Section 20. Cases in which statement of relevent fact by person who is dead or cannot be found, etc., is qarinah. (EVIDENCE ENACTMENT OF THE SYARIAH COURT 1991

ENACTMENT NO. 2 OF 1991
EVIDENCE ENACTMENT OF THE SYARIAH COURT 1991

PART I - RELEVANCY
CHAPTER 2 - QARINAH
Statements by Persons Who Cannot be Called As Witnesses

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

Statements, written or verbal, or 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 circumstance 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 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

(urf)

or matter of general interest, of the existance 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

(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 family pedigres or upon any tombstone, family portrait or other thing on which such statement was made before the question in dispute was raised;

(g) when the statement is contained in any document which relates to any transactions 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

qarinah .

(b) The question is whether

was in Kota Bharu on a given day.

A statement in the diary of a deceased advocate kept in course of business that on a given day the advocate attenden A at a place mentioned in Kota Bharu for the purpose of conferring with him upon specified business is

qarinah.

and

were legally married. The statement of a deceased

Qadhi

that he married them under circumstances that the celebration would be invalid is qarinah.

(d) The question is whether A a person 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

who is dead, was the father of

Statement by

that

was his son is

qarinah.

(f) The question is what was the date of the birth of

A letter from

A's

deceased father to a friend, announcing the birth of

on a given day, is

qarinah.

(g) The question is whether and when

and

were married.

An entry in a memorandum-book by

the deceased father of

of his daughter's marriage with

on a given date, is

qarinah.

(2) Evidence of such statement shall not be accepted in cases of Hudud and Qisas in accordance with Hukum Syarak.

(3) Evidence of such statement shall be given by at least two male witnesses or one male and two female witnesses.

(4) Evidence of such statement shall not be accepted in the following cases-

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

(b) when the person who made the statement ceases it competency to give evidence;

(c) when the person who made the statement has refused to give evidence saying that he has no evidence to give in respect of the matter under dispute, or that he has made no statement or that he has made a mistake in making the statement.