EVIDENCE IN CIVIL CASES

1. EVIDENCE IN CIVIL CASES Mian Ali HaiderL.L.B., L.L.M (Cum Laude) U.K.

2. ORDER IN WHICH EVIDENCE WILL BE RECORDED • In civil cases by Order XVIII, rules 1 and 2 of CPC • The plaintiff has the right to begin • unless the defendant admits the facts alleged by the plaintiff • and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, • in which case the defendant has the right to begin

3. ORDER IN WHICH EVIDENCE WILL BE RECORDED • When not so regulated, Then; • By the discretion of court • Art. 130 • The order in which witnesses are produced and examined shall be regulated by the law and practice, for the time being relating to civil and criminal procedure respectively, • and, in the absence of any such law, by the discretion of the Court

4. WHEN THERE ARE SEVERAL ISSUES • Order XVIII, Rule 3 gives the option • Where there are several issues, the burden of proving some of which lies on the other party • the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; • and in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; • but the party beginning will then be entitled to reply generally on the whole case

5. DOCTRINE OF REBUTTAL EVIDENCE • Party after leading her affirmative evidence had reserved right to produce evidence in rebuttal of other party’s evidence. • Party produced evidence to prove specific issue, the other party has thus, right to adduce evidence in rebuttal. • Witness who had earlier appeared to depose in affirmation of averments made by one party could appear again in rebuttal of the same evidence on issue of which burden of proof had been placed on them.

6. ORDER OF EXAMMINATION • Examination in chief • Cross Examination • Re-examination Art 133 • Leading Questions Art 136 • what questions may be asked during Cross Examination? Art 141- 149 • Hostile Witness Art 150

7. WHAT QUESTIONS MAY BE ASKED • (141)Questions lawful in cross-examination: When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend— • (1) to test his veracity, • (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 answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture

8. IMPEACHING CREDIT OF WITNESS • (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 party who calls him • By the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un-worthy of credit • By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence • By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted (Criminal) • When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character

9. WHEN QUESTION SHALL BE ASKED & COMPELLED • (143) If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, • the Court shall decide whether or not the witness shall be compelled to answer it, and may if it thinks fit, warn the witness that he is not obliged to answer it. • The Court shall have regard to; • Such Questions are Proper • Such Questions are Improper • Inference from the answers

10. CLOG ON QUESTIONS • 146. Indecent and scandalous question: • The Court may forbid any question or inquiries which it regards as indecent or scandalous, • Although such questions or inquiries may have some bearing on the questions before the Court unless they relate to facts-in-issue, • or to matters necessary to be known in order to determine whether or not the facts-in issue existed.

11. EXCEPTION TO THE CLOG • (144) Question not to be asked without reasonable grounds: • No such question as is referred to in Article 143 ought to be asked, • unless the person asking it has reasonable grounds for thinking that the imputation, which it conveys, is well founded. • So “LEAD” & “LOAD” can be done, but with mastery & practise

12. PREVAILING PRACTISE • QSO gives ample power to the court regulate & control in special circumstances the manner and form of questions • Where an attempt was sought to be made to ask something which was not strictly relevant to facts in issue or was couched in a needlessly offensive & indecent form, the court was perfectly within its right to disallow the questions and to give a warning to the counsel putting it. Art 145

13. REFRESHING MEMORY • The general rule is that a witness is not allowed to read from a document prepared for litigation as this will destroy spontaneity • but a witness is allowed to refresh his memory from a document or photofit made contemporaneously with the facts. • 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 more accurate and, if referred to, may help to stimulate the memory to recall the facts • Three mechanism are available under QSO to deal with the refreshing doctrine • Manner u/a 155 • Manner u/a 156 • Manner u/a 157

14. REFRESHING U/A 155 • A witness may, while under examination, fresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory • This is to be regulated subject to bonafide lapse of memory. • Modes • By any writing made by witness himself • By any writing made by any other person • By referring to the copy of any document • Court satisfaction • By reference to professional treaties in case of expert • Instances • Large number of transactions • Technical terminologies • List of discovery of documents

15. MANNER U/A 156 • A witness may also testify to facts mentioned in any such document as is mentioned in Article 155, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document • Difference • Witness’s memory which is evidence of a document itself not having been tendered • u/a 156 it is the document which is evidence of facts contained in it

16. MANNER U/A 157 • RIGHT OF ADVERSE PARTY • To ask for the production of the document • To inspect the document • Police diaries • Secondary evidence • To cross examine the witness • Basically Art. 157 is clog / check the misuse / abuse of preceding articles

17. DOCTRINE OF REFRESHING AT COMMON LAW • The doctrine of refreshing works in a little improvised way at common law based upon certain pre-requisites • CONTEMPORANEITY • 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 after the relevant event. • DOCUMENTS READ OVER & ACCEPTED AS ACCURATE • 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 witness • PRODUCTION & HANDING OVER • It must be handed over to the opposite party or his advocate to enable him to inspect it and to cross-examine • PRODUCTION OF THE ORIGINAL • LEGAL STATUS OF THE DOCUMENT

18. OUT OF COURT REFRESHING • R v. Richardson is the precedent to understand the concept • That a witness may read over in private a statement made to the police at an earlier date in order to refresh his memory • That this may be done even in circumstances where he would not have been allowed to do so by reference to the statement in open court • In that case, the Crown witnesses were allowed to read over their statements so as to refresh their memories before the trial took place. • This was not revealed in the course of testimony of these witnesses but emerged from that of a police officer who was called to give evidence subsequently

19. DISCREDITING ONES OWN WITNESS • At common law one can impeach one’s own witness if he is an unfavorable or hostile witness (Art 150) • UNFAVOURABLE WITNESS • An unfavorable witness is one who merely fails to prove what the party hopes for • At common law an unfavorable witness cannot be cross examined but the party may call another witness • In Ewer v. Ambrose the defendant called a witness to prove the partnership but proved contrary, it was held that defendant could rely on testimony of another witness.

20. DISCREDITING ONES OWN WITNESS • 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 asked leading questions. His character may be attacked and witnesses may be called to show that he is a liar • The procedure recommended by the Court of Appeal in R v Maw • Is that if a witness fails to give evidence expected of him, • It is undesirable to proceed immediately to treating the witness as hostile • 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 memory from relevant notes. • If he refuses, then he should be treated as hostile. • But there was some doubt whether his previous consistent statements could be proved

21. READING MATERIAL • Bhojraj v Sita Ram – AIR 1936 PC 60 • ZafarIqbal – 1988 PLD 2022 • Ch. Muhammad Abdus Salam – 1996 SCMR 351 • M.Ibrahim – PLD 1955 FC 14,16 • IR v Turgel (2000) 2 All ER 872 (this was a criminal case, but the ratio applies also to civil cases • Ali NawazGardezi – PLD 1963 SC 51, 86 – this too is a criminal case, but applies to civil cases • Muhammad Azam v Muhammad Iqbal – PLD 1984 SC 95, 123