PP 178-195
  • Maxwell on Interpretation of Statutes, 12th Edition by PSt. J. Langer PP 270-274

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Muambar Khan

The writer is a lawyer based in Swat, Khyber Pakhtunkhwa and is also an Advocate of the High Court and former Additional District & Sessions Judge. He is a social and political activist with keen interest in legal, social and political issues. He has contributed to many national and international journals, law magazines and newspapers.