Transcript Evidence in Civil cases

EVIDENCE IN CIVIL CASES
Mian Ali Haider
L.L.B., L.L.M (Cum Laude) U.K.
SESSION TRAIL

Articles 117 to 129 of 1984 Order
 Relationship of Art. 117 & 118
 Articles 119,122,125,126,127,128,129 – their significance in
the context of civil cases?
– Relationship between burden of proof and presumptions
– In civil cases, burden of proof keeps on shifting
– As used in Articles 117 and 118
– Its relation with right to begin
 Standard of proof in civil cases: is preponderance , but even in
civil cases, the standard ‘beyond reasonable doubt’ may apply
RELATIONSHIP BETWEEN BURDEN OF PROOF
AND PRESUMPTIONS

Onus of Proof!
 When a plaintiff comes to court and asks for certain
relief on the basis of certain facts.
 The onus of proof of those facts has to be on him, for
the relief prayed for cannot be granted unless the
court is able to hold the existence of those facts
proved
 But the law makes provision for certain presumptions
and any party on whom a burden is cast may shift the
onus of proving any fact to the other party by
showing that fact should be presumed to exist.
RELATIONSHIP BETWEEN BURDEN OF PROOF
AND PRESUMPTIONS

Articles of QSO should be read as subject to
these presumptions.
 Rules as to rebuttable presumption are no more
than rules as to burden of proof when the court
presumes the existence of fact, the burden of
proving its existence is on the parties that
asserts its non existence.
 Conversely, when the burden of proving the
fact is on a particular party, the court is
presuming its non existence.
WHAT IS BURDEN OF PROOF?
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BOF on the pleadings should not be confused with the burden
of adducing evidence.
Which is described as “shifting”. The BOP on the pleadings
never shifts, it always remains constant.
The initial burden of proving up pima facie case in his favour
is cast on the plaintiff; when he gives such evidence as will
support a prima facie case, the onus shifts on the defendant to
adduce the rebutting evidence to meet the case made out by the
plaintiff.
As the case continue to develop, the onus may shift back again
to the plaintiff.
It is not easy to decide at what particular stage in the course of
the evidence the onus shifts from one side to the other.
BURDEN OF PROOF

When after the entire evidence is adduced, the
court feels it cannot make up its mind as to
which of the version is true.
 It will hold that party on whom the burden lies
has not discharged the burden;
 But if it has on the evidence no difficulty in
arriving at a definite conclusion, than the BOP
on the pleadings recedes into the background.
ONUS OF PROOF

The question of onus of proof loose its importance
when relevant evidence has been adduced and placed
on the record.
 This question becomes material only where the court
finds the evidence so evenly balanced that it can
come to no definite conclusion.
 In such scenario, the rule is that the party on whom
the onus lay must fail.
 But where evidence has been lead by both sides and
considered, the question of onus loose its importance.
BOP IN CIVIL & CRIMINAL CASES

In general, the rules of evidence in civil & criminal
cases are the same, but some provisions in QSO are
peculiar to criminal and other peculiar to civil cases.
(117 and 118)
 Whereas, a civil case a mere prepodenerence of
probability is sufficient base for the decision
 However, in a criminal case persuations of guilt must
amount to such a moral certainty as convenience the
mind of the court beyond all reasonable doubt.
BOP IN CIVIL & CRIMINAL CASES

In criminal case no weight of preponderant
evidence is sufficient, short of that which
excludes all reasonable doubt. The party
accused is entitled to the benefit of the leagl
presumptions in favour of innocence, and in
doubtful cases that may suffice to turn the
scale in his favour.
 This rule has a prudence has infact attained the
force of law founded on the public policy.
READING MATERIAL
 Sardar
Bibi – PLD 1954 Lah 480,
483
 Lakshmanna – AIR 1949 PC 278, 285
 Muhammad Ibrahim – 1980 CLC
296
 Zakaullah – 1991 SCMR 2126, 2133
 Rashid Ahmed Khan – PLD 1994 SC
36
DOCUMENTARY EVIDENCE

With the ever-increasing amount of documentary material
coming before the courts it is of great importance to provide a
clear definition of a document‖ for the purposes of admitting
these as documentary evidence.
 The relative position of a given piece of evidence will be greatly
affected should it not fall within the definition of a document.
– The basic unit of documentary evidence,

 the document‖ itself,
 therefore requires detailed investigation.
With the growth and expansion of what has now come to be
accepted as a document‖, it is important to examine how it has
evolved beyond the traditional paper product to incorporate
different media
THE “DOCUMENT” AT COMMON LAW

The concept of a document for the purposes of English
common law was described in 1908 by Darling J in R v
Daye1 as comprising
“any written thing capable of being evidence”.
 This embodied the long established 18th century view of
a documentary record as an instrument;
a thing, capable of conveying evidence.
 This also attempted to instil the definition with a certain
degree of longevity by not assigning an unduly
prescriptive definition to the term ―document.
“DOCUMENT” AT QSO

"Document" means any matter expressed or
described upon any substance by means of
letters, figures or
 marks, or by more than one of those means,
intended to be used, or which may be used, for
the purpose recording that matter;
ADDITION’s IN “DOCUMENT”
ARE STILL GOING ON
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At common law, therefore, a document was described as anything
upon which information could be visibly inscribed with
recognisable and legible characters.
The object or medium upon which these characters were inscribed
was itself unimportant so long as it was intelligible and
information could be gleaned from it by the human eye
This did not anticipate the advent of computer disks or other
modern information storage devices, and so the ongoing
development of technological innovation therefore required
significant adjustment to the common law definition of a
“document”.
This view was judicially endorsed by the Supreme Court in 1979 in McCarthy v
O'Flynn, to the effect that “a document is something which teaches or gives
information or a lesson or an example of construction”

The most recent legislative definition of a document
is contained in the Criminal Justice (Surveillance) Act
2009 which defines a document as ―including:
– any book, record or other written or printed material in any
form, and
– any recording, including any data or information
stored, maintained or preserved electronically or
otherwise than in legible form.
 164. Production of evidence that has become
available because of modern devices, etc.:
 In such cases as the Court may consider appropriate,
the Court may allow to be produced any evidence that
may have become available because of modern
devices or techniques.
AUTHENTICATION

Authenticity is an aspect of relevance. Unless a document
is authentic - that is, unless it was written by its supposed
author and is genuinely what it purports or is asserted to
be - it is, in most cases, irrelevant.
 The requirement to demonstrate the authenticity of a
document is related to the requirement to identify and
show the relevance of items of real evidence.
 The obligation may be satisfied in many different ways
depending on the kind of document, the purpose for which
it is adduced and the evidence available.
 Methods of authentication include testimony of an author
or a person who saw the author sign the document, and
testimony of a handwriting expert
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Authenticity is not the only aspect of relevance. E.g.,
the content of the document must also have some
connection with the case. However, the authenticity
aspects of relevance require special attention as they are
at present governed by an admissibility rule which
operates in addition to the relevance rule
Authentication as an aspect of relevance and a
requirement of admissibility.
Authenticity may, however, remain in dispute even
though it is sufficiently established to allow a document
to be received in evidence.
Other aspects of authenticity not solely related to
admissibility (including the use of presumptions to
facilitate authentication)
THE COMMON LAW
ADMISSIBILITY RULE

Many documents indicate their authenticity on their
face. Letters, memoranda, file notes, and other common
documents will often indicate who wrote them, who
received them, when they were produced and other
information demonstrating authenticity.
 However, the common law rule of admissibility
requires that before a document is received in evidence
its authenticity must be shown by evidence extrinsic to
the document itself.
 The indications on the face of the document are not on
their own regarded as sufficient to demonstrate the
authenticity aspects of relevance.
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This rule is little discussed in Commonwealth textbooks, though it is
comprehensively dealt with in United States texts.
In UK the operation of the rule is seen in the requirement that documents
which are not part of an agreed bundle must be introduced through a
witness who testifies to the authenticity of the document.
The rule imposes, as a precondition of admissibility, a requirement
additional to the demonstration of relevance.
The question which arises is whether there is any policy reason for this rule
to continue
in the United States, the rule has caused real injustice. In Keegan v Green
Giant Co the plaintiff sued in respect of illness resulting from eating peas
from a can labelled with the defendant's name.
The court would not admit the label because there was no independent
authenticating evidence indicating who had produced or distributed the can.
But, as the dissenting judge pointed out,
– “the defendant company was in a much better position to demonstrate
the authenticity of the can's label than the plaintiff.
PROVISIONAL RELEVENCE

Sometimes it is not immediately obvious that an item of evidence
is relevant. In order to demonstrate relevance it may be necessary
to adduce other evidence to link the item with the issues in the
proceeding.
 This will often be true in the case of documentary evidence. For
example, the contents of a document may have a bearing on the
issues in the case, but only if a particular person wrote it, and it
may not be possible from the document to tell who wrote it.
 In that event, the relevance of the document depends on the
ability to identify the writer.
 It may be impossible to identify the writer at the same time as the
document is introduced.
 The judge must therefore have the power to admit the document
subject to later evidence demonstrating its relevance
PRESUMPTIONS
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Our law makes considerable use of presumptions. Many
presumptions are best considered in relation to that part of
the substantive law in which they operate
In general terms, presumptions operate by allowing the
court to infer or assume the truth of a fact (the "presumed"
fact)
After a party has sufficiently demonstrated the existence
of other facts (the "basic" facts).
In many cases presumptions shift an onus by requiring an
opponent to adduce evidence or prove the contrary.
The use of presumptions is, therefore, intimately
connected with burdens and standards of proof
TYPES OF PRESUMPTIONS
PRESUMPTIONS SHIFTING THE EVIDENTIAL BURDEN.

These presumptions require the court to assume the
existence of the presumed fact, after it is satisfied of the
existence of the basic fact or facts,
 so long as there is no evidence tending to negate the
existence of the presumed fact.
 If the opponent of the presumption adduces evidence
(including evidence by way of crossexamination) tending
to negate the existence of the presumed fact then the
court must decide the question on the basis of all the
evidence in the case.
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The ultimate burden of proving the presumed fact is not disturbed
TYPES OF PRESUMPTIONS
PRESUMPTIONS WHICH SHIFT A BURDEN
OF PROOF.

These presumptions require the court to assume the
existence of the presumed fact after it is satisfied of
the existence of the basic fact or facts.
 In order to defeat the presumption the opponent must
demonstrate by evidence (which may include
evidence by way of cross-examination) that the
presumed fact does not exist on the balance of
probabilities
FACTORS FORMING “PRESUMPTION”

PROBABILITY.
– Presumptions may be created to accord with an
assessment of the most likely factual situation

CONVENIENCE.
– Presumptions may be created in order to avoid a
party having to prove a fact when the evidence may
be difficult or time consuming to find or likely to be
unavailable. Presumptions may also be created in
order to foreclose consideration of an issue, and
shorten the trial, unless a party can seriously
question the presumption by adducing evidence
FACTORS FORMING “PRESUMPTION”
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FAIRNESS.
– Presumptions may be created to compel a party to
prove or adduce evidence concerning an issue
because it is fair that such a burden should be
imposed. For instance, a presumption may be
imposed against a party with superior access to
information about an issue.

POLICY.
– Presumptions may be created in order to favour an
outcome which for reasons of policy is to be
preferred
PRESUMPTIONS IN QSO

In the law of evidence presumptions are used to
facilitate the admissibility of documentary evidence
and the proof of facts.
 The QSO and many overseas evidence statutes create
presumptions in relation to authenticity, sometimes
referred to as self-authenticating presumptions.
 Such presumptions allow documents to be admitted
which on their face explain their own identity.
 This, however, will be the general rule, so some
existing presumptions will be unnecessary under the
code
DOCUMENTARY EVIDENCE

Documentary Evidence and its importance in
civil cases:
– Documents, basis of claim or defence
– Documents upon which a party relies in support of
his claim or defence
– Relevant provisions in the CPC regarding their
reception or rejection (XIII)
EXCLUSIONARY RULE

Order XIII R. 2 creates the Exclusionary Rule in civil cases.
 The rule of exclusion in the O.13, R.2 only comes into operation
when the documents on which the parties rely have been but were
not, produced at the first hearing…
 where according to the evidence, at the date of the first hearing
certain documents were not in the possession of the parties and did
not know their existence
 HELD
 Discretion in case of official record of undoubted authority
to admit documents ;
 Discretion to be exercised when it is necessary for just
decision of case.
PUBLIC DOCUMENT
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There have been statutory provisions dating well back into the
nineteenth century to facilitate the proof of public documents
(documents held or produced by public bodies) and official seals
and signatures.
These provisions, contained in the QSO i,e. Art.85 read with 150 of
the constitution, have been enacted in a more or less piecemeal
fashion over the years. They are at present complicated and
difficult to relate to one another
– – "In public documents made for the information of the Crown, or all the
King's subjects who may require the information they contain, the entry by a
public officer is presumed to be true when it is made, and is for that reason
receivable in all cases, whether the officer or his successor may be concerned
in such cases or not."‘
Lord Hudson
PUBLIC DOCUMENT
 Meaning of public documents – Art 85; and Art
150 of the Constitution
 Meaning of private documents – Art 85
 Registration of documents under the
Registration Act 1908
 Record maintained under the Land Revenue
Act
 Presumption as to the genuineness of public
documents (90-101)
MODE OF PROOF

Both public and private documentary evidence
is governed by their manner of production
 Primary evidence (73)
 Secondary Evidence (74)
 Content of documents (72-77)
READING MATERIAL
Gopal Das – AIR 1943 PC 83, 87
 Abdullah v Abdul Karim – PLD 1968 SC 140
 Muhammad Ashraf – PLD 1973 SC 160, 178
 Kumar – AIR 1929 PC 99
 Kanda – PLD 1949 PC 270
 Allah Ditta – PLD 1961 Lah. 643
 Allah Varyo – 1990 CLC 1899
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