Sunday, 9 September 2012

Primary and Secondary Evidence

Primary and secondary evidence is discussed in detail in the Qanon-e-Shahadat Ordinance 1984. It is the evidence statute in Pakistan at the moment... The relevant articles are mentioned below:-

72. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.
COMMENTARY
Arts. 72, 75, 78, 79. Court can consider a document admissible if a document produced is on record but Presiding Officer has not put exhibit number on the document.
2a. Evidence, admissibility of. Petitioner contended that copies of forms regarding sanction of plan were not public documents and could not have been exhibited without formal proof. Held: No objection having been raised when such documents were tendered in evidence and exhibited, no objection could be allowed to be raised at later stage in revision.
3. Non-production of original document before Settlement Authorities. Effect. Joint allotted of shop in dispute. Defendant claimed that plaintiff had surrendered his claim to the extent of his ½ share in shop in question and had executed deed of surrender in his favour. Such deed, however, having not been placed before Settlement Authorities, could not be verified and accepted after notice without recording the statement of plaintiff. Deed of surrender, therefore, had no value and on basis thereof, P.T.D. for the whole shop should not have been issued in favour of defendant alone. Permanent Transfer Deed issued in favour of defendant to the extent of plaintiff’s share in shop in question, was thus not valid

73. Primary evidence. “Primary evidence” means the document itself produced for the inspection of the Court.
Explanation 1. Where a document is executed in several parts, each part is primary evidence of the document.
Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2. Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
Illustration
A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
COMMENTARY
To prove contents of documents, claimant is bound to produce primary or secondary evidence unless execution of the same is admitted by the opponent.

74. Secondary evidence. — “Secondary evidence” means and includes—
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
Illustrations
(a) A photograph of an original is secondary evidence of its contents though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy, compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.
COMMENTARY
Report of Magistrate would be enough to justify attraction of Art. 76(c) for purpose of production of secondary evidence in terms of Art. 74.4a
Qanun-e-Shahadat Order is applicable to Provincially Administered Tribal Areas including Malakand Division. Murder cases cannot be decided on basis of Qasamat as it is not recognized as a mode of evidence under Qanun-e-Shahadat Order. Courts in PATA should follow provisions of Qanun-e-Shahadat Order, particularly Art. 17, in their true perspective.

75. Proof of documents by primary evidence. — Documents must be proved by primary evidence except in the cases hereinafter mentioned.
COMMENTARY
Execution of sale-deed by a person claiming to be holding power-of-attorney from the owner. Owner denying having executed any power-of-attorney in favour of said person. Original power-of-attorney was not produced in Court, Photostat copy produced could not, in the absence of original, be taken into consideration. Person holding purported power-of-attorney did not appear in Court to contest suit by the owner (plaintiff). Defendant (vendee) acknowledge in his statement before Court that he was not supplied original power-of-attorney at the time of execution of sale-supplied original power-of-attorney at the time of execution of sale-deed. Power-of-attorney was thus, a forged document and person executing sale-deed on basis thereof, had no authority to execute any sale-deed on behalf of the owner (plaintiff). Sale-deed executed in favour of vendee-defendant was, thus, not valid.6

76. Cases in which secondary evidence relating to document may be given. — Secondary evidence may be given of the existence, condition or contents of a document in the following cases:—
(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produce it; and when, after the notice mentioned in Article 77 such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative-in-interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when, due to the volume or bulk of the original, copies thereof have been made by means of microfilming or other modern devices;
(e) when the original is of such a nature as not to be easily movable;
(f) when the original is a public document within the meaning of Article 85;
(g) when the original is a document of which a certified copy is permitted by this Order, or by any other law in force in Pakistan, to be given in evidence;
(h) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection;
(i) when an original document forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible as a secondary evidence.
In cases (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (f) or (g), certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (h), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such document.
COMMENTARY
Secondary evidence of report of identification parade cannot be allowed or permitted to be adduced when no effort had been made to locate the original report of identification parade.6a

77. Rules as to notice to produce. — Secondary evidence of the contents of the documents referred to in Article 76, paragraph (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such notice to produce it as is prescribed by law; and, if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case;
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

78. Proof of signature and handwriting of person alleged to have signed or written document produced. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature of the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.
COMMENTARY
Suit for specific performance of agreement to sell property. Disputed signatures. Plaintiff is required to prove the signatures of the executant of the agreement.7

79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
COMMENTARY
Revisional jurisdiction, exercise of. Courts below had recorded very cogent reasons for decreeing plaintiff’s suit by placing reliance upon circumstantial evidence as also on evidence on record for coming to conclusion that neither document in question, was proved to have been executed nor the same was verified in accordance with law. Original document was also not placed on record. Findings recorded by Courts below on the question of execution of alleged document being lawful could not be interfered with. Judgments and decrees of Courts below were maintained in circumstances.8
Proof of execution of private document. Execution of such document had to be proved by examining the scribe and an attesting witness. Such persons having not been examined, document in question, would be deemed to have not been proved and could be excluded from consideration.9
Agreement to sell. Proof and admissibility. Scribe of document when a competent witness. Evidence of one marginal witness and scribe. Evidentiary value of. Agreement to sell was proved through the statement of one marginal witness and scribe of the document in question. Ordinarily a scribe who had merely scribed a document and handed it over to parties for their signatures and the signatures of attesting witnesses would not become competent attesting witness, if such document was executed elsewhere in his absence. Where, however, document in question, was actually executed in presence of scribe and parties and attesting witnesses had signed the same in his presence, he (scribe) could be treated as attesting witness although he had not signed the document in that capacity.1
Agreement to sell. Execution of. Proof of. Parties had executed document in presence of scribe and signed it. Even attesting witnesses had signed document in presence of scribe. Scribe can be treated to be an attesting witness although he has not signed it in that capacity. Requirements of provisions of Article 79 read with Article 17 of Qanun-e-Shahadat have been substantially complied with. Admittedly original document as placed on record, but record having been burnt, was reconstructed under orders of High Court. No objection was raised at time of reconstruction of file regarding genuineness of agreement to sell. Held: No jurisdiction defect in impugned judgments and decrees of Courts below or any misreading or non-reading of evidence has been pointed out to justify interference in concurrent findings of fact recorded by Courts below. Petition dismissed.2
Marginal witnesses of disputed deed. Evidentiary value of. No lacuna in the evidence of marginal witnesses was apparent or pointed out, therefore, their veracity could not be described. Evidence of such witnesses, alone was sufficient to prove the document in question, even if other evidence was altogether ignored.3
Proof of execution of document required by law to be attested. Exception. Documents required by law to be attested would not be used as evidence until two attesting witnesses, who if alive were amenable to jurisdiction of Court and capable of giving evidence were produced. Not necessary to call attesting witnesses to prove execution of a documents, which was (not a will) registered in accordance with Registration Act, 1908, unless execution thereof, was specifically denied by the person who allegedly executed the document. Document in question, being registered one, and its existence having not been denied, its execution could be proved by certified copy thereof.4

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