QANOON-E-SHAHADAT
The object of Qanoon -e- shadat order is to provide structure, to the effect that any fact intended to be established has to be in accordance with scheme and rules oe Qanoon-e-shadat, and if any argument which is based on plausibility and on mere presumptions would have no effect.
The aim of Qanoon-e-shahadat is to revise, amend and consolidate the law of evidence, so as to bring it in conformity with the injunctions of Islam as laid down in the Holly Quran and Sunnah.
The qanoon-e-shahadat order 1984, applies to all judicial proceedings, e.g., civil proceedings, criminal proceedings, etc. before any court, but it does not apply to proceedings which are not judicial.
It can be concluded that Qanoon-e-shadat order provides rules, kinds, types of evidences and the manner of recording evidences of witnesses as well as consideration of documents in evidence, etc.
The rule of law of evidence is that a witness should state the facts in his knowledge in the court; and if he remembers any fact but does not recollect the exact detail; he can have a resort to any document containing the detail. Same rule is enacted under Articles 155 through 157 of the Qanun-e-Shahadat Order, 1984. But if a witness has refreshed his memory; there is a right to inspect and use the same for the purpose of cross-examination.
Relevant Provisions:
Articles 155 though 157 of
Qanun-e-Shahadat Order,1984
Concept of refreshing of memories:
A witness may refresh his memory while
giving evidence; Justice Munir stated this concept in his book Law of Evidence
in following words; “Although a witness should always state what he himself
remembers he may nevertheless while giving evidence refresh his memory as to
details by referring to documents made by himself or by his order at or very
shortly after the date on which the event in question occurs”
Scope of Articles 155-157:
Sections 159-161 of the Evidence
Act, 1872 (Articles 155-157 of Qanun-e-Shahadat Order, 1984) deals with the extent
to which and the mode in which a witness may refer to a writing in order to
refresh his memory while giving evidence. (Justice Munir, The Law of Evidence)
Purpose of rule Envisage under
Articles 155-157:
The reason of the rule of refreshing
of memory is to protect witness from suffering from a mistake and enable him to
explain an inconsistency (Holiday vs. Holgate)
Persons who can refer their memory
as provided under Qanun-e-Shahadat Order, 1984:
Following persons are allowed to
refresh their memory;
- an expert witness;
- witness who recollects the facts; and
- Witness who does not recollect fact.
Refreshing of memory by an expert
witness:
Under Article 155 (4) an expert may
refresh his memory by referring to professional treatise made by him with
reference to case under consideration.
Refreshing of memory by the person
who recollects the facts:
Under Article 155 a witness may
refresh his memory by referring to any writing made by him; if he actually
recollects the circumstances to which he is deposing by reference to that
writing, he can with the help of the writing swear to the facts.
Condition precedents to invoke the
provision of Article 155:
- While asking for refreshing of memory the witness must ensure that;
- He actually recollects the facts of the case;
- Writing so intended to be used was made or read by him;
- Writing was made at the time of transaction or soon afterward;
- Witness believes that writing is correctly made.
Scope of Article 155:
Article 155 contemplates a case
where a witness on being shown writing made or read by him at the time when the
facts were fresh in his mind can recall in his mind the fact recorded therein
and having thus revived his memory deposed to those facts.
Refreshing of memory where the
witness does not recollects the facts of the case:
Article 156 facilitate a witness
testifying facts as mentioned in Article 156 without specific recollection; if
he is sure that the facts deposed were correctly recorded by him in the
document.
Requirements of Article 156:
- Witness has no recollection of facts;
- Witness had made or read document;
- Writing was made or read at the time or soon after the transaction;
- The witness is sure that the document was correctly made.
Parameter to determine correctness
of record made:
Article 156 requires the witness to
affirm that he is sure that the facts were correctly recorded in the document.
The witness’s reliance on correctness of document rests on two reasons;
- Recollection of facts;
- General practice.
On first hand he may distinctly
recollect his state of mind at the time of making or first seeing the record
and may thus passed judgment upon and know the record’s correctness. (Wigmore
747)
On the other hand he may know from
his general practice in making such records or from other indications on the
paper that he must have passed judgment upon and knows the correctness of
record. Here he nonetheless knows the correctness of the record although he has
no present recollection of the specific state of mind. (Taylor 1412)
Probative force of evidence under
Article 156:
A statement by the witness that he
is sure that the facts were correctly recorded in the document is not
conclusive.
Scope of Article 156:
If the witness though has no
recollection is sure that the facts were correctly represented in the document
at the time he wrote it or read the same; the document may be given in evidence
on the witness swearing to that fact.
Right of cross-examination of
adversary:
Article 157 gives the opposite party
a right of inspection of document used in the court for the purpose of
refreshing memory of the witness. And for this purpose court requires the party
using document for refreshing of memory to produce it in the court. The adverse
party has right to see it and to cross examine the party using the document to
refresh memory.
Expert opinion
Expert opinion
General rule is that the opinions of
a witness, who have not seen, heard or perceive the alleged incident by him is
not relevant. However Article 59 to 65 is exceptions to this rule. It is
provided that the opinion of witnesses possessing peculiar skill is admissible,
whenever the subject matter of inquiry is such that inexperienced persons are
unlikely to prove.
Relevant Provisions:
Article 59 of Chapter III of the
Qanun-e-Shahadat Order, 1984
Definition of term “Expert”
Expert is a person professionally
acquainted with science or practice. (Strickland)
Powell define the term “Expert
witness” in following words; “An expert witness is one who has devoted time and
study to a special branch of learning and thus is specially skilled on the
point on which he is asked to state his opinion”
Qualifications of an expert:
Lord Russal determined in Air 1931
PC 189; that the expert is one who is “Peritus, skilled and has adequate
knowledge”
Opinion of an expert under Article
59:
Under Article 59 the opinion of an
expert is permissible any of the following matters are in issue;
Foreign Law: Although court can take
judicial notice of foreign law; what the whole law of foreign country is at a
particular time can’t be proved except by calling an expert. (AIR 1956 cal 48)
Science or Art:
Under Article 59 opinion of an
expert is relevant where a question of science or art is involved. The term
science is constructed by the court under AIR 1959 pat 534 as a “great
proficiency, dexterity and skill based on long experience and practice”
Identity of hand writing:
For the purpose of proving the hand
writing the opinion of experts or of the persons having acquaintance with it is
admissible. However the evidence of handwriting expert is neither only nor the
best method of proving hand writing.
Finger impression:
The opinion of an expert formed by a
comparison of thumb impression on the document with those taken in the court or
before the sub-registrar is admissible in evidence. (AIR 1926 cal 531)
Electronic documents:
Authenticity and integrity of
electronic document made by or through an information system is to be checked
by expert as to the functioning, specification programming and operation of
information system.
Necessity of expert witness on
expert witness:
Evidence of experts on the expert
opinion is necessary when occurrence is not witnessed by eye witnesses and case
entirely depends upon the circumstantial evidence.
Value of expert witness:
The evidence of expert witness is
only a piece of evidence whish has to be examined and appraised like any other
evidence. (1991 PCrLJ 2049)
Expert witness should be examined by
the court.
Court should satisfy itself as to
the value of evidence of an expert in the same way as it must satisfy itself of
the value of other evidence.
Expert evidence may be corroborated.
Conviction can’t be based upon
expert witness.
The value of expert witness rests
upon the skills of expert and the cogency of reasons on which it is based;
however the court should pay attention to the expert opinion where it is purely
of scientific nature.
Scope of Article 59:
The evidence of experts can only be
admitted where Qanoon-e-Shahadat Order allows and not otherwise.
Leading Question
Leading Question
A question that suggest the witness
its answer; that the person putting the question desires to get in it is said
to be the leading question. Leading question can’t ordinarily be asked during
examination in chief or re- examination because the witness is presumed to be
biased in favor of the party examining him and might thus be prompted. But
leading question is almost always allowed during cross-examination.
Relevant provisions:
Article 136 through 138 of Chapter X
of the Qanoon-e-Shahadat Order, 1984
Cross Reference:
Article 132, 133, 150 and 143 of the
Qanoon-e-Shahadat Order, 1984
Meaning of leading question:
A leading question is suggestive
question, i.e. a question which suggests the answer that the interrogator
wishes or expects to receive, or which embodying a material fact admits of
conclusive answer by a simple negative or affirmative. (Nicholl vs. Dowding 18
RR 746)
The term leading question is defined
under Black’s Law Dictionary in following words;
“A question that suggests the answer
to the person being interrogated; esp. a question that may be answered by a
mere yes or no”
Determination of leading question:
It is the discretionary power of the
court to determine; whether leading question should be permitted and the
responsibility for that permission entirely rests on the court.
Leading Questions are not in
generally allowed to be put in examination in chef and re-examination:
Leading question cannot be asked in
examination-in-chief or re-examination only if objected by other party such
question therefore can be asked if they are not objected by other party.
Reason of rule:
The reason of rule is that the
witness is presumed to be favorable to the party calling him who knowing
exactly what the former can be proved might prompt him to give only the
advantageous questions.
Discretion of the court:
Even where a leading question is
objected; it is discretion of the court to allow it or disallow it and discretion
will not be interfered with by a court of appeal or revision except in extreme
case.
Exceptions to the principle of
unacceptability of leading question during examination-in-chief:
There are some well known exception
to the rule that leading question can’t be asked in examination-in-chief and
re-examination.
Introductory question:
Leading question is allowed when a
witness is asked about matter preliminary to the main topic of controversy.
Undisputed matters:
Matters essential to be brought
before the court; but are not themselves in controversy such a witness’s name,
age, residence, relationship to the parties and the like. There is no danger of
improper suggestions therefore; the rule disallowing question is relaxed in
favor of questions as to such matter. (Wigmore 775)
Matters sufficiently proved:
To abridge the proceedings and bring
the witness as soon as possible on to the material points on which he is to
speak, counsel may lead him on to that length and may recapitulate to him the
acknowledged facts of the case which have been already established. (Taylor
1404)
As to identity of person or things:
For the purpose of identifying a
person or things the attention of the witness may be directly pointed to them.
Witness to contradict another
witness:
Where one witness is called to
contradict another as to expression used by the latter the former may be asked
not merely what was said, but whether the particular expression were used,
since otherwise a contradiction might never be arrived at. (Phipson on Evidence
6th edn 468-469)
To assist memory of the witness:
Where the witness is unable without
extraneous aid to revive his memory on the desired point, i.e. where he
understand what he is desired to speak about but can’t recollect what he knows;
his recollection being exhausted may be aided by a question suggesting the
answer. (Wigmore 778)
Hostile witness:
Under Article 150, leading questions
are generally allowed to be put to a witness who, by his conduct in the
witness-box obviously appears to be hostile to the party calling him.
Witness’s want of understanding:
Where the witness is a child or an
illiterate or an alien and doesn’t appreciate the tenor of the desired details
and is therefore, unable to say anything about it, a question calling attention
specifying to the details may be allowed when other means have failed. (Wigmore
778)
Permission of the court:
Where the court while exercising its
discretionary power to allow leading question; the same can be asked.
Objection has not been raised:
Where the adverse party doesn’t
raise objection as against the leading question put on witness; it is allowed.
Leading question can be asked during
cross-examination:
Leading question may be asked in
cross-examination. The purpose of cross-examination being the test of accuracy,
credibility and general value of the evidence given and sift the fact already
stated by the witness; it sometimes become necessary for a party to put leading
question in order to elicit facts in support of his case, even though the fact
so elicited may be entirely unconnected with facts testified to the
examination-in-chief.
Exception to the rule that leading
question may be asked in cross-examination:
There are certain exceptions to the
rule that leading question may be asked in cross examination. These are as
follow;
The counsel is not allowed to go to
the length of putting the very words into the mouth of the witness which he is
to echo back. (Taylor)
A question which assumes facts as
proved which have not been proved or which assumed that particular answer have
been given in fact have not been given is not permissible either in
examination-in-chief or cross-examination. (Taylor)
Privileged Communication
What are privileged communications?
Write detailed note on communication during marriage and professional
communication.
Introduction:
Article 4 through 15 of
Qanoon-e-Shahadat Order 1984, explains the necessity of privileged
communication such privileges are provided for public purpose and or the
benefit of defense counsel. However it can be waived if falls within exception
enunciated by law.
Relevant provisions:
Article 4 through 15 of
Qanoon-e-Shahadat Order, 1984
Definition of “Privileged
Communication”:
Under Black’s Law dictionary this
term is defined in following words, “A communication that is protected from
forced disclosure”
Types of privileged communication:
Basically there are two types of
privileged communication recognized under Qanoon-e-Shahadat Order, 1984. On one
hand there are certain communications which can’t be disclosed even if the
person having knowledge is willing to disclose them; the bar on this type of
communication is absolute while on other hand there are certain communications
which can be disclosed at the instance of person subject to law.
Communications declared privileged
under Qanoon-e-Shahadat Order, 1984:
Article 4 through 14 of the
Qanoon-e-Shahadat Order, 1984 laid down the communication declared to be
privileged under this order; these are as follow;
- Conduct of Judge or Magistrate under Article 4;
- Communication during marriage under Article 5;
- Evidence as to affairs of state under Article 6;
- Official communication under Article 7;
- Communication as to commission of offences under Article 8;
- Professional communication;
- Privilege from production of title deed of witness, not a party;
- Production of document which another person having possession, could refuse to produce.
Communication during marriage:
Article 5 of Qanoon-e-Shahadat
Order, 1984 protect from disclosure of communication between husband and wife.
The protective provision is based on the wholesome principle of perceiving
domestic and conjugal confidence between spouses.
Ingredients of Article 5:
“A person who is or has been
married” here the word “Married” denotes the couple bind in legal wed lock and
illegal or void marriage is not subject to this Article.
“Compelled to disclose” this
expression implies that the party concerned is made or allowed to say or do
something by a way of disclosing a communication made during marriage.
“During marriage” means a
communication made to the woman before marriage is not protected but the
privilege continues even after the marriage has been dissolved either by death
or divorce.
“Permitted to disclose any such
communication”:
The term permitted indicates that
even if the witness is willing to disclose in a criminal trial a confession
made to the witness by the husband or wife of the accused the statement will be
inadmissible.
Basis of Article 5:
The rule enunciated under this
Article rest on the obvious ground that the admission of such testimony would have
a powerful tendency to disturb the peace of family, promote domestic broils and
to weaken if not destroy feelings of mutual confidence which is the most
endearing solace of married life.
Two fold application of Article 5:
Article 5 is of two fold application;
it deals with;
- Privilege of witness; and
- Privilege of witness’s spouse.
Privilege of witness covers all
cases where the witness does not wish to disclose the communication. Whereas
privilege of witness’s spouse is also guaranteed as the communication made
during the subsistence of marriage is protected even is the witness is willing
to disclose the matter.
Waiver of privilege:
There are certain situations where
the privilege under Article 5 has been waived out; either by lawmaker or by
court of law; these cases are as follow;
- Consent of spouse;
- Suit between married parties;
- Criminal proceedings against the spouse;
- Matrimonial communication may properly be proved by the evidence of stranger.
Nature of Article 5:
The prohibition enacted by the
Article rest on no technicalities that can be waived but is founded on a
principle of high import which no court is entitled to relax.
Professional communication:
Under Article 9 through 12 neither
the adviser nor his interpreter, clerk or servant is permitted to disclose any
communication made to him in the course and for the purpose of professional
employment of such legal adviser.
Principle envisage under Article 9
through 12:
Article 9 to 12 deal with
professional communication; between a legal adviser and a client the same are
protected from disclosure.
Basis of rule laid down under
Article 9 to 12:
The rule is founded on the
impossibility of conducting legal business without professional assistance and
on the necessity in order to render the assistance effectual, for securing full
and unreserved intercourse between the two. Phipson evidence 12th
edn 242
Rational behind the principle
envisaged under Article 9 to 12:
If such communication were not
protected; no man would dare to consult a professional adviser with a view to
his defense or to the enforcement of his right and no man could safely come to
the court with a view to enforce or defend his right.
Professional communication under
Article 9:
Under Article 9 communication
between the counsel and his client are privileged whether at the time they were
made; there was not any pending or prospective litigation and whether the
client is or is not a party to the proceedings.
Essential ingredients of Article 9:
“No Advocate”
The word advocate has been used for
every type of legal practitioner; whether he be a barrister or lawyer of a
lower court.
“At any time be permitted”
A communication is privileged where
the case has been refused by the advocate and even after the relationship cease
to exist.
“By or on behalf of client”
Such communication is privileged if
made by the person other than a client only if he made so in the course or for
the employment of such advocate.
Right when can be waived:
- With the consent of client;
- Communication made in furtherance of illegal purpose;
- Where some kind of fraud has been committed;
- Where court order to produce document in possession of lawyer;
- Where lawyer attests document as a witness;
- Where legal adviser’s knowledge of fact is not derived through communication;
- Where same legal adviser is engaged by both of the parties;
- Suit by the legal adviser against client.
The privilege extends to
interpreter, clerk and servants of lawyer:
The protection though confined to
communications between a client and his legal adviser is extended by Article 10
to all necessary organs by which such communications are effected; therefore an
interpreter, clerk or servant of a lawyer can’t disclose which his master
cannot.
Confidential communication with
legal advisers under Article 12:
Under Article 12 the client cannot
be compelled disclose anything he communicated to his lawyer; unless he offers
himself as a witness.
Admissions
ADMISSIONS
Admission is a statement oral or
documentary which suggest any inference as to any fact in issue or relevant
fact and which is made by any of the person under particular circumstances; admissions
are admissible evidence in civil as well as in criminal law if made against the
interest of the maker because making any statement which is against the general
nature of human being.
Relevant provisions:
Articles 30 through 36 of the
Qanoon-e-Shahadat Order, 1984 cover the topic of admissions.
Meaning of the term “Admission”
Stephen defines admissions in
following words;”An admission is a statement, oral or written suggesting an
inference as to any fact in issue or relevant fact or deem to be relevant to
any such fact made by or on behalf of any party to any proceeding”
Case Law:
AIR 1957All 1 “An admission is
concession or voluntary acknowledgement made by a party or someone identified
with him in legal interest of the existence of certain facts which are in issue
or relevant to an issue in the case”
Admission as an admissible piece of
evidence:
Under Article 30 of the
Qanoon-e-Shahadat Order, 1984 admissions are admissible piece of evidence.
Under common law admission is considered to be the genesis of confession which
can become the sole ground of conviction. Admission can be declared a
conclusive proof against the maker. It is mentioned in Phipson on Evidence
(Page 231 9th edn.1952) subject to certain exceptions, the general
rule in both civil and criminal cases is that any relevant statement made by a
person is evidence against himself.
Rational behind the admissibility of
admission as evidence:
A statement made by the person
against his interest is presumed to be true.
Persons whose statements are
admissions:
- A statement is admission only if is made by any of the following person;
- Statement by the parties to the proceedings under Article 31;
- Statement made by the agent authorized by such person under Article 31;
- Statement made by the representatives of the parties;
- Statement made by the parties jointly interested in the subject matter of proceedings;
- Persons from whom the parties to the suit derived their interest or title of subject matter of suit;
- Persons whose position or liability is necessary to prove against party to the suit;
- Persons expressly referred to by the party to the suit.
Explanation of each:
Statement by the parties to the
suit:
With respect to the persons whose
statement are receivable as admission, the general rule is that the statement
must be either, of a party to the proceeding or one other identified in
interest with the party to the proceedings (Taylor).
Admissions by the agent:
Law of agency construes every act
done by agent or every statement given by him under the cover of his agency as
the act or statement of principal himself. Thus admission made by agent is
admissible for or against principal. This rule is called rule of “Legal
identity.” Admissions by following persons amount to admission by agent.
- Admissions by Government servants on behalf of Government;
- Admissions by officers of corporation and firms;
- Admissions by counsel or solicitor on any question of fact;
- Admission by guardian or manager of court of wards.
The fact of agency must be somehow
evidenced before the alleged agent’s declaration can be received as admission.
Statement by the representatives:
Under Article 31 any admission by a
person in his representative character is also admissible. Following are valid
examples of representatives;
- An Executor;
- An administrator; and
- A trustee.
Circumstances where the admission in
representative character is admissible:
Under Article 31 the statements made
by the parties to suits suing or sued in a representative character, are not
admissions, unless they were made while the party making them held that
character.
Admissions by the persons jointly
interested in the subject matter of the proceedings:
Statements made by the persons who
have any propriety or pecuniary interest in the subject matter of the suit are
receivable as admission; e.g. admission by the predecessor-in-title of the
parties; by trustee; by joint contractor or joint tenants; by co-plaintiff or
co-defendants. But this type of admissions is admissible only if the admission
relates to the subject matter in dispute and is made by the person declaring in
the character of the person interested with the party against whom the evidence
is tendered.
Admissions by the persons from whom
parties derive their interests:
Admission is relevant if made by the
persons from whom the parties to the suit have derived their interest in the
subject matter of the suit during the continuance of the interest of such
person.
Admissions by the person whose
position must be proved as against the party to the suit:
Under Article 32 an admissions of
third person against his own interest when it effects his position or liability
and when the position or liability and when the position or liability has to be
proved against a party to the suit; is relevant against the party.
Illustration:
“A” undertakes to collect rent for
“B”. “B” sues “A” for not collecting rent from “C” to “B”. “A” denies that the
rent was due from “C” to “B”; a statement by “C” that he owed “B” rent is an
admission and it is relevant against “A” if “A” denies that “C” did owe rent to
“B”.
Admissions by the persons expressly
referred to by the parties to the suit:
Under Article 33 if a man refers
another upon any particular business to a third person, he is bound by what
this third person says or does concerning it as much as has been done or said
by himself.
Article 33:
“Statements made by persons whom a
party to the suit has expressly referred for information in reference to matter
in dispute are admissions”
In English law, admission by referee
on matter of law is as much provable as those of matter of facts.
General rule as to admissibility of
admission in evidence:
Generally admissions are admissible
against but not in favor of the parties to the suit or their representatives;
this rule is enacted under Article 34 but there are certain exceptions to this
rule enunciated by the same Article. These exceptions are;
- Statements which are relevant under Article 46;
- Statement as to state of mind; and
- Statements other than admissions.
Statements which are relevant under
Article 46:
Under Article 46 written or verbal
statements of relevant facts are relevant if;
- Made by the persons subject to Article 46;
- Made under circumstances mentioned under Article 46
Made by the person subject to
Article 46:
Statement of a person is subject to
Article 46 if;
- He is dead;
- He can’t be found;
- He has become incapable of giving evidence;
- His attendance can’t be procured without unreasonable delay.
Circumstances stated under Article
46:
- When it relates to cause of death of the maker;
- When it is made in the course of his business;
- When it is against the pecuniary or propriety interests of the maker;
- When the statement would expose the maker to the criminal prosecution or suit for damages;
- When it gives opinion as to public right or custom or matters of general interest and it was made before any controversy as to such right or custom has arisen;
- When it relates to the existence of any relationship between persons; as to whose relationship the maker has special means of knowledge and the statement is made before the question in dispute arose;
- When it relates to the existence of any relationship with deceased persons if it is made in any will, deed or family pedigree etc and was made before any question in dispute arose;
- When the statement is contained in any deed of will or other documents related to transaction mentioned under Article 26;
- When made by several persons and expresses feelings relevant to matter in question.
competency of witnesses
Article 3 of the Qanoon-e-Shahadat
Order, 1984 deals with the competency of witness; Witness is a person who
depose some fact in issue or some relevant fact in order to prove or disprove
any matter in question. It is worth to note here that the competency to testify
as a witness is a condition precedent to administer witness on oath; it is
distinct matter from the credibility of witness.
Relevant Provisions:
Article 3 and 17 of the
Qanoon-e-Shahadat Order, 1984
Interpretation of relevant terms:
Witness:
Competency:
Competency of witnesses as provided
under Article 3 of the Qanoon-e-Shahadat Order, 1984:
Article 3 provides that in general
every person is competent to testify before court only parameter to determine
the competency of the witness is satisfaction of the court that the person
before the court is capable of giving testimony. However this general principle
is qualified by the Article itself by providing following exceptions to it;
Incapacity to be rational:
In general if a person is unable to
under the question put on them or to give rational answer; he is barred to
testify as the witness to the suit.
Extreme old age:
If a person has lost his
consciousness due to extreme old age to that extend that he is unable to
understand question put on him or to give rational answer to that question; his
testimony is inadmissible before the court.
Tender age:
A minor is restrained to testify any
fact before the court if he’s not yet got rationality to understand question
put on him or to give rational answer to those questions. But if his minority
or tender age has not created any obstacle to understand question or to give
rational answer; in that case his testimony will be counted as valid.
Any bodily injury:
If some bodily injury is of that
type which render the witness unable to understand question put on him or to
give rational answer; even in that matter witness is inadmissible. Blindness,
dumbness, deafness are some examples of it but if such inability can be
overcome witness becomes valid.
Any mental injury:
A mental incapacity also put a bar
on the ability to testify any fact in issue.
Perjury:
Perjury is an offence of
deliberately giving of false evidence before the court of law. Any person who
has been convicted for perjury is debarred from testifying any fact before the
court because he can’t be considered as trustworthy witness. However if the
court is of the opinion that he is penitent; his testimony can be accepted.
Females in haddod laws:
Under hadood laws the woman
testimony is inadmissible.
Witness of accomplice in hadood
cases:
Under Article 16 of the
Qanoon-e-Shahdat Order, 1984 witness of an accomplice is inadmissible piece of
evidence.
Touchstone to determine the
competency of witness:
Under Article 3 and 17 it is
expressly stated that the Quran and Sunnah is the only criteria to determine
the competency of the witness. Now it can be construed as the duty of the court
to keep in mind the injunctions of Islam as laid down in the Holy Quran and
Sunnah. It is determined by the court in PLD 185 Lah 730 that it is only when
the competence of a witness is challenged that the court is required to determine
such incompetence in accordance with qualifications prescribed by injunctions
of Islam as laid down by the Holy Quran and Sunnah.
Rule of determination of competence
of a witness according to injunctions of Islam:
The jurist put forward the concept
of Tazkiya al shahood as a rule to determine competency of witness according to
injunctions of Islam. They are of the view that only this rule contains
all necessary instructions relating to competency of witness.
Concept of Tazkiya al Shahood:
In Dictionary of Islam the concept
of Tazkya al shahood is defined as the “Purigation of witness”
Modes of conducting Tazkiya:
According to Fatawa-e Alamgiry there
are two mode of conducting tuzkiya; these are;
- Open inquiry as to competency of witness; or
- Secret inquiry in the competency of witness.
Open inquiry is conducting by asking
people to give their opinion by either raising hands or by oral testimony.
However secret inquiry is conducted through writing; this method is called
“Masturah”
Persons who can be inquired:
The help of following person can be
taken in conducting tazkiya;
- Persons who are reliable;
- Persons who are acquainted with the life and character of the witness whose competency is challenged.
Purpose of inquiry:
Purpose of inquiry is to make
independent inquiry into the conduct of the witness through independent and
reliable source so that person may not be condemned on “evidence of unjust
person.”
Number of witnesses:
Here Article laid down that the
guidance as to the required number of witnesses in order to prove or disprove
any fact in issue shall be taken from injunctions of Islam as laid down in the
Holy Quran and Sunnah. However this Article embodied the required number of
witnesses in various circumstances.
Number of witnesses in financial
matters:
In financial matters the witness of
2 males or one male and two female witnesses so that one may remind the other
if one forgets is sufficient.
Number of witnesses required in
cases of future obligations:
Witness of two males or one male and
two female witnesses is sufficient.
In criminal matters:
Witness of one male or one female is
sufficient.
In hadood cases:
Matter in this case may be proved
either by confession of accused or by testimony of two or four (varies from
cases to case) is required.
EQUITY REGARDS THAT AS DONE WHICH OUGHT TO HAVE BEEN DONE
EQUITY REGARDS THAT AS DONE WHICH
OUGHT TO HAVE BEEN DONE
The very difference between law and equity is that law looks
into the actions of a person while equity gives credence to the conscience.
Equity construes the undertaking given by someone as his act. It means that a
person is presumed to do what he undertakes. In a simplest way we can say that
equity regards undertaking as a complete, finished act.
Equity treats a contract to do a
thing as if the thing was already done though only in favor of parties entitled
to enforce the contract.
ILLUSTRATIONS TO UNDERSTAND MAXIM:
Under law of equity all agreements for value are considered
as done
All agreements for leases are
considered as leases
PRINCIPLE ENVISAGED BY THE MAXIM:
According to Justice Story the maxim lays down the principle
that equity will treat the subject matter of the contract with relation to its
consequences and incidents in the same manner as if the acts, contemplated,
agreed or undertaken by the contract has been done or performed.
ESSENTIAL REQUIREMENTS TO INVOKE THE
MAXIM:
The essentials requirements to put the maxim in action were
discussed in Walsh vs. Lansdale; these are enlisted below;
- There should be a contract to transfer legal title;
- There must be a substantial evidence to prove the existence of that contract;
- This contract should be capable to enforce;
- The suit must be brought by the parties within the specific time;
- The title so sought to obtain must have legal support.
SCOPE OF THE MAXIM:
The scope of this maxim is limited because it recognizes the
right of performance of an agreement between the parties to the contract only.
The maxim is applicable only to the contractual obligations; favoring the
person who is entitled to get enforced a contract against a person who is under
an obligation to perform it.
CARDINAL RULE GOVERNING THE
MAXIM:
The rule of PACTA SUNT SERVENDA is governing principle of
this maxim.
INADEQUACY OF THE MAXIM:
This maxim can’t be applied against public at large or in
simple words it can’t bound any person who is not concerned with the contract.
This rule is applicable only and only between the parties to the suit.
PRINCIPLES WHICH ARE GOVERNED BY
THIS MAXIM:
This maxim is applicable on the principle of;
Conversion;
- Executory contracts
- Part-performance
DYING DECLARATION:
Dying declaration means such statement, which is given by the dying person. In other words dying declaration is a statement made by a person as to the cause of his death, or as to any of the circumstances of the transaction, which resulted in his death.
WHEN STATEMENTS RELATE TO CAUSE OF DEATH:
According to article (46) sub-article (1), " Statement made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question".
ESSENTIAL CONDITIONS:
To admit dying declaration in evidence, the following necessary conditions must be proved:
1. When statement made by a person as to the cause of his death or to any of the circumstances of the transaction which resulted in his death.
2. When statement made by a person in cases in which the cause of that person's death comes into question and not of another person.
3. Statement made by a person must be competent to testify as a witness under article 3 of qanoon-e-shahadat order
4. A dying declaration is only admissible in evidence when it is proved that the death of the declarant was caused or accelerated by the wounds inflicted by the accused.
5. Before a statement is admitted as dying declaration, it must be proved that the person who made he is dead.
6. Dying declaration must be complete.
EVIDENTIARY VALUE OF DYING DECLARATION.
Dying declaration is a substantive piece of evidence and can be used against the accused, when there is nothing to suggest that the deceased had substituted an innocent person in place of real culprit. so dying declaration when deliberately made under a solemn sense of impending death and under circumstances wherein the deceased is not likely to be mistaken, is worthy of great weight. But, dying declaration which is incomplete and partly touched-up by interested parties cannot be relied upon.
HOW IT IS PROVED
A dying declaration is admissible whether it has been reduced to writing or not. If it has been recorded by a magistrate, who is not a committing magistrate, it must be proved by calling the magistrate as a witness. If it has been recorded by the magistrate in the presence of the accused under section 164 and 364 of criminal procedure code, there arises no necessity of producing evidence to prove it.
If it has not been reduced in to writing in such case it may be proved by the person to whom it was made or who heard it.
Dying declaration means such statement, which is given by the dying person. In other words dying declaration is a statement made by a person as to the cause of his death, or as to any of the circumstances of the transaction, which resulted in his death.
WHEN STATEMENTS RELATE TO CAUSE OF DEATH:
According to article (46) sub-article (1), " Statement made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question".
ESSENTIAL CONDITIONS:
To admit dying declaration in evidence, the following necessary conditions must be proved:
1. When statement made by a person as to the cause of his death or to any of the circumstances of the transaction which resulted in his death.
2. When statement made by a person in cases in which the cause of that person's death comes into question and not of another person.
3. Statement made by a person must be competent to testify as a witness under article 3 of qanoon-e-shahadat order
4. A dying declaration is only admissible in evidence when it is proved that the death of the declarant was caused or accelerated by the wounds inflicted by the accused.
5. Before a statement is admitted as dying declaration, it must be proved that the person who made he is dead.
6. Dying declaration must be complete.
EVIDENTIARY VALUE OF DYING DECLARATION.
Dying declaration is a substantive piece of evidence and can be used against the accused, when there is nothing to suggest that the deceased had substituted an innocent person in place of real culprit. so dying declaration when deliberately made under a solemn sense of impending death and under circumstances wherein the deceased is not likely to be mistaken, is worthy of great weight. But, dying declaration which is incomplete and partly touched-up by interested parties cannot be relied upon.
HOW IT IS PROVED
A dying declaration is admissible whether it has been reduced to writing or not. If it has been recorded by a magistrate, who is not a committing magistrate, it must be proved by calling the magistrate as a witness. If it has been recorded by the magistrate in the presence of the accused under section 164 and 364 of criminal procedure code, there arises no necessity of producing evidence to prove it.
If it has not been reduced in to writing in such case it may be proved by the person to whom it was made or who heard it.
CONCLUSION
it is summed up, that the injured person, who is dead, is generally the principle witness and is likely to know more than any other person about the cause of his death. So if an injured person has stated something about the criminal act, which has made against him, is called dying declaration.
it is summed up, that the injured person, who is dead, is generally the principle witness and is likely to know more than any other person about the cause of his death. So if an injured person has stated something about the criminal act, which has made against him, is called dying declaration.
ESTOPPEL...
Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative officers, or by his own deed, acts, or representations, either express or implied."
This term appears to come from the Old French estoupail (or a variation), which meant "stopper plug", referring to placing a halt on the imbalance of the situation. The term is related to the verb "estop" which comes from the Old French term estopper, meaning "stop up, impede"
Overview...
Where a court finds that a party has done something warranting a form of estoppel, that party is said to be "estopped" from making certain related arguments or claiming certain related rights. The defendant is said to be "estopped" from presenting the related defense, or the plaintiff is said to be "estopped" from making the related argument against the defendant. Lord Coke stated, "It is called an estoppel or conclusion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth."
Because estoppel is so factually dependent, it is perhaps best understood by considering specific examples.
Example 1: A city entered into a contract with another party. The contract stated that it had been reviewed by the city's counsel and that the contract was proper. Promissory estoppel applied to estop the city from claiming the contract was invalid.
Example 2: The creditor unofficially informs the debtor that the creditor forgives the debt. Even if such forgiveness is not formally documented, the creditor may be estopped from changing its mind and seeking to collect the debt, because that change would be unfair.
Example 3: A landlord informs a tenant that rent has been reduced, for example, because there was construction or a lapse in utility services. If the tenant relies on this notice in choosing to remain in the premises, the landlord could be estopped from collecting the full rent.
Estoppel is closely related to the doctrines of waiver, variation, and election and is applied in many areas of law, including insurance, banking, employment, international trade, etc.[citation needed] In English law, the concept of legitimate expectation in the realm of administrative law and judicial review is estoppel's counterpart in public law, although subtle but important differences exist.
Major types..
Reliance-based estoppels—These involve one party relying on something the other party has done or said. The party who did/said the act is the one who is estopped. Under English law, this class includes estoppel by representation of fact, promissory estoppel.
Estoppel by representation of fact (English law name), equitable estoppel (American law)
Equitable estoppel (in English law), including
Proprietary estoppel
Promissory estoppel
Estoppel by record—This frequently arises as issue/cause of action estoppel or judicial estoppel where the orders or judgments made in previous legal proceedings prevent the parties from litigating the same issues or causes of action,
Estoppel by deed (often regarded as technical or formal estoppels)—Where rules of evidence prevent a litigant from denying the truth of what was said or done
Estoppel by silence—Estoppel that prevents a person from asserting something when he had the right and opportunity to do so earlier, and such silence put another person at a disadvantage.
Laches—estoppel in equity by delay. Laches has been considered both a reliance-based estoppel, and a sui generis estoppel.
All reliance-based estoppels require the victimized party to show both inducement and detrimental reliance, i.e.:
there must be evidence to show that the representer actually intended the victim to act on the representation or promise, or
the victim must satisfy the court that it was reasonable for him or her to act on the relevant representation or promise, and
what the victim did must either have been reasonable, or
the victim did what the representer intended, and
the victim would suffer a loss or detriment if the representor was allowed to deny what was said or done — detriment is measured at the time when the representor proposes to deny the representation or withdraw the promise, not at the time when either was made, and
in all the circumstances, the behavior of the representor is such that it would be "unconscionable" to allow him or her to resile.
Estoppel by representation of fact and promissory estoppel are mutually exclusive: the former is based on a representation of existing fact (or of mixed fact and law), while the latter is based on a promise not to enforce some pre-existing right (i.e. it expresses an intention as to the future). A proprietary estoppel operates only between parties who, at the time of the representation, were in an existing relationship, while this is not a requirement for estoppel by representation of fact.
Where one person (‘the representor’) has made a representation of fact to another person (‘the representee’) in words or by acts or conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive) and with the result of inducing the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may afterwards take place between him and the representee, is estopped, as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in proper manner, objects thereto.
An estoppel by representation [of fact] will arise between A and B if the following elements are made out. First, A makes a false representation of fact to B or to a group of which B was a member. [It is not necessary to demonstrate A knew that the representation was untrue.] Second, in making the representation, A intended or [in the alternatively,] knew that it was likely to be acted upon. Third, B, believing the representation, acts to its detriment in reliance on the representation. [It must have been reasonable to rely on the representation.] Fourth, A subsequently seeks to deny the truth of the representation. Fifth, no defence to the estoppel can be raised by A.
A representation can be made by words or conduct. Although the representation must be clear and unambiguous, a representation can be inferred from silence where there is a duty to speak or from negligence where a duty of care has arisen. Under English law, estoppel by representation of fact usually acts as a defence, though it may act in support of a cause of action or counterclaim.
Equitable estoppel (English law)
For the American doctrine of equitable estoppel, see Estoppel by representation of fact.
Under English and Australian legal systems, estoppels in equity include promissory and proprietary estoppels. (Contrast with estoppel by representation, which is a claim (under the English system) at law.) For more information, see Promissory estoppel and Proprietary estoppel below.
Proprietary estoppel..
In English law, proprietary estoppel is distinct from promissory estoppel. Proprietary Estoppel is not a concept in American law, but a similar result is often reached under the general doctrine of promissory estoppel.
Traditionally, proprietary estoppel arose in relation to rights to use the land of the owner, and possibly in connection with disputed transfers of ownership. Although proprietary estoppel was only traditionally available in disputes affecting title to real property, it has now gained limited acceptance in other areas of law. Proprietary estoppel is closely related to the doctrine of constructive trust.
J. Fry summarized the five elements for proprietary estoppel as:
the claimant...
...made a mistake as to his legal rights (typically because the actual owner attempted to convey the property, but the transfer is invalid or ineffective for some reason);
...did some act of reliance;
the defendant...
...knows of the existence of a legal right which he (the defendant) possesses, and which is inconsistent with the right claimed by the claimant;
...knows of the claimant's mistaken belief; and,
...encouraged the claimant in his act of reliance.
Example: A father promised a house to his son who took possession and spent a large sum of money improving the property, but the father never actually transferred the house to the son. Upon the father's death, the son claimed to be the equitable owner. The court found the testamentary trustees (as representatives of the deceased father's estate) were estopped from denying the son's proprietary interest, and ordered them to convey the land to the son.
Equitable estoppel is distinct from promissory estoppel. Promissory estoppel involves a clear and definite promise, while equitable estoppel involves only representations and inducements. The representations at issue in promissory estoppel go to future intent, while equitable estoppel involves statement of past or present fact. It is also said that equitable estoppel lies in tort, while promissory estoppel lies in contract. The major distinction between equitable estoppel and promissory estoppel is that the former is available only as a defense, while promissory estoppel can be used as the basis of a cause of action for damages.
—
For an example of promissory estoppel in the construction industry, suppose that B Ltd consolidates estimates from a number of subcontractors and quotes a single price on a competitive tender. The client accepts B Ltd's quote and construction begins. But one of the subcontractors then claims reimbursement above its original estimate and, because of this change, B Ltd cannot profit from the works. If both parties knew that the accuracy of the individual estimates was critical to the success of the tender and the profitability of the contract as a whole, a court might apply promissory estoppel and allow B Ltd to pay only what the subcontractor originally estimated rather than the new, higher price. But, if both parties hoped that there would be an opportunity to increase the contract prices to reflect additional expenditure, the subcontractor's conscience would not be as limited in seeking a higher payment and B Ltd might be penalised for not building an adequate contingency sum into the tendered price.
One contentious point during the drafting of the Restatement was how to calculate the amount of damages flowing from a promissory estoppel. During the deliberations, the following example was considered: a young man's uncle promises to give him $1,000 to buy a car. The young man buys a car for $500, but the uncle refuses to pay any money. One view was that the young man should be entitled to $1,000 (the amount promised), but many believed that the young man should only be entitled to $500 (the amount he actually lost). The language eventually adopted for the Second Restatement reads: "The remedy granted for breach may be limited as justice requires." — a formula which leaves quantification to the discretion of the court.
Other estoppels...
Pais...
Estoppel in pais (literally “by act of notoriety", or "solemn formal act”) is the historical root of common law estoppel by representation and equitable estoppel. The terms Estoppel in pais and equitable estoppel are used interchangeably in American law.
Convention...
Estoppel by convention in English law (also known as estoppel by agreement) occurs where two parties negotiate or operate a contract but make a mistake. If they share an assumption, belief or understanding of how the contract will be interpreted or what the legal effect will be, they are bound by that belief, assumption or understanding if:
(i) they both knew the other had the same belief, and
(ii) they both based their subsequent dealings on those beliefs.
Some say[who?][by whom?] that estoppel by convention is not truly an estoppel in its own right, but merely an instance of reliance-based estoppel (estoppel by representation would be its most frequent form). Others[who?][by whom?] see it as no more than an application of the rule of interpretation that, where words in a contract are ambiguous, one always interprets those words so as to give effect to the actual intentions of the parties even though that would not be the usual legal outcome.
Estoppel by convention is most commonly invoked if one party wishes to rely on pre-contract negotiation as an aid to construction of the contract, Chartbrook Ltd and another v Persimmon Homes Ltd and another [2009] UKHL 38.
Estoppel by acquiescence...
Estoppel by acquiescence may arise when one person gives a legal warning to another based on some clearly asserted facts or legal principle, and the other does not respond within "a reasonable period of time". By acquiescing, the other person is generally considered to have lost the legal right to assert the contrary.
As an example, suppose that Jill has been storing her car on Jack's land with no contract between them. Jack sends a registered letter to Jill's legal address, stating: "I am no longer willing to allow your car to stay here for free. Please come get your car, or make arrangements to pay me rent for storing it. If you do not do so, within 30 days, I will consider the car abandoned and will claim ownership of it. If you need more time to make arrangements, please contact me within 30 days, and we can work something out." If Jill does not respond, she may be said to have relinquished her ownership of the car, and estoppel by acquiescence may prevent any court from invalidating Jack's actions of registering the car in his name and using it as his
Estoppel by deed...
Estoppel by deed is a rule of evidence arising from the status of a contract signed under seal — such agreements, called deeds, are more strictly enforced than ordinary contracts and the parties are expected to take greater care to verify the contents before signing them. Hence, once signed, all statements of fact (usually found in the opening recital which sets out the reason(s) for making the deed) are conclusive evidence against the parties who are estopped from asserting otherwise.
Conflict Estoppel...
“an inconsistent position, attitude or course of conduct may not be adopted to loss or injury of another” Brand v. Farmer’s Mutt. Protective Assoc of Texas, Tex. App 95 S.W.2d 994, 997. For example, as between two or more claimants, a party that takes multiple and inconsistent legal positions is estopped to assert its positions against another consistent and certain claim, i.e. preferential treatment for certain over uncertain claims.
Issue estoppel...
estoppel when an issue arises.
Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative officers, or by his own deed, acts, or representations, either express or implied."
This term appears to come from the Old French estoupail (or a variation), which meant "stopper plug", referring to placing a halt on the imbalance of the situation. The term is related to the verb "estop" which comes from the Old French term estopper, meaning "stop up, impede"
Overview...
Where a court finds that a party has done something warranting a form of estoppel, that party is said to be "estopped" from making certain related arguments or claiming certain related rights. The defendant is said to be "estopped" from presenting the related defense, or the plaintiff is said to be "estopped" from making the related argument against the defendant. Lord Coke stated, "It is called an estoppel or conclusion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth."
Because estoppel is so factually dependent, it is perhaps best understood by considering specific examples.
Example 1: A city entered into a contract with another party. The contract stated that it had been reviewed by the city's counsel and that the contract was proper. Promissory estoppel applied to estop the city from claiming the contract was invalid.
Example 2: The creditor unofficially informs the debtor that the creditor forgives the debt. Even if such forgiveness is not formally documented, the creditor may be estopped from changing its mind and seeking to collect the debt, because that change would be unfair.
Example 3: A landlord informs a tenant that rent has been reduced, for example, because there was construction or a lapse in utility services. If the tenant relies on this notice in choosing to remain in the premises, the landlord could be estopped from collecting the full rent.
Estoppel is closely related to the doctrines of waiver, variation, and election and is applied in many areas of law, including insurance, banking, employment, international trade, etc.[citation needed] In English law, the concept of legitimate expectation in the realm of administrative law and judicial review is estoppel's counterpart in public law, although subtle but important differences exist.
Major types..
Reliance-based estoppels—These involve one party relying on something the other party has done or said. The party who did/said the act is the one who is estopped. Under English law, this class includes estoppel by representation of fact, promissory estoppel.
Estoppel by representation of fact (English law name), equitable estoppel (American law)
Equitable estoppel (in English law), including
Proprietary estoppel
Promissory estoppel
Estoppel by record—This frequently arises as issue/cause of action estoppel or judicial estoppel where the orders or judgments made in previous legal proceedings prevent the parties from litigating the same issues or causes of action,
Estoppel by deed (often regarded as technical or formal estoppels)—Where rules of evidence prevent a litigant from denying the truth of what was said or done
Estoppel by silence—Estoppel that prevents a person from asserting something when he had the right and opportunity to do so earlier, and such silence put another person at a disadvantage.
Laches—estoppel in equity by delay. Laches has been considered both a reliance-based estoppel, and a sui generis estoppel.
All reliance-based estoppels require the victimized party to show both inducement and detrimental reliance, i.e.:
there must be evidence to show that the representer actually intended the victim to act on the representation or promise, or
the victim must satisfy the court that it was reasonable for him or her to act on the relevant representation or promise, and
what the victim did must either have been reasonable, or
the victim did what the representer intended, and
the victim would suffer a loss or detriment if the representor was allowed to deny what was said or done — detriment is measured at the time when the representor proposes to deny the representation or withdraw the promise, not at the time when either was made, and
in all the circumstances, the behavior of the representor is such that it would be "unconscionable" to allow him or her to resile.
Estoppel by representation of fact and promissory estoppel are mutually exclusive: the former is based on a representation of existing fact (or of mixed fact and law), while the latter is based on a promise not to enforce some pre-existing right (i.e. it expresses an intention as to the future). A proprietary estoppel operates only between parties who, at the time of the representation, were in an existing relationship, while this is not a requirement for estoppel by representation of fact.
Where one person (‘the representor’) has made a representation of fact to another person (‘the representee’) in words or by acts or conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive) and with the result of inducing the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may afterwards take place between him and the representee, is estopped, as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in proper manner, objects thereto.
An estoppel by representation [of fact] will arise between A and B if the following elements are made out. First, A makes a false representation of fact to B or to a group of which B was a member. [It is not necessary to demonstrate A knew that the representation was untrue.] Second, in making the representation, A intended or [in the alternatively,] knew that it was likely to be acted upon. Third, B, believing the representation, acts to its detriment in reliance on the representation. [It must have been reasonable to rely on the representation.] Fourth, A subsequently seeks to deny the truth of the representation. Fifth, no defence to the estoppel can be raised by A.
A representation can be made by words or conduct. Although the representation must be clear and unambiguous, a representation can be inferred from silence where there is a duty to speak or from negligence where a duty of care has arisen. Under English law, estoppel by representation of fact usually acts as a defence, though it may act in support of a cause of action or counterclaim.
Equitable estoppel (English law)
For the American doctrine of equitable estoppel, see Estoppel by representation of fact.
Under English and Australian legal systems, estoppels in equity include promissory and proprietary estoppels. (Contrast with estoppel by representation, which is a claim (under the English system) at law.) For more information, see Promissory estoppel and Proprietary estoppel below.
Proprietary estoppel..
In English law, proprietary estoppel is distinct from promissory estoppel. Proprietary Estoppel is not a concept in American law, but a similar result is often reached under the general doctrine of promissory estoppel.
Traditionally, proprietary estoppel arose in relation to rights to use the land of the owner, and possibly in connection with disputed transfers of ownership. Although proprietary estoppel was only traditionally available in disputes affecting title to real property, it has now gained limited acceptance in other areas of law. Proprietary estoppel is closely related to the doctrine of constructive trust.
J. Fry summarized the five elements for proprietary estoppel as:
the claimant...
...made a mistake as to his legal rights (typically because the actual owner attempted to convey the property, but the transfer is invalid or ineffective for some reason);
...did some act of reliance;
the defendant...
...knows of the existence of a legal right which he (the defendant) possesses, and which is inconsistent with the right claimed by the claimant;
...knows of the claimant's mistaken belief; and,
...encouraged the claimant in his act of reliance.
Example: A father promised a house to his son who took possession and spent a large sum of money improving the property, but the father never actually transferred the house to the son. Upon the father's death, the son claimed to be the equitable owner. The court found the testamentary trustees (as representatives of the deceased father's estate) were estopped from denying the son's proprietary interest, and ordered them to convey the land to the son.
Equitable estoppel is distinct from promissory estoppel. Promissory estoppel involves a clear and definite promise, while equitable estoppel involves only representations and inducements. The representations at issue in promissory estoppel go to future intent, while equitable estoppel involves statement of past or present fact. It is also said that equitable estoppel lies in tort, while promissory estoppel lies in contract. The major distinction between equitable estoppel and promissory estoppel is that the former is available only as a defense, while promissory estoppel can be used as the basis of a cause of action for damages.
—
For an example of promissory estoppel in the construction industry, suppose that B Ltd consolidates estimates from a number of subcontractors and quotes a single price on a competitive tender. The client accepts B Ltd's quote and construction begins. But one of the subcontractors then claims reimbursement above its original estimate and, because of this change, B Ltd cannot profit from the works. If both parties knew that the accuracy of the individual estimates was critical to the success of the tender and the profitability of the contract as a whole, a court might apply promissory estoppel and allow B Ltd to pay only what the subcontractor originally estimated rather than the new, higher price. But, if both parties hoped that there would be an opportunity to increase the contract prices to reflect additional expenditure, the subcontractor's conscience would not be as limited in seeking a higher payment and B Ltd might be penalised for not building an adequate contingency sum into the tendered price.
One contentious point during the drafting of the Restatement was how to calculate the amount of damages flowing from a promissory estoppel. During the deliberations, the following example was considered: a young man's uncle promises to give him $1,000 to buy a car. The young man buys a car for $500, but the uncle refuses to pay any money. One view was that the young man should be entitled to $1,000 (the amount promised), but many believed that the young man should only be entitled to $500 (the amount he actually lost). The language eventually adopted for the Second Restatement reads: "The remedy granted for breach may be limited as justice requires." — a formula which leaves quantification to the discretion of the court.
Other estoppels...
Pais...
Estoppel in pais (literally “by act of notoriety", or "solemn formal act”) is the historical root of common law estoppel by representation and equitable estoppel. The terms Estoppel in pais and equitable estoppel are used interchangeably in American law.
Convention...
Estoppel by convention in English law (also known as estoppel by agreement) occurs where two parties negotiate or operate a contract but make a mistake. If they share an assumption, belief or understanding of how the contract will be interpreted or what the legal effect will be, they are bound by that belief, assumption or understanding if:
(i) they both knew the other had the same belief, and
(ii) they both based their subsequent dealings on those beliefs.
Some say[who?][by whom?] that estoppel by convention is not truly an estoppel in its own right, but merely an instance of reliance-based estoppel (estoppel by representation would be its most frequent form). Others[who?][by whom?] see it as no more than an application of the rule of interpretation that, where words in a contract are ambiguous, one always interprets those words so as to give effect to the actual intentions of the parties even though that would not be the usual legal outcome.
Estoppel by convention is most commonly invoked if one party wishes to rely on pre-contract negotiation as an aid to construction of the contract, Chartbrook Ltd and another v Persimmon Homes Ltd and another [2009] UKHL 38.
Estoppel by acquiescence...
Estoppel by acquiescence may arise when one person gives a legal warning to another based on some clearly asserted facts or legal principle, and the other does not respond within "a reasonable period of time". By acquiescing, the other person is generally considered to have lost the legal right to assert the contrary.
As an example, suppose that Jill has been storing her car on Jack's land with no contract between them. Jack sends a registered letter to Jill's legal address, stating: "I am no longer willing to allow your car to stay here for free. Please come get your car, or make arrangements to pay me rent for storing it. If you do not do so, within 30 days, I will consider the car abandoned and will claim ownership of it. If you need more time to make arrangements, please contact me within 30 days, and we can work something out." If Jill does not respond, she may be said to have relinquished her ownership of the car, and estoppel by acquiescence may prevent any court from invalidating Jack's actions of registering the car in his name and using it as his
Estoppel by deed...
Estoppel by deed is a rule of evidence arising from the status of a contract signed under seal — such agreements, called deeds, are more strictly enforced than ordinary contracts and the parties are expected to take greater care to verify the contents before signing them. Hence, once signed, all statements of fact (usually found in the opening recital which sets out the reason(s) for making the deed) are conclusive evidence against the parties who are estopped from asserting otherwise.
Conflict Estoppel...
“an inconsistent position, attitude or course of conduct may not be adopted to loss or injury of another” Brand v. Farmer’s Mutt. Protective Assoc of Texas, Tex. App 95 S.W.2d 994, 997. For example, as between two or more claimants, a party that takes multiple and inconsistent legal positions is estopped to assert its positions against another consistent and certain claim, i.e. preferential treatment for certain over uncertain claims.
Issue estoppel...
estoppel when an issue arises.
IDENTIFICATION
PARADE:
An examination conducted by the magistrate during the course of investigation, for the purpose of identifying a culprit through victim or witness is identification parade.
Identification parade is a technical procedure in which a criminal suspect and other similar persons are shown to the witness in order to find the actual culprit, and to launch a prosecution against him.
The identification parades are held by the police in the course of investigation for the purpose of enabling witnesses, to identify the property which is the subject matter of the offence or to identify the culprits, who had made good their escape and were not caught on the spot . In the case of identification of the accused, he is mixed-up with several other persons and the witness is required to pick-out the person, whom he claims to have seen in the commission of the offence or crime.
Identification proceedings are facts which establish the identity of the accused persons and are themselves relevant. But evidence of identification parade is only relevant if it is conducted in-accordance with the requirements of article (22) of Qanoon-e-shahadat order,
It must be remembered that holding of identification parade is not a requirement of law but only one of the methods to test the veracity of the evidence of an eye-witness who has had an occasion to see the accused and claims to identify him.
OBJECT OF IDENTIFICATION PARADE
The object behind the identification proceeding is to find-out whether the suspect (accused) is the real offender or not. Sole purpose of identification is to ensure that an innocent person, either deliberately or by mistake is not involved. Although, Identification is not legal requirement, however, when necessary, it is the duty of court to examine that all possible steps were taken for holding fair identification parade and the witnesses at their own correctly picked-up the culprits.
An identification parade, if it has to have any value must be held by a magistrate and in the absence of police.
RELEVANCY AND EVIDENTIARY VALUE OF IDENTIFICATION:
In cases, where the offenders are not caught at the spot, the names of the culprits are not found in the first information report, and they are caught after some time, the identification parade is held and often the fate of the prosecution case depends upon the satisfactory character of identification proceedings in such cases.
Identification test of accused person cannot as a rule form sufficient basis for conviction, yet can necessarily be used in support of other evidence against them.
The fact of identification in a parade by itself not substantive evidence but is admissible under article 22, and provides strong corroboration to the identification made in court.
JUDGMENT-IN-REM:
Judgment-in-rem means adjudication pronounced upon, the status of some particular matter by a competent authority or court. A judgment-in-rem is always
admissible in any suit in which the status, which it has declared, is in question. It is, valid against the entire world and not only inter-parties.
In other words judgment-in-rem is a judgment which binds all men, and not only the parties to the suit in which it was passed, and that it belongs to positive law,
to say which judgment are to be judgment-in-rem whether for reasons of international comity or domestic expediency.
A judgment-in-rem is one, which declares, defines or otherwise determines the status of a person or of a thing, that is to say, the jural relation of the person or thing
to the world generally. Such a judgment furnishes conclusive evidence of the points it decides, not only against the parties who are actual litigants in the case, but
against all others.
JUDGMENT-IN-PERSONAM
Judgment-in-persona means, a judgment inter-parties, it is an ordinary judgment between the parties, in cases of contract , torts or crime.
In other words judgment-in-persona means a judgment between the parties in a suit, it is such judgment that impose personal liability on a defendant and that
may therefore be satisfies out of any of the defendant’s property within judicial reach.
POINTS OF DIFFERENCE BETWEEN JUDGMENT-IN-REM AND JUDGMENT-IN-PERSONAM:
(1). A judgment-in-rem is conclusive against the world as to the status of the res. A judgment-in-persona is conclusive only between parties or privies.
(2). The final judgment of probate, matrimonial, admiralty or insolvency courts conferring on or taking away from any person any legal character or declaring any
person to be entitled to any legal character or to any specific thing, are instances of judgment -in-rem, while judgment-in-persona is the resolution of a particular
dispute between two parties.
(3). A judgment-in-rem is an exception to the rule of law that, " no man should be bound by the decision of court of justice unless he or those under whom he claims
be parties to proceedings in which such judgment was given."
An examination conducted by the magistrate during the course of investigation, for the purpose of identifying a culprit through victim or witness is identification parade.
Identification parade is a technical procedure in which a criminal suspect and other similar persons are shown to the witness in order to find the actual culprit, and to launch a prosecution against him.
The identification parades are held by the police in the course of investigation for the purpose of enabling witnesses, to identify the property which is the subject matter of the offence or to identify the culprits, who had made good their escape and were not caught on the spot . In the case of identification of the accused, he is mixed-up with several other persons and the witness is required to pick-out the person, whom he claims to have seen in the commission of the offence or crime.
Identification proceedings are facts which establish the identity of the accused persons and are themselves relevant. But evidence of identification parade is only relevant if it is conducted in-accordance with the requirements of article (22) of Qanoon-e-shahadat order,
It must be remembered that holding of identification parade is not a requirement of law but only one of the methods to test the veracity of the evidence of an eye-witness who has had an occasion to see the accused and claims to identify him.
OBJECT OF IDENTIFICATION PARADE
The object behind the identification proceeding is to find-out whether the suspect (accused) is the real offender or not. Sole purpose of identification is to ensure that an innocent person, either deliberately or by mistake is not involved. Although, Identification is not legal requirement, however, when necessary, it is the duty of court to examine that all possible steps were taken for holding fair identification parade and the witnesses at their own correctly picked-up the culprits.
An identification parade, if it has to have any value must be held by a magistrate and in the absence of police.
RELEVANCY AND EVIDENTIARY VALUE OF IDENTIFICATION:
In cases, where the offenders are not caught at the spot, the names of the culprits are not found in the first information report, and they are caught after some time, the identification parade is held and often the fate of the prosecution case depends upon the satisfactory character of identification proceedings in such cases.
Identification test of accused person cannot as a rule form sufficient basis for conviction, yet can necessarily be used in support of other evidence against them.
The fact of identification in a parade by itself not substantive evidence but is admissible under article 22, and provides strong corroboration to the identification made in court.
JUDGMENT-IN-REM:
Judgment-in-rem means adjudication pronounced upon, the status of some particular matter by a competent authority or court. A judgment-in-rem is always
admissible in any suit in which the status, which it has declared, is in question. It is, valid against the entire world and not only inter-parties.
In other words judgment-in-rem is a judgment which binds all men, and not only the parties to the suit in which it was passed, and that it belongs to positive law,
to say which judgment are to be judgment-in-rem whether for reasons of international comity or domestic expediency.
A judgment-in-rem is one, which declares, defines or otherwise determines the status of a person or of a thing, that is to say, the jural relation of the person or thing
to the world generally. Such a judgment furnishes conclusive evidence of the points it decides, not only against the parties who are actual litigants in the case, but
against all others.
JUDGMENT-IN-PERSONAM
Judgment-in-persona means, a judgment inter-parties, it is an ordinary judgment between the parties, in cases of contract , torts or crime.
In other words judgment-in-persona means a judgment between the parties in a suit, it is such judgment that impose personal liability on a defendant and that
may therefore be satisfies out of any of the defendant’s property within judicial reach.
POINTS OF DIFFERENCE BETWEEN JUDGMENT-IN-REM AND JUDGMENT-IN-PERSONAM:
(1). A judgment-in-rem is conclusive against the world as to the status of the res. A judgment-in-persona is conclusive only between parties or privies.
(2). The final judgment of probate, matrimonial, admiralty or insolvency courts conferring on or taking away from any person any legal character or declaring any
person to be entitled to any legal character or to any specific thing, are instances of judgment -in-rem, while judgment-in-persona is the resolution of a particular
dispute between two parties.
(3). A judgment-in-rem is an exception to the rule of law that, " no man should be bound by the decision of court of justice unless he or those under whom he claims
be parties to proceedings in which such judgment was given."
ALIBI
Alibi is a plea of defense, (in respect of innocence of accused) by which the accused suggests to the court that he was somewhere else at the time of commission of alleged offence.
Where an alleged offence has been committed, and the prosecution accuses a person of having committed the same, in fit circumstances, it would be a complete answer to the accusation for that person to plead that he was at the time of occurrence else-where.
Alibi as an evidence is admissible under article 24 of qanoon-e-shahadat as it postulates physical impossibility of the presence of accused at scene of the offence by reason of his presence at another place. Plea of Alibi can succeed only if it was shown that accused was so far away at the relevant time that he could not be present at the place where the crime was committed.
Plea of Alibi should be taken at the earliest and must be supported by strond evidence.
The burden of proving this plea is on accused, and if that person succeeds in establishing that plea, he will be entitled to acquittal.
RES-GESTAE
Res-gestae is a Latin word; it means the events at issue, or other events contemporaneous with them.
Res-gestae has been broadly defined as matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction and without a knowledge of which the main fact might not be properly understood.
There are many incidents which though not strictly in issue, yet be regarded as forming part of it, in the sense that they closely accompany and explain that fact. These constituent or accompanying incidents are in law said to be admissible as forming part of the Res-gestae or main fact.
The evidence about the fact, which is also connected with the same transaction, cannot be said to be inadmissible or irrelevant. There is no provision of law which lays-down that evidence can be led only in respect of that matter which is the subject-matter of the charge. Facts forming part of the same transaction though not in issue but so connected with a fact-in-issue as to form part of the same transaction are relevant.
The rule as to admissibility of evidence as res-gestae is embodied and illustrated in articles (19), (20), (21), (22) and (27). In other words occasion, cause, effect, motive, preparation, conduct, explanatory or introductory facts, etc., are the various modes in which facts form parts of Res-gestae.
TAZKIYAH-TUL-SHAHOOD.
Tazkiyah means the mode of enquiry conducted by the court. In-order to ascertain whether the evidence of the witness is acceptable or not and for the purpose of declaring a witness "adil" (bearing good moral character) .
Tazkiyah-tul-shahood means to conduct an open and confidential inquiry to ascertain whether the witnesses are credible or otherwise.
In-accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah, the court in tazkiya-tul-shahood satisfy itself that the witness is truthful and abstain from major sins or not.
Tazkiyah (purgation) is a peculiarity and a product of Islamic procedure. In its scope and extent it is distinguishable from the term cross-examination.
The object of Tazkiyah-tul-shahood is that if a false witness makes a statement, it should be thoroughly investigated so that it may not harm anyone.
Tazkiyah-tul-shahood is compulsory in cases of Hadood and Qisas because doubts cause removal of Hadood/Qisas punishment.
Alibi is a plea of defense, (in respect of innocence of accused) by which the accused suggests to the court that he was somewhere else at the time of commission of alleged offence.
Where an alleged offence has been committed, and the prosecution accuses a person of having committed the same, in fit circumstances, it would be a complete answer to the accusation for that person to plead that he was at the time of occurrence else-where.
Alibi as an evidence is admissible under article 24 of qanoon-e-shahadat as it postulates physical impossibility of the presence of accused at scene of the offence by reason of his presence at another place. Plea of Alibi can succeed only if it was shown that accused was so far away at the relevant time that he could not be present at the place where the crime was committed.
Plea of Alibi should be taken at the earliest and must be supported by strond evidence.
The burden of proving this plea is on accused, and if that person succeeds in establishing that plea, he will be entitled to acquittal.
RES-GESTAE
Res-gestae is a Latin word; it means the events at issue, or other events contemporaneous with them.
Res-gestae has been broadly defined as matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction and without a knowledge of which the main fact might not be properly understood.
There are many incidents which though not strictly in issue, yet be regarded as forming part of it, in the sense that they closely accompany and explain that fact. These constituent or accompanying incidents are in law said to be admissible as forming part of the Res-gestae or main fact.
The evidence about the fact, which is also connected with the same transaction, cannot be said to be inadmissible or irrelevant. There is no provision of law which lays-down that evidence can be led only in respect of that matter which is the subject-matter of the charge. Facts forming part of the same transaction though not in issue but so connected with a fact-in-issue as to form part of the same transaction are relevant.
The rule as to admissibility of evidence as res-gestae is embodied and illustrated in articles (19), (20), (21), (22) and (27). In other words occasion, cause, effect, motive, preparation, conduct, explanatory or introductory facts, etc., are the various modes in which facts form parts of Res-gestae.
TAZKIYAH-TUL-SHAHOOD.
Tazkiyah means the mode of enquiry conducted by the court. In-order to ascertain whether the evidence of the witness is acceptable or not and for the purpose of declaring a witness "adil" (bearing good moral character) .
Tazkiyah-tul-shahood means to conduct an open and confidential inquiry to ascertain whether the witnesses are credible or otherwise.
In-accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah, the court in tazkiya-tul-shahood satisfy itself that the witness is truthful and abstain from major sins or not.
Tazkiyah (purgation) is a peculiarity and a product of Islamic procedure. In its scope and extent it is distinguishable from the term cross-examination.
The object of Tazkiyah-tul-shahood is that if a false witness makes a statement, it should be thoroughly investigated so that it may not harm anyone.
Tazkiyah-tul-shahood is compulsory in cases of Hadood and Qisas because doubts cause removal of Hadood/Qisas punishment.
HOSTILE
WITNESS:
A witness who is biased against the examining party or who is unwilling to testify.
A hostile witness may be defined as one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court.
A witness is not to be considered hostile simply because he gives unfavorable statement. A witness is hostile, when in the opinion of the court; he bears hostile intention to the party calling him. A witness should not be treated hostile simply because he does not support the prosecution case in all respects. He is hostile when his temper, attitude, demeanor etc., shows a distinctly hostile feelings towards the party calling him, or when concealing his true sentiments he does not exhibit any hostile feelings, but make statement contrary to what he has called to prove and by his manner of giving of evidence and conduct shows that he is not desirous of giving evidence fairly and telling the truth to the court.
The prosecution cannot cross-examine its own witness, but the court has got wide discretion to allow the prosecution to cross-examine prosecution witnesses after
declaring them hostile.
PRINCIPLES APPLLCABLE TO THE ASSESSMENT OF EVIDENCE OF HOSTILE WITNESS:-
-
No har and fast rule can be laid down as to the assessment of evidence of hostile witness. But where the court finds that certain facts disclosed by a hostile witness,
corroborating the story as set-up by other witnesses, can safely accept as true and in support of the version of the other witnesses.
It would be wrong to suggest that the evidence of hostile witness has to be discreditted wholly. The testimony of the hostile witness cannot be left-out of consideration and the evidence has to be considered like the evidence of any other witness, but with a caution for the simple reasons that the witness has spoken in different tones. When a person speaks in different voices, it is for the court to decide, in what voice he speaks the truth.
A witness who is biased against the examining party or who is unwilling to testify.
A hostile witness may be defined as one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court.
A witness is not to be considered hostile simply because he gives unfavorable statement. A witness is hostile, when in the opinion of the court; he bears hostile intention to the party calling him. A witness should not be treated hostile simply because he does not support the prosecution case in all respects. He is hostile when his temper, attitude, demeanor etc., shows a distinctly hostile feelings towards the party calling him, or when concealing his true sentiments he does not exhibit any hostile feelings, but make statement contrary to what he has called to prove and by his manner of giving of evidence and conduct shows that he is not desirous of giving evidence fairly and telling the truth to the court.
The prosecution cannot cross-examine its own witness, but the court has got wide discretion to allow the prosecution to cross-examine prosecution witnesses after
declaring them hostile.
PRINCIPLES APPLLCABLE TO THE ASSESSMENT OF EVIDENCE OF HOSTILE WITNESS:-
-
No har and fast rule can be laid down as to the assessment of evidence of hostile witness. But where the court finds that certain facts disclosed by a hostile witness,
corroborating the story as set-up by other witnesses, can safely accept as true and in support of the version of the other witnesses.
It would be wrong to suggest that the evidence of hostile witness has to be discreditted wholly. The testimony of the hostile witness cannot be left-out of consideration and the evidence has to be considered like the evidence of any other witness, but with a caution for the simple reasons that the witness has spoken in different tones. When a person speaks in different voices, it is for the court to decide, in what voice he speaks the truth.
Comments
Post a Comment