Section 20. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is qarinah (SYARIAH COURTS EVIDENCE ENACTMENT 2004

ENACTMENT NO. 11 OF 2004
SYARIAH COURTS EVIDENCE ENACTMENT 2004

PART I - RELEVANCY
CHAPTER 2 - QARINAH
Statements by Persons who cannot be called as Witnesses

Section 20. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is qarinah

(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 qarinah 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 resulted in his death, in cases in which the cause of that person's death comes into question.

Such a statement is qarinah 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 acknowledgement 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 `urf 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, `urf 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 paragraph 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 qarinah.

(b) The question is whether A was in Kuala Lumpur 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 Kuala Lumpur for the purpose of conferring with him upon specified business is qarinah.

(c) The question is whether A and B were legally married.

The statement of a deceased Qadi that he married them under circumstances that the celebration would be invalid is 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 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 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, is 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 qarinah.

(2) The evidence of such statement shall be given by at least two male witnesses or one male and two female witnesses.

(3) The evidence relating to such statement shall not be admissible under the following circumstances:

(a) when the person who made the statement forbids the statement to be given as evidence;

(b) when the person who made the statement ceases to be competent to give evidence;

(c) when the person who made the statement refuses to give evidence on the ground that he has no evidence relevant to the dispute or that he did not make the statement or that he made a mistake in relation to the said statement.