ENACTMENT NO 3 OF 1994 EVIDENCE (SYARIAH COURT) ENACTMENT 1994
PART I - RELEVANCY CHAPTER II - RELEVANCY OF FACTS Iqrar
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 qarillah in the following cases-
(a) when the statement was made by 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;
(b) 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;
(c) when the statement gives the opinion of such person as to the existence of any public right or custom ('lIIf) or matter of 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 ('wf) or matter had ansen;
(d) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose such relationship the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;
(e) 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 pedigree or upon any tombstone. family portrait or other thing on which such statement was made before the question in dispute was raised;
(f) when the statement is contained in any document which relates to any transaction as in mentioned in section 13 (a);
(g) when the statement was made by a number of persons and expressed feelings or impressions on their part relevant to the matter in question;
(h) where the statement was made by a public officer in the discharge of his duties: and
(i) in criminal proceedings only when the statement was made in the course of, or for the purpose of, an investigation or inquiry into an offence under or by virtue of any written law.
ILLUSTRATIONS
(a) The question is as to the date of A's birth.
An entry in the diary of a deceased doctor 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 Lumut 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 Lumut 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 Kadi that he married them under circumstances that the solemnisation 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.
Statement by A that B was his son is qarinah.
(f) The question is when was A born?
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) Evidence relating to statements made under subsection (1) shall be given by at least two male witnesses or one male and two female witnesses.
(3) Evidence relating to such statements shall not be admissible in the following cases:
(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 his competence to give evidence;
(c) when the person who made the statement refuses to give evidence on ground that he has no evidence to be given relating to the matter under dispute, or that he did not make the statement or that he made a mistake in relation to the said statement.
(4) Statements made under this section may be admissible in evidence in cases punishable with Hudud and Qisas but no such punishment may be imposed where the conviction is based on such evidence.