AN OVERVIEW OF ARTICLE 59

"EXPERT' OPINION" <!--[if gte mso 10]> "EXPERT' OPINION"...AN OVERVIEW OF ARTICLE 59 By Nasir Majeed, LL. M. Lahore As a general rule, opinion of third person is inadmissible in evidence and the witnesses are to state the facts they themselves saw, heard or perceived.1 Witnesses are not allowed to express their opinion. Formation of opinion is left to the Judge on the basis of the facts stated .or told or proved before them. 2 If witness is permitted to express his opinion, it would amount to the delegation of judicial function.3 But the common law rule that opinion evidence is inadmissible is subject to three exception i.e. (i) General reputation is admissible to prove matter of public concerns (ii) Expert opinion is admissible to prove matter of specialized knowledge on which the court would be unable to reach a conclusion (iii) Non expert evidence may be received on matters within the competency and experience of lay person generally. 4 hence, in common law despite the general rule of exclusion of opinion evidence, the opinion of expert is also admissible. 5 The Qanun-e-Shahadat Order also permits the courts to receive the expert opinion but only on limited subjects. 6 1. Hanif v. State PLD 1992 Lah. 314; see also C.D Field. Law of Evidence, 5 vols.vol.3 11th edition (Law Publisher India (Pvt.) Ltd.) Page 2141 2. C.D Field, Law of Evidence, 5 vols.vol.3 11th edition (Law Publisher India (Pvt.) Ltd.) Page 2441 3. Mubarak Ali Ahmad v. State of Bombay 1958 S.C.R 323. 4. Peter Murphy, Murphy on Evidence, 8th edition (2003) (Oxford University Press.) page 365 5. Ibid 6. Article 59 of The QANUN-E-SHAHADAT ORDER, 1984. The definition clause of Qanun-e-Shahadat Order, 1984 does not provide any space to the definition of expert. 7 It is also an admitted fact that definition of expert is not an easy task. Granger's case is the best example on this point. In this case it was held that it would be impossible to give an exhaustive definition of expert.8 Similarly, no clear and defined rule is to be found in books as to what constitute an expert opinion, much depends upon the matters of the questions in regard to which opinion is asked.9 To define an expert is a question for the trial Judge in each case whether the proposed witness is an expert or not on the matter which requires special knowledge or expertise. 10 7. See Article 2 of The QANUN-E-SIIAIIADAT ORDER, 1984 8. Granger v. Attorney General 1957 N.Z.L.R 355. 9. Ardes Oil Co. v Gibson 63 Pa, ST146 10. I.H DENNIS, the Law of Evidence, (Sweet & Maxwell 1999 Reprinted in 2000.) Page 661 An expert is, from derivation of word, one instructed by experience and to become an expert, one requires a course of precious habits or practice or study so as to familiarize with the subject. 11 In early cases an expert was taken as any remunerated witness available on hire to pledge their oath in favour of the party who paid him. 12 But soon, the courts changed their tone and began to define expert as "one who by experience has acquired special or particular knowledge of the subject of which he undertakes to testify".13 One step further in this direction, Maule J says "All persons, who practise a business or profession which requires them to possess certain knowledge in hand, are experts".14 Anes CJ of Rhodes Island says "Knowledge of any kind gain for and in the course of one's business as pertaining thereto is precisely that which entitles one to be considered to be expert so as to render his opinion admissible in evidence. 15 To be an expert, no formal qualification, diploma and technical education is necessary only his experience may make him an expert.16 The term expert has been broadly defined in the order as any person specially. skilled in that field. 17 In Pakistan, an expert is a person who has special knowledge and skill in particular calling to which enquiry relates. 18 The analysis of all aforesaid cases reveals that for an expert witness formal education or formal training is not a must. The most important thing which counts is the experience of an expert. If he is experienced his opinion can be relied upon safely. 19 The same principle was discussed and approved in Abdul Qadir's case. 20 11. Nelson v. Mutual Insurance Co., 71 NY 453 12. Lord Atinger v. Baghton (1873) (41) Eq-358 at PP 373-374. 13. Rice v. Lockett 14. Vander Donckt v. Thelluson, 8 C B 812. 15. Buffin v. Harris Sri 250-Rogers, 2nd edition Page 3. 16. See AIR 1958 Mays 150 17. Article 59 of QANUN-E-SHAHADAT ORDER, 1984 18. Habibullah Khan v. Collector Quetta, 1984 P I, D (Sic) 19. Ibid 20. 1976 Law weekly (CR)38 In the words of justice Doe "when a witness offered himself as an expert, three questions necessarily arise, (a) Is the subject concerning which he is to testify is one upon which the evidence of expert can be received (b) What are the qualifications necessary to entitle a witness to testify as an expert (c) Has the witness these qualifications. 21 It is also necessary to remember that the courts do not take experts opinion for granted22 because merely describing oneself as an expert does not makes oneself an expert until it is proved. 23 An expert must have the qualification prescribed by law if he claims to be an expert. 21. Words cited in Roger's expert testimony S, 17 (1883) edition, page 25 22. Muhammad Rashid v. The State PLD 1984 SC (AJ&K) 110 23. See Ragbher Singh v. State of Punjab 1976 C.L.R 81 (Pun & Har) Here, qualification does not mean the formal qualification or education or formal training. The only qualification of an expert described in the law is that he must be specially skilled in that field where he wishes to testify as an expert. 24 The courts only see the experience of an expert witness. The next question is, how much experience an expert witness must possess in order to be called as an expert. Addressing this question, the court held that there is no test laid down by which we can determine with mathematical precision just how much experience a witness must have had in short he must be to render him competent to testify as an expert. 25 It is for the courts to decide within the limits of a fair discretion whether the experience of the supposed expert has been such as to make his opinion of any value. 26 Even some writers are of the view that there is no requirement of formal training or formal education or professional practice or even membership of a relevant organization or learned society. 27 Describing oneself as an expert can't make oneself as an expert rather the courts, before receiving the testimony of an expert, checks his ability or expertise by asking some questions. In America, to check the competency of the witness, a preliminary examination takes place in which the witness may be asked to state his acquaintance with the subject matter in reference to which his opinion is desired. 28 In Pakistan, this type of examination is called voire dire. In France, experts are officially delegate, by the courts to inquire into facts and report upon them and they stand on a much higher footings than either ordinary or scientific witness among us. 29 An expert, despite being experienced or especially skilled, is under obligation to state the test he applied and observation he made while applying that test. 30 Furthermore, he is also under legal obligation to give the reason of his opinion, if he does not give; his opinion is of no value. 31 So, in a case where the inspector neither stated his experience nor his qualification, the court was declined to treat him as an expert. 32 24. Article 59 of Qanun-e-Shahadat Order , 1984 25. Forgery v. First National Bank 66 Ind 123, 125 26. McIver v. Bigelon 40 mich 215 , 270 27. Paul Roberts and Adrian Zuckerman, Criminal Evidence, (Oxford University Press (2004)) page 308 28. Roger, Roger's expert testimony 2nd edition, S. 17 29. Best, Best on Evidence, 11th edition S. 515 30. See Central Excise Department Banglore v. Sono Sundrum 1980 M.L.J (cs) 436 31. Lal Hussain v. Bagga 1983 CLC 656 Pesh 32. Central Excise Department Banglore v. Sonu Sundaram 1980 M.L.J (cs) 436 It is a settled rule that opinion of expert can't be received in evidence in cases where the subject matter of inquiry is such that it may be presumed to be within the common knowledge and in the ordinary walks of life33 or which does not require any peculiar habit or course of study in order to qualify a man to understand it. 34 Similarly, the experts are not allowed to give their definition upon the construction of documents, this being a matter of law, is a question solely for the court. 35 It is only when the matter inquired of, lies within the range of the peculiar skill and experience of witness and is one of which the ordinary knowledge and experience of mankind does not enable them to see what references should be drawn from the facts, that the witness may supply opinion as their guide. 36 It is extremely difficult to determine as the facts are of such a nature that it may be presumed to be within the common experience of all men of common education moving in the ordinary walks of life. Wigmore says that the true criterion is; "on this subject can a jury from this person receive appreciable help".37 The reader must keep this fact in mind that the opinion of expert is not always welcomed. An expert is allowed to speak in exceptional circumstances and only on limited subjects. For example, an expert is allowed to testify where there is no eye witness in the case. 38 Similarly an expert's opinion is inadmissible to furnish the courts with scientific information which is likely to be within the experience and knowledge of Judge and jury. 39 If on the proven facts a Judge or jury can form their own conclusion without help, then the opinion of an expert is unnecessary. 40 The subjects on which an expert is competent to testify are mentioned in The Qanun-e-Shahadat Order, 1984 and the subjects are foreign law, matters of science and art, identity of handwriting and finger impression. 41 In the following lines all these subjects are discussed one by one. 33. See Dourne v. Swan & Edger, 1903, 1 Ch 211 34. Grove v. Bulahigo, The Times 30th March, 1898 35. Kennedy v. People 39 NY 245 36. New England Glass Co v. Lovell, 7 Crush 319 37. Wigmore, S. 1923 38. See M Aslam v. Khursheed 2003 YLR 2958 39. Pper Lawton LJ in R v. Ternor (1975) QB 834 at 841 40. Ibid 41. The Qanoon-e-Shahadat Order, 1984 Article 59 Explaining the term foreign law "Cheshire" states "for the purpose of private international law, the expression foreign law means a distinctive legal system prevailing in the territory other than in which the court functions, therefore, it includes not merely the law existing in a State under foreign political sovereign but also the law prevailing in a sub-division of a political State of which the forum is part. 42 The term 42. Cheshire, Cheshire On Private International Law 9th Edition page 9 foreign law is not concerned with the origin of the law. If a law is recognized in a State, it is not a foreign law though this law has a foreign origin.43 There are different method of proving foreign law for example the foreign law may be proved by a practitioner44 or by a person who has special knowledge of the law acquired from experience45 or holder of an official situation which requires legal knowledge. 46 Similarly, a teacher of law is also competent to be called as an expert on foreign law. 47 In England, the ordinary method to prove a point of foreign law is by calling witnesses skilled in the law of that country. 48 In our jurisdiction, foreign law may be proved by the evidence of a person specially skilled in that law49 or by direct reference to the books published under the authority of that country50 and the reports of the rulings of that country. 51 43. See Aziz Baano v. M. Ibrahim Hussain I.L.R (1975) 47 all 823 44. Briston .v. Sequeville (1850) 196 Ex.269.115 E.R 118 45. Ajami v. Controller of Customs (1954) LW.Z.R1405 p.c 46. M.N. Howard, Phipson on Evidence, 4th edition Sweet & Maxwell Limited, London 1990 page 801 47. Braileg v. Rhodision Consolidated Ltd (1920) 2ch 95, 102-3 48. Burger v. N.Y. Life Assurance Co b1928, 86 Lj KB 930 49. Article 59 of Qanun-e-Shahadat Order, 1984 50. Article 52 of Qanun-e-Shahadat Order , 1984 51. Ibid The next area where an expert can testify is "science and art". It is important to note that in American and English text books the words used are science, art and trade or skill52 and the words used in our text books are "science and art"53 but this does not mean that this departure has narrowed the term "science"54: It has also been submitted that the term should be construed widely. 55 The terms "science and art" have not to be taken in any technical sense but as includes anything that requires specialized knowledge, skill, study or experience or is otherwise beyond the comprehension of a layman. 56 So, the word "science" includes all human knowledge which has been generalized and systemized and has obtained methods, relations and the forms of law and the word "art" denotes every operation and human intelligence, whereby something is produced outside of nature. 57 In matters of "science and art" which are beyond the understanding of Judge or jury, the person who are specially skilled in that science or art can depose.58 The terms "science and art" occurring in Article 59 includes all branches of human knowledge requiring special study, experience or training, 59 52. See Halls, 3rd edition, Vol. 15, Para 587 53 Article 59 of Qanun-e-Shahadat Order , 1984 54. C.D Field, Law of Evidence, 5 vols.vol.3 11th edition (Law Publisher India Pvt. Ltd.) Page 2442 55. Ibid 56. Stephen, Stephen's Digest of the Law of Evidence, pages 67-68 57. Aitchison and Co v. U.A 15 C.T. Cr. 140 58. Article 59 of Qanun-e-Shahadat Order , 1984 59. Akhtar Ali v. Khadim Hussain PLD 1973 Lah. 81 The next area where expert opinion is admissible is the finger impression.60 Identification by finger prints has become a most important branch of criminal investigation and has proved to be of service both in the detection of crime and the identification of offence. 61 The words "finger impression" were added to the present section by Act 5 of 1899 on account of the decision of Calcutta High Court in R v. Fakir Muhammad62, where it has been held that the comparison of thumb impression must be made by the court itself and the opinion of the expert was not admissible under S. 45 of the Act. 63 When the Indian Evidence Act, 1872 was enacted the words "finger impression" were not included in it. The reasons for the addition of the words "finger impression" will appear from the statement of the objects and reasons. 64 Under this section as amended by Act 5 of 1899, expert evidence may be given of finger impression. 65 Evidence of finger impression is now admissible but the person giving his opinion, as in other cases, must 'be shown to be an expert. 66 Furthermore, the report of finger print expert is inadmissible unless he is called as witness and is subjected to cross-examination. 67 60. Article 59 of Qanun-e-Shahadat Order, 1984 61. Will Crimi Ev Pg19 62. CWN 33 63. Indian Evidence Act, 1872 64. See CWN 34 65. R v. Sandea, 3 NLR 1: 5CRLJ220 66. Pitain v. Baho Singh, A 1924 N183 67. (1909) Cr App Rep 79 Although finger prints sometimes afford valuable evidence of identity as held in R v. Castleton68 but great caution must be exercised in arriving at a conclusion by comparison of thumb impression and the evidence of witnesses who were present and the statement of eyewitness to the occurrence should not be lightly brushed aside. 69 In Indian Jurisdiction, in many cases, it was held that it is not safe without any corroboration to convict a person of serious crime solely and entirely upon similarity of thumb mark or finger prints.70 But English cases describe a different story. For example in R v. Castleton71 an expert witness informed the court that he took the finger prints of the accused and found them to be identical with those on some objects with which the case is concerned. It was held by the court that it was very strong circumstantial evidence, and conviction has been upheld when there was no other evidence of identity. 72 68. Baidyanath v. Allif Jan Bihi 36 CLJ 9 69. Golap Chandra Mahanta v. State of Assam 1989 Cri Li NOC 95 70. (1909) 3 Cr App Rep 74 71. Ibid 72. (1909) 3 Cr App Rep 74 Another area where the expert opinion is welcomed is hand writing. By nature and habits, individuals contract a system of forming letter which gives a character to their writing as distinct as that of human face. 73 But one thing must be remembered that science of hand writing is not an exact science unlike the science of finger impression. 74 In The Qanoon -e- Shahadat Order, 1984 there are different modus operandi with which the hand writing of a person may be proved. 75 The hand writing of a person may be proved by calling any person who is acquainted with the hand writing of that person. 76 Similarly the hand writing may be proved by sending it to the expert. 77 The court, itself, can examine the handwriting of a person. 78 For identifying the hand writing of any person, no special qualification has been prescribed. As it has already been stated that hand writing of a person may be proved by the opinion of an expert. 79 The expert is not to be necessarily a qualified one even if he has spent much lime in this field, he is a competent expert.80 The court held that even a solicitor may be treated as an expert in hand writing even if he had acquired his knowledge as an amateur. 81 The evidence of an expert is inadmissible if there is no comparison with hand writing proved beyond doubt or admitted in open court in the presence of any party affected. 82 The expert opinion regarding the hand writing of a person is weak evidence and this principle has been upheld in number of cases that the evidence of expert on hand writing of a person is weak evidence. 83 Lawson says that it is of the lowest type of evidence. 84 73. Vandovori Karthikiya v. Kamalammu, A 1994 Ap 102 74. Scot v. Creror, 11 Ontario 514, 554 75. See Articles 59,61,71 and 84 of Qanun-e-Shahadat Order ,1984 76. Article 61 of Qanun-e-Shahadat Order, 1984 77. Article 59 of The Qanun-e-Shahadat Order, 1984 78. See Article 84 of The Qanun-e-Shahadat Order,1984 79. See R v. Silver lock (1894) 2 Q.B 766 80. Ibid 81. Suresh v. R 39 C 606 82. R v. Coleman 6 COX 163 83. New Eng Glars Co v. Lowell, 7 Crush 319 84. Lawson, Lawson's Expert Evidence It may be found from the foregoing discussion that the use of witnesses being to inform the courts respecting facts, their opinions are generally not receivable as evidence as this rule is not without its exceptions. Being based on the presumption that the court is as capable of forming a judgment on the facts as the witness, when circumstances rebut this presumption, the rule naturally gives way to science, art, handwriting, finger impression and foreign law. The opinion of expert by itself may be relevant but would carry little weight with a court unless it is supported by a clear statement of what he noticed and on what he based his opinion. 1 The expert should, if he expects his opinion to be accepted, put before the court all the material which induced him to come to his conclusion, so that the court, although not expert, may form its own judgment on those materials. 2 The mere mention that certain kinds of tests were applied and certain results obtained might be relevant as a piece of evidence, but would not be conclusive.3 1. M. Monir, Principles and Digest of the Law of Evidence, (Law Publishing Company Lahore) page 631. 2. ibid 3. Crown prosecutor v. Gopal 1941 M.551.