EVIDENCE IN CIVIL CASESEVIDENCE IN CIVIL CASES

Mian Ali HaiderMian Ali HaiderL.L.B., L.L.M (L.L.B., L.L.M (Cum LaudeCum Laude) U.K.) U.K.

ORDER IN WHICH EVIDENCE ORDER IN WHICH EVIDENCE WILL BE RECORDEDWILL BE RECORDED

In civil cases by Order XVIII, rules 1 and 2 of In civil cases by Order XVIII, rules 1 and 2 of CPCCPC

The plaintiff has the right to begin The plaintiff has the right to begin – unless the defendant admits the facts alleged by the unless the defendant admits the facts alleged by the

plaintiff plaintiff – and contends that either in point of law or on some and contends that either in point of law or on some

additional facts alleged by the defendant the plaintiff additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he is not entitled to any part of the relief which he seeks, seeks,

– in which case the defendant has the right to beginin which case the defendant has the right to begin

ORDER IN WHICH EVIDENCE ORDER IN WHICH EVIDENCE WILL BE RECORDEDWILL BE RECORDED

When not so regulated, Then;When not so regulated, Then;– By the discretion of courtBy the discretion of court

Art. 130Art. 130– The order in which witnesses are produced and The order in which witnesses are produced and

examined shall be regulated by the law and examined shall be regulated by the law and practice, for the time being relating to civil and practice, for the time being relating to civil and criminal procedure respectively, criminal procedure respectively,

– and, in the absence of any such law, by the and, in the absence of any such law, by the discretion of the Courtdiscretion of the Court

WHEN THERE ARE SEVERAL WHEN THERE ARE SEVERAL ISSUESISSUES

Order XVIII, Rule 3 gives the optionOrder XVIII, Rule 3 gives the option– Where there are several issues, the burden of proving some of Where there are several issues, the burden of proving some of

which lies on the other party which lies on the other party

– the party beginning may, at his option, either produce his the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence on those issues or reserve it by way of answer to the evidence produced by the other party;evidence produced by the other party;

– and in the latter case, the party beginning may produce and in the latter case, the party beginning may produce evidence on those issues after the other party has produced all evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; the evidence so produced by the party beginning;

– but the party beginning will then be entitled to reply generally but the party beginning will then be entitled to reply generally on the whole case on the whole case

DOCTRINE OF REBUTTAL DOCTRINE OF REBUTTAL EVIDENCEEVIDENCE

Party after leading her affirmative evidence had Party after leading her affirmative evidence had reserved right to produce evidence in rebuttal of reserved right to produce evidence in rebuttal of other party’s evidence.other party’s evidence.

Party produced evidence to prove specific issue, Party produced evidence to prove specific issue, the other party has thus, right to adduce evidence the other party has thus, right to adduce evidence in rebuttal.in rebuttal.

Witness who had earlier appeared to depose in Witness who had earlier appeared to depose in affirmation of averments made by one party could affirmation of averments made by one party could appear again in rebuttal of the same evidence on appear again in rebuttal of the same evidence on issue of which burden of proof had been placed issue of which burden of proof had been placed on them. on them.

ORDER OF EXAMMINATIONORDER OF EXAMMINATION

Examination in chiefExamination in chief Cross ExaminationCross Examination Re-examinationRe-examination Art 133Art 133 Leading Questions Leading Questions Art 136Art 136 what questions may be asked during Cross what questions may be asked during Cross

Examination?Examination? Art 141- 149Art 141- 149 Hostile Witness Hostile Witness Art 150Art 150

WHAT QUESTIONS MAY BE WHAT QUESTIONS MAY BE ASKEDASKED

(141)Questions lawful in cross-examination: (141)Questions lawful in cross-examination: When a witness is cross-examined, he may, in When a witness is cross-examined, he may, in addition to the questions hereinbefore referred addition to the questions hereinbefore referred to, be asked any questions which tend—to, be asked any questions which tend—– (1) to test his veracity,(1) to test his veracity,

– (2) to discover who he is and what is his position in life or(2) to discover who he is and what is his position in life or

– (3) to shake his credit, by injuring his character, although the (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeitureto expose him to a penalty or forfeiture

IMPEACHING CREDIT OF IMPEACHING CREDIT OF WITNESSWITNESS

(151) The credit of a witness may be impeached in the following (151) The credit of a witness may be impeached in the following ways by the adverse party or with the consent of the Court, by the ways by the adverse party or with the consent of the Court, by the party who calls himparty who calls him

– By the By the evidence of personsevidence of persons who testify that they, from their who testify that they, from their knowledge of the witness, knowledge of the witness, believe him to be un-worthybelieve him to be un-worthy of credit of credit

– By By proof that the witness has been bribedproof that the witness has been bribed, or has accepted the , or has accepted the offer of a bribeoffer of a bribe, or has received any other , or has received any other corrupt inducementcorrupt inducement to give his evidenceto give his evidence

– By proof of former statements inconsistent with any part of his By proof of former statements inconsistent with any part of his evidence which is liable to be contradictedevidence which is liable to be contradicted (Criminal)(Criminal)

– When a man is prosecuted for rape or an attempt to ravish, it When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of may be shown that the prosecutrix was of generally immoral generally immoral charactercharacter

WHEN QUESTION SHALL BE WHEN QUESTION SHALL BE ASKED & COMPELLEDASKED & COMPELLED

(143) If any such question relates to a matter not relevant (143) If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the to the suit or proceeding, except in so far as it affects the credit of the witnesscredit of the witness by injuring his character, by injuring his character,

the Court shall decide the Court shall decide whether or not the witness shall be whether or not the witness shall be compelledcompelled to answer it, and may if it thinks fit, to answer it, and may if it thinks fit, warn the warn the witnesswitness that he is not obliged to answer it. that he is not obliged to answer it.

The Court shall have regard to;The Court shall have regard to;1.1. Such Questions are ProperSuch Questions are Proper

2.2. Such Questions are ImproperSuch Questions are Improper

3.3. Inference from the answersInference from the answers

CLOG ON QUESTIONSCLOG ON QUESTIONS

146. Indecent and scandalous question: 146. Indecent and scandalous question: The Court may forbid any question or inquiries The Court may forbid any question or inquiries

which it regards as indecent or scandalous,which it regards as indecent or scandalous, Although such questions or inquiries may have Although such questions or inquiries may have

some bearing on the questions before the Court some bearing on the questions before the Court unless they relate to facts-in-issue, unless they relate to facts-in-issue,

or to matters necessary to be known in order to or to matters necessary to be known in order to determine whether or not the facts-in issue determine whether or not the facts-in issue existed.existed.

EXCEPTION TO THE CLOGEXCEPTION TO THE CLOG

(144) Question not to be asked without (144) Question not to be asked without reasonable grounds: reasonable grounds:

No such question as is referred to in Article No such question as is referred to in Article 143 ought to be asked, 143 ought to be asked, – unless the person asking it has unless the person asking it has reasonable groundsreasonable grounds

for thinking that the imputation, which it conveys, for thinking that the imputation, which it conveys, is well founded.is well founded.

– So “LEAD” & “LOAD” can be done, but with So “LEAD” & “LOAD” can be done, but with mastery & practisemastery & practise

PREVAILING PRACTISEPREVAILING PRACTISE

QSO gives ample power to the court regulate QSO gives ample power to the court regulate & control in special circumstances the manner & control in special circumstances the manner and form of questionsand form of questions

Where an attempt was sought to be made to Where an attempt was sought to be made to ask something which was not strictly relevant ask something which was not strictly relevant to facts in issue or was couched in a needlessly to facts in issue or was couched in a needlessly offensive & indecent form, the court was offensive & indecent form, the court was perfectly within its right to disallow the perfectly within its right to disallow the questions and to give a warning to the counsel questions and to give a warning to the counsel putting it. putting it. Art 145Art 145

REFRESHING MEMORYREFRESHING MEMORY The general rule is that a witness is not allowed to read from a The general rule is that a witness is not allowed to read from a

document prepared for litigation as this will destroy document prepared for litigation as this will destroy spontaneity spontaneity – but a witness is allowed to refresh his memory from a document or but a witness is allowed to refresh his memory from a document or

photofit made contemporaneously with the facts. photofit made contemporaneously with the facts.

– The rationale for this is that human memory is probably not as good as The rationale for this is that human memory is probably not as good as we believe and that notes made by witnesses are likely to be fuller and we believe and that notes made by witnesses are likely to be fuller and more accurate and, if referred to, may help to stimulate the memory to more accurate and, if referred to, may help to stimulate the memory to recall the factsrecall the facts

Three mechanism are available under QSO to deal with the Three mechanism are available under QSO to deal with the refreshing doctrinerefreshing doctrine

Manner u/a 155Manner u/a 155 Manner u/a 156Manner u/a 156 Manner u/a 157Manner u/a 157

REFRESHING U/A 155REFRESHING U/A 155 A witness may, while under examination, fresh his memory by A witness may, while under examination, fresh his memory by

referring to any writing made by himself at the time of the referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction afterwards that the Court considers it likely that the transaction was at that time fresh in his memorywas at that time fresh in his memory

This is to be regulated subject to bonafide lapse of memory.This is to be regulated subject to bonafide lapse of memory. ModesModes

– By any writing made by witness himselfBy any writing made by witness himself

– By any writing made by any other personBy any writing made by any other person

– By referring to the copy of any documentBy referring to the copy of any document Court satisfactionCourt satisfaction

– By reference to professional treaties in case of expertBy reference to professional treaties in case of expert InstancesInstances

– Large number of transactionsLarge number of transactions

– Technical terminologiesTechnical terminologies

– List of discovery of documentsList of discovery of documents

MANNER U/A 156MANNER U/A 156 A witness may also testify to facts mentioned A witness may also testify to facts mentioned

in any such document as is mentioned in in any such document as is mentioned in Article 155, although he has Article 155, although he has no specific no specific recollection of the factsrecollection of the facts themselves, if he is themselves, if he is sure that the facts sure that the facts were correctly recorded in were correctly recorded in the documentthe document

DifferenceDifference– Witness’s memory which is evidence of a Witness’s memory which is evidence of a

document itself not having been tendereddocument itself not having been tendered– u/a 156 it is the document which is evidence of u/a 156 it is the document which is evidence of

facts contained in itfacts contained in it

MANNER U/A 157MANNER U/A 157

RIGHT OF ADVERSE PARTYRIGHT OF ADVERSE PARTY– To ask for the production of the documentTo ask for the production of the document– To inspect the documentTo inspect the document

Police diariesPolice diaries Secondary evidenceSecondary evidence

– To cross examine the witnessTo cross examine the witness– Basically Art. 157 is clog / check the misuse / Basically Art. 157 is clog / check the misuse /

abuse of preceding articlesabuse of preceding articles

DOCTRINE OF REFRESHING DOCTRINE OF REFRESHING AT COMMON LAWAT COMMON LAW

The doctrine of refreshing works in a little improvised way at The doctrine of refreshing works in a little improvised way at common law based upon certain pre-requisitescommon law based upon certain pre-requisites

CONTEMPORANEITYCONTEMPORANEITY– A witness is not allowed to refresh his memory from a deposition made A witness is not allowed to refresh his memory from a deposition made

by him three months after the event or from statements made a month by him three months after the event or from statements made a month after the relevant event. after the relevant event.

DOCUMENTS READ OVER & ACCEPTED AS ACCURATEDOCUMENTS READ OVER & ACCEPTED AS ACCURATE

– It is not necessary for the document to have been made by the witness but It is not necessary for the document to have been made by the witness but it must be read over and accepted as accurate by the witnessit must be read over and accepted as accurate by the witness

PRODUCTION & HANDING OVERPRODUCTION & HANDING OVER– It must be handed over to the opposite party or his advocate to enable It must be handed over to the opposite party or his advocate to enable

him to inspect it and to cross-examinehim to inspect it and to cross-examine

PRODUCTION OF THE ORIGINALPRODUCTION OF THE ORIGINAL LEGAL STATUS OF THE DOCUMENTLEGAL STATUS OF THE DOCUMENT

OUT OF COURT REFRESHINGOUT OF COURT REFRESHING R v. Richardson is the precedent to understand the conceptR v. Richardson is the precedent to understand the concept

1.1. That a witness may read over in private a statement made That a witness may read over in private a statement made to the police at an earlier date in order to refresh his to the police at an earlier date in order to refresh his memorymemory

2.2. That this may be done even in circumstances where he That this may be done even in circumstances where he would not have been allowed to do so by reference to the would not have been allowed to do so by reference to the statement in open courtstatement in open court

In that case, the Crown witnesses were allowed to read over In that case, the Crown witnesses were allowed to read over their statements so as to refresh their memories before the trial their statements so as to refresh their memories before the trial took place. took place.

This was not revealed in the course of testimony of these This was not revealed in the course of testimony of these witnesses but emerged from that of a police officer who was witnesses but emerged from that of a police officer who was called to give evidence subsequentlycalled to give evidence subsequently

DISCREDITING ONES OWN DISCREDITING ONES OWN WITNESSWITNESS

At common law one can impeach one’s own witness if he At common law one can impeach one’s own witness if he is an unfavorable or hostile witness (Art 150)is an unfavorable or hostile witness (Art 150)

UNFAVOURABLE WITNESSUNFAVOURABLE WITNESS– An unfavorable witness is one who merely fails to An unfavorable witness is one who merely fails to

prove what the party hopes forprove what the party hopes for– At common law an unfavorable witness cannot be At common law an unfavorable witness cannot be

cross examined but the party may call another witnesscross examined but the party may call another witness– In Ewer v. Ambrose the defendant called a witness to In Ewer v. Ambrose the defendant called a witness to

prove the partnership but proved contrary, it was held prove the partnership but proved contrary, it was held that defendant could rely on testimony of another that defendant could rely on testimony of another witness.witness.

DISCREDITING ONES OWN DISCREDITING ONES OWN WITNESSWITNESS

HOSTILE WITNESSHOSTILE WITNESS The judge may allow the examination-in-chief of a hostile witness The judge may allow the examination-in-chief of a hostile witness

to be conducted in the manner of cross-examination. He may be to be conducted in the manner of cross-examination. He may be asked leading questions. His character may be attacked and asked leading questions. His character may be attacked and witnesses may be called to show that he is a liarwitnesses may be called to show that he is a liar

The procedure recommended by the Court of Appeal in R v Maw The procedure recommended by the Court of Appeal in R v Maw – Is that if a witness fails to give evidence expected of him, Is that if a witness fails to give evidence expected of him,

– It is undesirable to proceed immediately to treating the witness as hostile It is undesirable to proceed immediately to treating the witness as hostile

– Unless he is displaying excessive degree of hostility or animus. Unless he is displaying excessive degree of hostility or animus.

– The first thing that should be done is to invite the witness to refresh his The first thing that should be done is to invite the witness to refresh his memory from relevant notes. memory from relevant notes.

– If he refuses, then he should be treated as hostile. If he refuses, then he should be treated as hostile.

– But there was some doubt whether his previous consistent statements could But there was some doubt whether his previous consistent statements could be provedbe proved

READING MATERIALREADING MATERIAL

Bhojraj v Sita Ram – AIR 1936 PC 60Bhojraj v Sita Ram – AIR 1936 PC 60 Zafar Iqbal – 1988 PLD 2022 Zafar Iqbal – 1988 PLD 2022 Ch. Muhammad Abdus Salam – 1996 SCMR 351 Ch. Muhammad Abdus Salam – 1996 SCMR 351 M.Ibrahim – PLD 1955 FC 14,16 M.Ibrahim – PLD 1955 FC 14,16 IR v Turgel (2000) 2 All ER 872 (this was a criminal IR v Turgel (2000) 2 All ER 872 (this was a criminal

case, but the ratio applies also to civil cases case, but the ratio applies also to civil cases Ali Nawaz Gardezi – PLD 1963 SC 51, 86 – this too Ali Nawaz Gardezi – PLD 1963 SC 51, 86 – this too

is a criminal case, but applies to civil cases is a criminal case, but applies to civil cases Muhammad Azam v Muhammad Iqbal – PLD 1984 Muhammad Azam v Muhammad Iqbal – PLD 1984

SC 95, 123 SC 95, 123