Author: Zishan Haider
Law of Evidence in Colonial India
Under Muslim rule in India, a uniform Islamic criminal law governed all communities, guided by texts like Fiqh-i-Feroz Shāhi and Fatāwā ‘Ālamgiri. This system evolved with the British East India Company‘s arrival, initially limited to the presidency towns of Madras, Bombay, and Calcutta. English judges, appointed to oversee these towns, adhered to English principles of justice, though official statutes were absent until 1726, when the British introduced English Common Law and an evidence statute.
The Company’s influence grew significantly after the Treaty of Allahabad in 1765, where the Mughal Emperor Shah Alam II granted it “Diwani rights” (or revenue rights), over Bengal, Bihar, and Orissa. This marked a shift, as British officials began incorporating the local legal customs, permitting judges to apply Hindu and Muslim personal laws in family and inheritance cases. By 1833, under Lord Macaulay’s Law Commission, legal reforms introduced a comprehensive legal structure, such as the Indian Penal Code, 1860 and the Code of Civil Procedure, 1859.
The Evidence Act, 1872
The Indian Evidence Act of 1872 marked a watershed moment, creating a unified system of evidence rules across India. Drafted by Sir James Fitzjames Stephen, the Act adapted English evidence laws, incorporating modifications to suit India’s unique context. Before this, there were more than forty Acts ranging from 1609 that would talk less or more about the evidence. There had also been other enactments peculiarly dealing with the law of evidence, i.e. Evidence Act, 1851; Evidence Act, 1877; Criminal Evidence Act, 1898; Bankers’ Books Evidence Act, 1891; Criminal Procedure and Commercial Documents Evidence Act, 1939.
Laws on evidence were inconsistent and often referenced English and Islamic principles without a cohesive system. Though “customary” evidence rules persisted, they lacked formal authority until consolidated by the Evidence Act, which applied uniformly across both presidency towns and the Mofussil (rural regions). With the enactment of the Act, 1872, disparate legal practices were harmonized, simplifying the justice system and laying the foundation for modern Indian evidence law.
Islamisation of Laws in Pakistan
The British judiciary in colonial India, trained in English law, began to infuse English legal principles, like the doctrine of precedent and English Common Law, into Islamic law. While Muslims were often exempt from English law in personal matters, criminal and procedural laws were shaped by English criminology. This fusion gave rise to “Anglo-Muhammadan law,” blending English influences with Islamic principles. However, Islamic law’s distinctive rules on testimony and evidence clashed with the British-imposed
Evidence Act of 1872.
Following the 1947 partition, Pakistan sought to align its legal system with Islamic values, as outlined in the Objectives Resolution, 1949. The nation’s first constitution declared that laws would not contravene Islamic injunctions, with provisions for an Islamic research organization and guidelines for aligning legislation with Islamic teachings. Subsequent constitutions further supported these goals, leading to the creation of the Council of Islamic Ideology (CII) in 1962 to recommend measures to Islamize existing laws.
Yet, despite these constitutional directives, progress toward Islamizing laws rooted in English or Anglo-Muhammadan traditions lagged until General Zia-ul-Haq‘s regime in 1977. Zia revitalized the CII and introduced Shari‘at Benches in provincial High Courts and the Supreme Court to ensure laws complied with Islamic injunctions. These benches could nullify laws deemed incompatible with Islamic principles. Eventually, these provincial Shari‘at Benches were consolidated into the Federal Shari‘at Court (FSC), which gained the authority to review appeals and revise criminal court orders, especially in Hudud cases. The FSC played a significant role in challenging and amending laws to conform to Qur’anic and Sunnah injunctions, marking a decisive shift towards Islamization in Pakistan‘s legal system.
Islamisation of the Law of Evidence
The Federal Shari‘at Court (FSC) undertook a review of laws like the Evidence Act of 1872, examining them for compatibility with Islamic principles. The key question was whether to replace the Act entirely with an Islamic Law of Evidence based on the Qur’an and Sunnah or to selectively amend only those sections conflicting with Islamic injunctions. While the Council of Islamic Ideology advocated for a complete replacement, proposing a new law in 1982, the Pakistan Law Commission preferred targeted amendments to retain familiar aspects of the existing Evidence Act and enhance its efficiency.
However, the draft proposed by the Council ordinance notably excluded significant portions of the original Act, such as Sections 5 to 55, deeming them “unimportant” despite their compliance with Shariah. This decision sparked debate, as many felt that many useful and practical provisions were discarded without adequate justification, potentially impacting the continuity and functionality of Pakistan’s legal system.
Transition to Qanun-e-Shahadat, 1984
After much debate, the Pakistan Law Commission’s view prevailed, leading to the Qanun-e-Shahadat, 1984, which replaced the British version of the Evidence Act, 1872. This new “Order” retained many provisions of the old Act that aligned with Islamic principles, though its objective, outlined in the preamble, was entirely different. The Qanun-e-Shahadat aimed to align evidence law with the teachings of the Qur’an and Sunnah, a purpose absent in the original Evidence Act.
As to its structure, the Order closely follows the format of the Evidence Act, organizing the rules of evidence into three main parts: (i) Relevancy of Facts, (ii) Mode of Proof, and (iii) Production and Effect of Evidence. However, the “Order” introduced Islamic concepts, especially regarding witnesses, early in the document, marking a departure from the Act’s original scheme. Moreover, courts were now instructed to apply principles of equity, justice, and good conscience as defined in Islamic jurisprudence.
For interpreting the “Order”, courts and lawyers are encouraged to reference Islamic legal literature and juristic principles, rather than relying solely on interpretations from the repealed Act. However, the wisdom of the legislator is very clear that the rest of Islamic evidence laws, unless formally adopted by the Qanun-e-Shahadat, are not automatically applicable in the Pakistani courts.
