17.2 Oral Evidence

17.2 Oral Evidence

Quick Answer: Under QSO Chapter IV, Article 70 allows proof of all facts except the contents of documents by oral evidence. Article 71 demands that oral evidence be direct: if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if heard, of one who heard it; if perceived by any other sense, of one who perceived it by that sense; if it refers to an opinion or the grounds of an opinion, of the person who holds that opinion on those grounds. That directness rule is the statutory engine of the hearsay exclusion for LAW-GAT.

Why oral evidence matters on LAW-GAT

QSO is 20 marks. Oral-evidence stems are short and lethal: Is the testimony direct? Can A prove what B told him? When may oral proof replace a document? Master Arts. 70–71, then know when the law sends you to documentary rules or to Art. 46-style exceptions (statements of persons who cannot be produced).

Reading rule: Identify the fact to be proved. If it is contents of a document, Art. 70 points you away from free oral proof—use the documentary chapter (primary/secondary evidence). If it is a non-documentary fact, demand direct oral evidence under Art. 71.

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Article 2 backdrop — What is “oral evidence”?

Under the QSO’s definitional scheme (Art. 2), evidence includes:

1. All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry—such statements are called oral evidence; and
2. All documents produced for the inspection of the Court—called documentary evidence.

So “oral evidence” is courtroom testimony (including, as teaching notes, written answers by a mute witness or gesture answers by a deaf-mute when the Court receives them as the witness’s statement)—not street gossip and not police station chat.

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Article 70 — Proof of facts by oral evidence

Article 70 provides that all facts, except the contents of documents, may be proved by oral evidence.

Link to Art. 35: Oral admissions as to contents of documents are restricted so parties cannot evade the documentary regime by “he admitted what the paper said.”

Best-evidence idea in one line: Prefer the document for what the document says; use oral evidence for what people perceived about non-documentary facts.

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Article 71 — Oral evidence must be direct

Article 71 is the heart of this section. Oral evidence must, in all cases whatever, be direct—that is to say:

Worked illustrations (exam style)

1. Sight: To prove that accused stabbed the victim in the bazaar, call W who saw the stabbing—not W2 who heard about it at tea.
2. Hearing: To prove the words of a threat or a bribe conversation, call the person who heard the words.
3. Other senses: Smell of gas, heat of a flame, taste of a substance—witness must be the perceiver.
4. Opinion: Handwriting expert’s opinion must come from the expert who formed it on stated grounds—not a clerk who “heard the expert say it was forged.”

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Hearsay through the Art. 71 lens

Pakistani LLB teaching often says “hearsay is no evidence.” Under the QSO, the operational test for oral evidence is Art. 71 directness:

Why exclude hearsay (policy for MCQs):

1. Original speaker not under oath in Court.
2. No cross-examination of the real narrator.
3. Court cannot observe demeanour of the true source.
4. Risk of mistake, exaggeration, and fabrication multiplies with each retelling.

Trap: Do not confuse (a) testimony that certain words were spoken (direct if the witness heard them) with (b) using those words for the truth of the matter asserted when the speaker is not before the Court and no exception applies.

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Exception paths — when “someone else’s statement” may still come in

Art. 71 is the rule; the QSO’s relevancy chapter supplies controlled exceptions. Highest-yield for LAW-GAT:

Article 46 area — Statement of relevant fact by person who is dead or cannot be found, etc.

When the maker is dead, cannot be found, has become incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay/expense, certain prior statements become relevant—classically including:

Exam discipline: Name the exception path; do not say “hearsay is always banned” or “hearsay is always allowed because the speaker is dead.”

Admissions and confessions

Statements that are admissions (Arts. 30–36) or confessions (Arts. 37–43 filters) are not proved as ordinary “direct perception of the event by a third-party witness”; they are proved as the party’s/accused’s own statements under those articles. Still, the witness who heard the admission/confession must usually give direct evidence of hearing it (Art. 71), and confessions face police/custody bars.

Islamic-procedure teaching note — shahadah-ala-shahadah

Some LAW-GAT / LLB materials discuss shahadah-ala-shahadah (evidence on evidence): where the original witness cannot appear for specified causes, secondary witnesses may depose to what he would have said, under strict conditions—and not as a free substitute in Hudood prosecutions. Treat this as an exception cluster taught alongside Art. 71, not as repeal of directness.

Expert opinion

Opinion evidence is “direct” under Art. 71 when the opinion-holder testifies to the opinion and grounds. A lay witness repeating “the doctor told me it was poison” is not a substitute for the medical witness or properly proved medical report path.

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Oral evidence versus documentary exclusion (bridge to §17.3)

Even perfect eyewitnesses cannot freely rewrite a transaction the law requires to be proved by writing.

Best-evidence themes for oral chapter:

1. Direct oral over hearsay oral.
2. Primary documentary over secondary documentary.
3. Documentary memorial over oral variation when Arts. 102–103 apply.

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How oral evidence is received (practical exam colours)

Tests of oral evidence (teaching triad often asked descriptively):

1. Oath (or affirmation) — solemnity and perjury risk.
2. Cross-examination — the great engine for truth-testing.
3. Demeanour — Court’s observation of the witness under examination.

Hearsay fails these tests because the real speaker is absent.

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Direct vs circumstantial (do not mix with hearsay)

Trap: Circumstantial evidence can be Art. 71-direct (the witness personally saw the blood-washing). “Circumstantial” is not a synonym for “hearsay.”

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Classic exam scenarios

Scenario A — Bazaar stabbing: W1 saw the blow. Admissible direct oral evidence under Arts. 70–71. W2 only heard neighbours describe it— inadmissible to prove the blow.

Scenario B — Telephone threat: Complainant heard the caller’s words. Complainant’s testimony of what he heard is direct under Art. 71 (hearing). Identity of the caller is a separate proof problem.

Scenario C — Document contents: Plaintiff tries to prove a written contract’s clauses solely by his own oral summary while the original is in his pocket. Art. 70’s exception + documentary chapter block this strategy.

Scenario D — Dying declaration path: Victim, before death, names the assailant; statement recorded; victim dies. Offered under Art. 46-type exception—not as ordinary courtroom direct evidence of the victim (who cannot attend), but as a statutory exception to the hearsay/directness problem.

Scenario E — Expert second-hand: Investigating officer says “the ballistic expert told me the bullet matches.” To prove the expert opinion, call the expert (or follow the proper report-proof path)—do not treat the IO’s retelling as Art. 71 opinion evidence.

Scenario F — Confession heard by civilian: Villager V heard accused say “I killed X” when accused was not in police custody and V is not a police officer. V may give direct evidence of hearing the words; whether the statement is a usable confession still depends on Arts. 37–43 (and it is not an Art. 38 police confession).

Scenario G — Custody hospital remark: Accused in police custody confesses to another patient. Even if the patient gives direct evidence of hearing, Art. 39 may still bar proof of that confession.

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High-yield exam traps

1. Treating Art. 70 as allowing oral proof of document contents freely.
2. Calling second-hand narration “direct” because the reteller is sincere.
3. Equating circumstantial with hearsay.
4. Forgetting that opinion evidence must come from the opinion-holder (Art. 71).
5. Ignoring exception paths (Art. 46 cluster) when the speaker is dead.
6. Using oral evidence to contradict written terms barred by Arts. 102–103.
7. Assuming a witness who heard a confession automatically overcomes Arts. 38–39.
8. Confusing police investigation statements with courtroom oral evidence under Art. 2.

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One-line revision card

Art. 70 — prove facts by oral evidence except document contents · Art. 71 — oral evidence must be direct (saw / heard / perceived / opinion-holder) · Hearsay fails directness · Exceptions: Art. 46 cluster, admissions/confessions paths, limited Islamic secondary-witness themes · Documentary memorials exclude oral contradiction (Arts. 102–103) · Circumstantial ≠ hearsay · Oath + cross-examination + demeanour test oral proof.