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Old Tuesday, October 19, 2010
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Default Qanoon-e-shahadat---- notes

++++++ QANOON-E-SHADAT ORDER, 1984 +++++++
=============================================
=============================================

Qanoon-e-shadat order 1984 is acode of rules and laws which provides guidelines in the field of evidences, to the effect to finish ambiguity in cases and to bring the court at the right conclusion of justice.

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.

================================================== ================================================== ======================================


DYING DECLARATION:
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Dying declaration means such statement, which is given by the dying person. inother words dying declaration is a staement 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 recoreded 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.
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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 relitigating 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 victimised party to show both inducement and detrimental reliance, i.e.:
there must be evidence to show that the representor 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 representor 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 Mut. 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 a issue arises.
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  #3  
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IDENTIFICATION PARADE:
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An examination conducted by the magistrate during the course of investigation, for the purpose of identifying a culprit through victom 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 crimje.

Identification proceedings are facts which estaclish 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
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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:
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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.


================================================== ================================================== ======================================



JUDGEMENT-IN-REM :
- - - - - - - - - - - - - - - - - - -
- - - - - - - - - - -- - - - - - - -

Judgement-in-rem means an adjudication pronounced upon, the status of some particular matter by a competent authority or court. A judgement-in-rem is always
admissable 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 juggement-in-rem is a judgement which binds all men, and not only the parties to the suit in which it was passed, and that it belongs to possitive law,
to say which judgement are to be judgement-in-rem whether for reasons of international comity or domestic expediency.

A judgement-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 judgement furnishes conclusive evidence of the points it decides, not only against the parties who are actual litigants in the case, but
against all others.


JUDGEMENT-IN-PERSONAM
- - - - - - - -- - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - -

Judgement-in-personam means, a judgement inter-parties, it is an ordinary judgement between the parties , in cases of contract , torts or crime.

In other words judgement-in-personam means a judgement between the parties in a suit, it is such judgement 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 JUDGEMENT-IN-REM AND JUDGEMENT-IN-PERSONAM:
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(1). A judgement-in-rem is conclusive against the world as to the status of the res. A judgement-in-personam is conclusive only between parties or privies.

(2). The final judgement of probate, matrimnial, admiralty or insolvency courts confering 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 judgement -in-rem, while judgement-in-personam is the resolution of a particular
dispute between two parties.

(3). A judgement-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 judgement was given."
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ALIBI
-------------------------
-------------------------


Alibi is a plea of defence, (in respect of innocence of accused) by which the accused suggests to the court that he was some where 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 occurence 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 prooving this plea is on accused, and if that person succeeds in establishing that plea, he will be entitled to acquittal.

================================================== ================================================== ======================================


RES-GESTAE
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----------------------------------------------

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 cnnected 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 piculiarity 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.
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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 unfavourable 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, demeanour 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 discretionto allow the prosecution to cross-examine prosecution witnesses after
declaring them hostile.


PRINCIPLES APPLLCABLE TO THE ASSESSMENT OF EVIDENCE OF HOSTILE WITNESS:-
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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 spokenin
different tones. When a person speaks in different voices, it is for the court to decide, in what voice he speaks the truth.
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