In law the third person or expert witness is one who is skilled by special study or experience and has adequate knowledge of the subject. As a general rule a witness is allowed to speak to such facts only as are within his personal knowledge, any of his person opinion or belief are considered irrelevant. But opinion of third persons or expert’s opinion assist the court in coming to a correct conclusion.
(2) Relevant Provisions:
Article 59 to 65 of QSO 1984 are relevant provision related to the topic.
( 3) Who are Third Persons?
When the court has to form an opinion upon a point of foreign law or of science, or art or as to identify of handwriting or finger impression, the opinions upon the point of persons specially skilled in such foreign law science or art, or in question as to identify of handwriting or finger impressions are relevant facts. Such persons are called experts.
(4) Definition of an Expert:
Expert can be defined generally in following words, “An expert is a person who has acquired special skill or experience on particular subject”.
(5) According to Black’s law dictionary:
An expert is a person, who through education or experience has developed skill or knowledge in a particular subject, so that he or she may form an opinion that will assist the fact finder.
(6) Article 59 of OSO 1984:
According to Article 59 of Qanoon-e-Shadat Order 1984 “A person who is specially skilled in foreign law, science or art or in question as to identify of handwriting or finger impressions or as to the functioning, specification programming and operations of information system is called an expert.
(7) Opinion when constitute are Relevant fact:
The general rule is that the oral evidence is not evidence and a person must depose to fact with in his own knowledge. There are following exceptions to this rule when the opinion of third person is relevant.
(8) Experts Opinion: (Article 59)
When the court has to get some assistance on an opinion about a point of foreign law or of science or of arts, or as to identify of handwriting or finger impressions the opinions upon that point of persons especially skilled in such foreign law, science or art or in questions as to identify to handwriting or finger impressions are relevant.
Opinion of experts or third persons are relevant when the court has to form an opinion upon a following point.
- (i) Foreign Law:
- (ii) Science or Arts:
- (iii) Handwriting:
- (iv) Finger Prints:
- (v) Electronic Documents:
(i) Foreign Law:
Foreign law is law, which is not in force in Pakistan. witness who is called to prove a point of foreign law must be either a practicing lawyer or person holds some official position which requires and therefore presume a knowledge of that law.
(ii) Science or Arts:
The words science or arts are to be broadly construed so as to include all subjects on which a course of special study or experience is necessary to the formation of an opinion.
It is asserted that in every persons manner of writing there is a certain distance prevailing character which can be discovered by observation and being once known can be afterward applied as a standard to try other specimen of writing, the genuine of which is disputed.
(iv) Finger Prints:
The knowledge of finger prints is a science and the evidence of persons conversant with this science is admitted on principles similar to those governing the admissibility of the evidence of experts in writing.
(v) Electronic Documents:
When the court has to form an opinion as to authenticity and integrity of electronic documents made by or through an information system, the opinion of an expert of information system is relevant.
(10)Evidentiary value of third persons opinion:
The general rule is that the expert evidence is not evidence and the third person must dispose to facts within his own knowledge.
(11) Facts bearing upon opinions of experts:
The opinion of an expert is open to corroboration or rebuttal. The fact which can support inconsistent the relevant opinion of expert under Article 59 are also relevant article 60, in other words saying that the opinion of an experts is open to rebuttal.
(12) Opinion as to handwriting when relevant (Article 61):
When the court has to Form an opinion as to the handwriting of any person the opinion of a person acquainted with the handwriting of such person is admissible in evidence.
Under Article 61 any person other than an expert, who is acquainted with the handwriting of another may give his opinion as to the identity of the handwriting.
A person is said to be acquainted with the handwriting of another person when,
(i) He has seen that person write, or
(ii) In the ordinary course of business has become familiar with such persons handwriting through the receipt of communications purporting to be written by him.
(iii) When in the ordinary course of business documents purporting to be written by that person have been habitually submitted to him.
(14) Opinion as to existence of right or custom when relevant (Article 62):
When the court has to form an opinion as to the existence of any general custom or right the opinion as to the existence of such custom or right, the opinion as to the existence of such custom or right of persons who would be likely to know of its existence if it existed, are relevant.
The expression “general custom or right” includes customs or rights common to any considerable class of persons.
Application of Article 62:
The Article 62 does not necessarily require that the person stating his opinion should have personal knowledge of the existence of the right or custom. He will be qualified to state his opinion if he is in a position to know the existence of custom or usage in question in his locality.
Opinion as to usages, tents, etc, when relevant:
When the court has to form an opinion as to:
The usage and tents of any body of men or family, the constitution and government of any religious are charitable foundation, or the meaning of words or terms used in particular districts or by particular classes of people. The opinions of person’s having special means of knowledge there on, are relevant fact.
Opinion on relationship when relevant:
When the court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct, as to the existence of such relationship, of any person who as a member of the family or otherwise has special means of knowledge on the subject is a relevant fact. Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce Act 1869 (IV of 1869) or in prosecutions under section 494 or 495 of Pakistan Penal Code (Act XLV of 1860).
To conclude it can be stated that expert opinion is relevant and admissible merely to aid the court in forming its opinion. The court is not bound to accept the opinion of the third person. Opinion of the expert is only admissible when the subject is one which requires the opinion of a skilled person.
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