ENACTMENT NO. 16 OF 1992 SYARIAH COURTS EVIDENCE ENACTMENT 1992
PART I - RELEVANCY CHAPTER II - QARINAH
Section 20. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.
(1) Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases-
(a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which the cause of that person’s death comes into question.
Such a statement is relevant whether the person who made it was or was not at the time when it was made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;
(b) when the statement was made by any such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;
(c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;
(d) when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which if it existed he would have been likely to be aware, and when the statement was made before any controversy as to the right, custom or matter had arisen;
(e) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;
(f) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when the statement was made before the question in dispute was raised;
(g) when the statement is contained in any document which relates to any transaction as is mentioned in section 13(a);
(h) when the statement was made by a number of persons and expressed feelings or impressions on their part relevant to the matter in question.
ILLUSTRATIONS
(a) The question is as to the date of A’s birth.
An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that on a given day he attended A’s mother and delivered her of a son, is a qarinah.
(b) The question is whether A was in Kota Kinabalu on a given day.
A statement in the diary of a deceased advocate regularly kept in the course of business that on a given day the advocate attended A at a place mentioned in Kota Kinabalu for the purpose of conferring with him upon specified business is a qarinah.
(c) The question is whether A and B were legally married.
The statement of a deceased Kadi who married them under circumstances that the celebration would be a crime is a qarinah.
(d) The question is whether A, a person who cannot be found, wrote a letter on a certain day.
The fact that a letter written by him is dated on that day is a qarinah.
(e) The question is whether A, who is dead, was the father of B.
A statement by A that B was his son is a qarinah.
(f) The question is what was the date of the birth of A?
A letter from A’s deceased father to a friend, announcing the birth of A on a given day, isa qarinah.
(g) The question is whether and when A and B were married.
An entry in a memorandum book by C, the deceased father of B, of his daughter’s marriage with A, on a given date, is a qarinah.
(2) Evidence relating to such statement shall not be admissible in cases of hudud and qisas.
(3) Evidence relating to such statement shall be given by at least two male witnesses or one male witness and two female witnesses.
(4) Evidence relating to such statement shall not be admissible under the following circumstances-
(a) when the maker of the statement object to the statement being given as evidence;
(b) when the maker of the statement ceased to be qualified togive evidence;
(c) when the maker of the statement refuse to give evidence on ground that he has no evidence to be given relating to the matter in dispute or he did not make the statement or he made a mistake in relation to the said statement.