ASSIGNMENT

SUBMITTED BY: TAHMOOR AHMED.

SUBMITTED TO: SIR ADEEL ABID.
ENROLMENT: BALLB/3-20/M01043.
SUBJECT: LAW OF EVIDENCE-II.
BATCH #: 09
FACULTY OF: LAW
TOPIC: Exclusion of Oral Evidence by
Documentary Evidence:

INTRODUCTION
The term evidence has come from the Latin word “evident” which means “to show clearly”
or to prove. Evidence contains everything that is used to reveal the truth or facts. In law the
person on whom the burden of proof lies has to produce the evidence before the court of
law. It is also important that the evidence which is produced before the court should be
true.
In the Qanun-e-Shahadat 1984, which is the law of evidence in Pakistan, an introduction to
evidence typically entails elucidating the foundational principles governing the
admissibility, relevance, and weight of evidence in legal proceedings. Here's a concise
breakdown:
It defines what constitutes evidence, encompassing any matter of fact presented to a court
for its consideration.

TYPES OF EVIDENCE IN QANOON-I-SHAHADAT: -

Oral Evidence
The evidence which is confined to the words spoken by mouth is the oral evidence. If oral
evidence is worthy of credit, it is sufficient to prove a fact or a title without any
documentary evidence. The provisions related to oral evidence are given under Chapter IV
of Qanun-e-Shahadat. Oral evidence of a witness can be considered doubtful if it is in
contradiction with theprevious statement.

Documentary Evidence
The provisions related to the documentary evidence are provided under Chapter-V of the
Qanun-e-Shahadat. Article 2 of the Act defines the term “document”. Any matter which is
expressed or described on any substance by means of letters, figures or remarks or by more
than one means and which can be used for recording the matter is considered as a
“document”.
Generally, the most common document which we have to deal with is described by letters.
Thedocuments are written in any language of communication such as Hindi, English, Urdu
etc.
• The documents produced before the court as evidence are the documentary
evidence andthere must primary or secondary evidence to prove the contents of the
documents. Primary evidence has been defined under article 73 of the Qanun-e-
 Shahadat and it means the original document when itself produced before the court
for the inspection.

• The secondary evidence has been defined under article 74 of the Act. The
secondary evidence is the certified copy of the evidence or copy of original
documents. Secondary evidence also includes the oral accounts given by a person about
the contents of thedocument who has himself seen it.

Direct evidence (art 70)

It refers to the evidence directly about the real point in the issue. It is the declaration of the
observer as to key certainty to be demonstrated. Example- The proof of an individual who
says that he saw the commission of the demonstration that comprises of affirmed
wrongdoing. The original document is also included in the indirect evidence. Direct
evidence is generally clear andconvincing. It is simply the hypothetical verification when
the truth of the matter is demonstratedby direct declaration or facts. Direct evidence also
means that the person has heard, seen, perceived, form opinion and after that revealed the
facts.

Circumstantial evidence (art 19 to 29)

“Proof does not mean hard mathematical formula since it is impossible”. It was told by
Justice Fletcher Moulton in regard to circumstantial event. He also said that these proofs are
strong butsometimes it leaves a gap through which the accused escapes.

Expert evidence (art 59 to 69)

The law of evidence is drafted to make sure that, the court only considers the proof that
allows them to reach a valid conclusion. When an issue arises such as a medical issue, then
the court needs expert advice to settle it. The logical inquiries included are assumed not to
be within the knowledge of the court. The cases in which scientists and specialists are
involved, there the roleof experts cannot be argued.

Hearsay evidence (art 46)

This evidence is also called as indirect, derivative or second- hand evidence. In this
type of evidence, the witness tells the court about what he had heard from somebody
but has not seenanything. Thus, it can be said that the witness does not talk about the
circumstances with his knowledge but with the knowledge of another person and what
the other person told him. Thecourt does not take such type of proof seriously.
IMPORTANCE OF DOCUMENT EVIDENCE THROUGH CASE LAWS:
Purpose and intent of document in question, was doubtful; such document from its contents was
neitheragreement to sell nor sale-deed-Document in question, did not show whether it was
registered as an agreement /acknowledgement or sale-deed-Sub-Registrar had simply recorded
that deed was being registered on the orders of Registrar-Document in question, thus, did not
convey any meaning nor did it confer title of ownership upon petitioner. P L D 1994 Peshawar 58

Document tendered in evidence and exhibited at the trial without any objection-Effect-Where no
objection had been raised at the time of tendering and exhibiting of evidence before the trial Court
oreven before the lower appellate forum, no objection could be raised in second appeal. 1990 M L D
219

Purpose and intent of document in question, was doubtful; such document from its contents was
neitheragreement to sell nor sale-deed-Document in question, did not show whether it was
registered as an agreement /acknowledgement or sale-deed-Sub-Registrar had simply recorded
that deed was being registered on the orders of Registrar-Document in question, thus, did not
convey any meaning nor did it confer title of ownership upon petitioner. P L D 1994 Peshawar 58

Document tendered in evidence and exhibited at the trial without any objection-Effect-Where no
objection had been raised at the time of tendering and exhibiting of evidence before the trial Court
oreven before the lower appellate forum, no objection could be raised in second appeal. 1990 M L D
219

Document which was not placed before Trial Court and was not considered by that Court or First
Appellate Court could not be considered by High Court at provisional stage. 1998 C L C 382

Exclusion of Oral and Documentary Evidence

One of the essential standards of the law of proof is that in all cases the best proof ought to
be given. Where the demonstration is exemplified in a record, the record is the best proof
of the reality. The maxim of law is “whatever is recorded as a hard copy must be
demonstrated in the form of hard copy only “.
It is cardinal rule of law of evidence that the best available evidence should be brought
before thecourt. Art 21, 75 and 102 of Q.S.O 1984 are based on this principle.

General Rule:
1. Art. 102 of QSO
1. When the terms of (i) contract (ii) grant or (iii) any disposition of property have been
reducedto writing to the form of document; or.
2. Where any matter is required by law in the form of document. Then (a) the document
itself, or
(b) secondary evidence of its contents must be put in evidence.

Applicability of rule:
The moment an oral contract is reduced to writing, it is not open to any of the parties
thereafter to seek to prove the terms of the contract by referring to any original oral
agreement. Art 102 would stand in his way and he would be precluded from proving the
terms of transaction otherwise than by the deed itself.
But there are many documents and matters of the court which are considered mandatory by
the law to be in writing and registered e.g., judgement and decrees, the deposition of
witnesses,when an accused person is examined etc.
Orally, many contracts, grants and other depositions can be affected but reducing the terms
of the contract on which the party agrees in a document is considered to be the best
evidence for the terms of that contract. When reduced to documents, it acts as the best
evidence. Even if the document is lost or in adversary possession secondary evidence as
described under article 65 canbe produced before the court.

Rule of article 102

Article 102 of the Qanun-e-Shahadat, lays down the provision for the situation when the
terms of the contract, grant or depositions of properties have been reduced in the document
even though it is required under law to be reduced into the document. In this condition, if
the proof is required, the document itself is required to be produced or if the secondary
evidence is admissible then thesecondary evidence can be used.

RELEVANT CASE LAW

In Bhaskar Waman Joshi V/s. Narayan Rambilas, [(1960) 2 SCR 117],

Hon'ble Apex Court held as under:

"The question in each case is one of determination of their al character of the transaction to be
ascertainend from the provisions of the deed, viewed in the light of the surrounding circumstances.
If the words
are plain and unambiguous, they must in the light of
the evidence of surrounding circumstances, be given their true legal effect. If there is ambiguity in
the language employed, the intention may be
ascertained from the contents of the deed with such extrinsic evidence as may be, by law, be
permitted to be adduced to show in what manner the language of the deed was related to
existing facts".

Exceptions to Article 102

 • Exception 1: Appointment of a public officer by the way of writing
As per the general rule, to prove the content of a writing, the writing itself is required to be
produced before the court and in case of its absence, secondary evidence may be given. But
there is an exception to this rule. When a public officer is appointed and the appointment is
required tobe made in writing and if it is shown before the court that some person has acted
as the officer by whom the person has been appointed, then the writing by which he has
been appointed needs notto be proved.

Illustration
A question arises whether A is a judge of the High Court, then the warrant of appointment
is not required to be proved. The fact that he is working as a judge of the High Court will
be proved.
The fact that a person is working in the due capacity of his office is also evidence of that
person’sappointment in the office.

• Exception 2: When probate has been obtained on the basis of a will

Another exception of the general rule of the writing to be produced itself is that when
on the basis of will probate has been obtained and if later, the question arises on the
existence of that will, the original will be not required to be produced before the court.
This exception requires to prove the contents of the will by which the probate is granted.
The term “probate” stands for the copy of a certificate with the seal of the court granting
administration to the estate of the testator.
The probate copy of the will is secondary evidence of the contents of the original will in a
strict sense but it is ranked as primary evidence

2. Evidence of oral agreement excluded

Article 103 of the Qanun-e-Shahadat lays down the provision that when as laid down under
article 102 the documents which are required to be in writing such as the terms of the
contract, grant or other deposition of property or any other matter required by the law in
writing then the court cannot allow being led by oral evidence to the party contract or legal
representative for the purpose of contradicting, varying, addition or subtraction from the
contract.
• Article 103 comes into operation when the documents have been submitted under
article 103 for the purpose of contradicting, varying, addition or any modification
from its terms.
• Article 103 of the Act clarifies itself that only such oral arguments are excluded
which contradicts the terms of contract, deposition or any other matter required to
be in writing. If such a document is not a contract, grant or deposition of property,
then the oral evidence can be included to vary its content.
• Article 103 is applicable only to the parties to the instrument and not to the person
 who isa stranger to the instrument.

EXCEPTIONS;
• The facts which invalidate the document
If a fact will invalidate the contact, then no man is debarred from proving that fact.
According to the laws of contract, any contract which is created by fraud or undue
influence, it is not enforceable and considered invalid. So, such facts are easy to prove in
the circumstances when the contract has been reduced into written form.
• Separate oral arguments
The term separates oral arguments in this context refer to the oral agreements made before
entering into the documents. The contemporaneous or prior oral agreements are referred to
underProviso (2) of article 103.
When there is a prior oral agreement on a matter about which the document is silent, then it
can be proved only when such terms of oral agreements are not in contradiction with the
terms of thecontract.
So, as held in the case of Bal Ram v. Ramesh Chandra, the requirements of this proviso are:
I. On the matter on which the document is silent, a separate oral agreement should be
related to it.
II. Such oral agreement should not be inconsistent with the terms of the document.

• Separate Oral Argument as a condition precedent

The situation when an oral agreement is to the effect that it will not be effective or will not
be enforced unless a condition precedent is fulfilled or unless a certain event takes place,
the oral agreements are admissible in this case to show that as such condition has not been
performed, thecontract was not enforceable.

• Distinct oral agreement made subsequently to renew or modify the contract

To prove any subsequent oral agreement leading to alteration of terms of all the written
contracts except to the contracts which are required to be in writing by law evidence can be
given.
When a transaction is reduced to writing which is not required by law to be in writing but
the agreement is made for the convenience of parties then an oral agreement made
subsequently to modify it is admissible.

• Any usage or customs by which incidents not mentioned in any contract are
usuallyannexed to contract
evidence of usage and customs are always admissible. When the object is to make
 intelligible before the court about the meaning in which the parties have used as a evidence
may be given to prove any local custom of the general application, so that it may be
applied to the subject matter of the contract and bind the parties to the written contract
unless such usage or custom is inconsistent with the writing.

• Extrinsic evidence of surrounding circumstances

Whenever a document is required to be proved before the court, its object is to endeavor
and ascertain its real meaning and the extrinsic evidence are necessary for this purpose.
The object of admissibility of the evidence of the surrounding circumstances is to ascertain
the real evidence of the parties but from the language of the document, the intentions of
parties must be gathered as explained by extrinsic evidence.

Inter-relation between article 102 and 103

Article 102 and 103 are supplementary to each other. Both articles support and complete
each other. When the terms of the contract, deposition of a property or any matter required
to be in writing under the law if proved by the document then the oral evidence is not
required to contradict it.
After a document has been produced to prove its terms under article 102, then the
provisions of article 103 play for excluding evidence of any oral agreement or statement
for the purpose of contradicting, varying, addition or subtraction from its terms.
Even though the two articles are supplementary to each other, both articles differ about
some of the opinions in particular. Article 102 deals with the documents whether or not
they are having the purpose to dispose of the rights or not but article 103 is applicable to
the documents whichare dispositive in nature.
Article 102 applies to the document which is both bilateral and unilateral documents but
article 103 applies only to the document which is of bilateral nature.

RELATED ARTICLE

Evidence as to matters in writing.

According to Art. 139 of Q.S.O 1984 a party can compel other party to produce a
document.When a witness is about to given evidence as to:
1. Contract
2. Grant
3. Other dispositions of property which is contained in a
document. When he is about to make any statement as to the contents
of any document.
 3. Exclusion of evidence to explain or amend an ambiguous document.
Article 104 of Q.S.O says that if the language used in the document is defective or
ambiguous, evidence cannot be given of facts which would show its meaning.

Illustration
An agreement is made between A and B that A will sell his crops for Rs. 1000 or 2000.
The evidence cannot be given that which price was to be given.
In the case of Keshav Lal v. Lal Bhai T. Mills Ltd., it was held by the Supreme Court that
it would not be open for the parties or the court to remove the ambiguity or vagueness by
relying upon the extrinsic evidence.

4. Exclusion of evidence against the application of document to existing facts.

According to article 104 of Q.S.O, when the language in the document is simple and plain
itself and it applies accurately to the existing facts, the evidence to show that it was not
meant to applyto such facts may not be given.
When there is neither a patent ambiguity nor a latent ambiguity then the evidence
cannot begiven to contradict this.
In the case of General Court Marshal v. Col. Anil Tej Singh Dhaliwal it was held by the
Supreme Court that article 94 applies only when the execution of the document is
admitted before thecourt and there are no vitiating circumstances against it.

5. Evidence as to the document unmeaning in reference to existing facts.

article 105 Qanun-e-Shahadat deals with latent ambiguity and oral evidence can be given
for removing latent ambiguity. When the language which has been used in the document is
simple and plain but it is not in the meaning to existing facts due to the mistakes in the
descriptive evidence and such mistake can be shown that it was used in a peculiar sense.

Illustration
A sold his house to B stating in the deed as “my house in Khairpur”.
But A has no house in Khairpur but he has a house in Kanpur in which B is living since the
deed was executed. Then the evidence can be used to prove the fact the deed was related to
the house in Kanpur
.
6. Evidence as to the application of the language which can apply to one of
severalpersons.
According to article 106 of Qanun-e-Shahadat, where at the point when the facts are with
the end goal that the language utilized may have been intended to apply to anyone, and
couldn’t have been intended to apply to multiple, of a few people or things, proof might be
given of certainties which shows the people or things, it was planned to apply to.

Illustration
A agrees to sell his white cow to B for Rs. 2000 and in the deed, he has mentioned “my
white cow”. A has two white cows. Evidence can be given to prove that which white cow
he meant in that deed.

7. Evidence as to the application of language to one of two sets of facts, to

neither ofwhich the whole correctly applies.
According to article 107, When the language used is applied partially to other existing facts
and partially to other existing facts but the whole does not apply to either of the facts
mentioned. Evidence can be given to show that which of the two it was meant to apply.

Illustration
X sells his land to Y stating “My land at A in the occupation of B”. X had land at A but it is
not in occupation of B and X has land which is in the occupation of B but it is not at A.
Then X can present evidence before the court that which land, he actually wants to sell.

8. Evidence as to the meaning of illegible characters, etc.

According to article 108 of Qanun-e-Shahadat, Proof might be given to demonstrate the
significance of obscured or not ordinarily clear characters, of remote, out of date,
specialized, and provincial expressions, of abbreviations and of words utilized in an
exceptional sense.
In the case of Canadian-General Electric W. v. Fatda Radio Ltd held that for the
explanation of artistic words and symbols used in the record oral evidence is admissible
and can be used for thatpurpose.

9. Who may give evidence of an agreement varying term of the document?

Under article 109 of Qanun-e-Shahadat, those persons also can give evidence who are not
parties to a document or representative-in-interest regarding any fact which shows a
contemporaneous agreement varying the terms of the document.
As article 102 of the Act excludes the party to the contract from producing the document
but it does not exclude those who are the parties to contract. So, under this article i.e.,
article 109 the same provision is being repeated.
In the case of Bai Hira Devi v. Official Assignee of Bombay article 92 deals only with the
matter related to contracts, grants and other depositions of the property but article 99
deals with all types of documents, whether it is a contract or not. Article 99 speaks
only about varying theterms of a document.

Conclusion
Chapter VI of the Qanun-e-Shahadat deals with the provisions related to the exclusion of
oral evidence by documentary evidence. There are certain circumstances when the oral
evidence cannot be admitted before the court for the support of documentary and there are
also instances when the oral evidence is admissible. All the provisions have to be dealt
with according to this chapter. The provisions related to the will under the Succession Act
is excluded from these provisions.

The End