What is hearsay evidence and what are its exceptions?

(1) Introduction:

The Qanoon e Shahadat Order, 1984 has provided that the oral evidence always should be direct. In fact, only direct evidence is admissible and it is mandatory to rely upon such evidence. Reason is that direct evidence is original, positive and pregnant with first hand and fresh knowledge. It reveals that Qanoon-e-Shahadat Order does not allow admission of hearsay evidence. However, exception has also been provided against direct evidence and in favour hearsay evidence.

Article 71 of QSO, 1984

(2) Meaning of hearsay evidence

Hearsay evidence means that evidence, which is given by that witness, who does not personally have knoweldge of that thing about which he/she gives such evidence. In fact, such evidence is dependent on credibility of someone, who is other than witness.

(3) General Rule as to Hearsay Evidence

Keeping in view the provision of Article 71 of the Order, it may be numerated as a general rule that “Hearsay Evidence is no Evidenc” Under the Article 71 of QSO, 1984 , it may be numerated that Hearsay Evidence is no Evidence.

Following articles of Qanoon-e-Shahadat reveal that hearsay evidence can be admissible in certain circumstances, and. therefore, it is wrong to opine that hearsay evidence is no evidence.

  • (i) Article 46 0f QSO
  • (ii) Article 47 of QSO

(i) Article 46 0f QSO

According to Article 46 of Qanoon-e-Shahadat Order. Hearsay evidence can be admissible when some person, who is dead or cannot be found or has become incapable of giving evidence or whose ttendance cannot be procured with out delay or expense, gives written or verbal statement of relevant facts in following cases:

  • (a) Cause of death
  • (b) Course of business
  • (c) Against interest of maker
  • (d) Opinion about public right or custom or matter of public or general interest
  • (e) Existence of relationship
  • (f) Will or deed about family affairs
  • (g) Document about transaction
  • (h) Several persons

(a) Cause of death

When such statement is about cause of maker’s death or about any of those circumstances, which resulted in maker’s death, such statement is considered relevant.

(b) Course of business

If such statement is made in course of business, such statement is considered relevant.

(c) Against interest of maker

Maker When such statement is made against maker’s won pecuniary or proprietary interest or when maker’s such statement is true but it can expose him/her to criminal prosecution or to suit for damages, such statement is considered relevant.

(d) Opinion about public right or custom or matter of public or general interest

If such statement gives opinion about existence of public right or custom or matter of public or general interest, such statement is considered relevant.

(e) Existence of relationship

When such statement is about existence of any relationship of blood, marriage or adoption between persons, such statement is considered relevant.

(f) Will or deed about family affairs

If such statement is about existence of any relationship of blood, marriage or adoption between persons and such statement is made in any will or deed about affairs of maker’s family, such statement is considered relevant.

(g) Document about transaction

When such statement is about any transaction by which right or custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence, such statement is considered relevant.

(h) Several persons

If such statement was made by a number of persons, and expressed feelings or impressions on their part and those feelings or impressions were relevant to matter in question, such statement is considered relevant.

(ii) Article 47 of QSO

According to Article no. 47 of Qanoon-e-Shahadat Order, hearsay evidence is admissible in later stage of some judicial proceeding or in subsequent judicial proceeding especially in following circumstances:

  • (a) If witness is dead
  • (b) If witness cannot be found
  • (c) If witness is incapable of giving evidence
  • (d) If witness is kept out of way
  • (e) If witness’s presence cannot be obtained

(a) If witness is dead

If some witness gives evidence in judicial proceeding or before some authorized person and this witness becomes dead, then such evidence is relevant to prove truth of those facts, which it states, and such evidence is relevant for this purpose in subsequent judicial proceeding or in later stage of the same judicial proceeding especially when proceeding was between the same parties or their representatives-in-interest or when adverse party in first proceeding had right and opportunity of cross-examination or when questions in issue were substantially same in first as well as in second proceedings.

(b) If witness cannot be found

If some witness gives evidence in judicial proceeding or before some authorized person and this witness cannot be found, then such evidence is relevant to prove truth of those facts, which it states, and such evidence is relevant for this purpose in subsequent judicial proceeding or in later stage of the same judicial proceeding especially when proceeding was between the same parties or their repesentatives-in-interest or when adverse party in first proceeding had right and opportunity of cross-examination or when questions in issue were substantially same in first as well as in second proceedings.

(c) If witness is incapable of giving evidence

If some witness gives evidence in judicial proceeding or before some authorized person and this witness is incapable of giving evidence, then such evidence is relevant to prove truth of those facts, which it states, and such evidence is relevant for this purpose in subsequent judicial proceeding or in later stage of the same judicial proceeding especially when proceeding was between the same parties or their representatives-in-interest or when adverse party in first proceeding had right and opportunity of cross-examination or when questions in issue were substantially same in first as well as in second proceedings.

(d) If witness is kept out of way

If some witness gives evidence in judicial proceeding or before some authorized person and this witness is kept out of way by adverse party, then such evidence is relevant to prove truth of those facts, which it states, and such evidence is relevant for this purpose in subsequent judicial proceeding or in later stage of the same judicial proceeding especially when proceeding was between the same parties or their repesentatives-in-interest or when adverse party in first proceeding had right and opportunity of cross-examination or when questions in issue were substantially same in first as well as in second proceedings.

(e) If witness’s presence cannot be obtained

If some witness gives evidence in judicial proceeding of before some authorized person and presence of this witness cannot be obtained without unreasonable delay or expense, then such evidence is relevant to prove truth of those facts, which it states, and such evidence is relevant for this purpose in subsequent judicial proceeding or in later stage of the same judicial proceeding especially when proceeding was between the same parties or their repesentatives-in-interest or when adverse party in first proceeding had right and opportunity of cross-examination or when questions in issue were substantially same in first as well as in second proceedings.

 

Qanoon e Shahdat Questions for LL.B and Others.

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