EVIDENCE IN CIVIL CASES

1. EVIDENCE IN CIVIL CASES Mian Ali HaiderL.L.B., L.L.M (Cum Laude) U.K.

2. 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

3. 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.

4. 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.

5. WHAT IS BURDEN OF PROOF? • 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. READING MATERIAL • SardarBibi – 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

11. 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

12. 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.

13. “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;

14. ADDITION’s IN “DOCUMENT” ARE STILL GOING ON • 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”

15. 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.

16. 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

17. 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)

18. 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.

19. 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.

20. 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

21. PRESUMPTIONS • 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

22. 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. • The ultimate burden of proving the presumed fact is not disturbed

23. 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

24. 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

25. FACTORS FORMING “PRESUMPTION” • 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

26. 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

27. 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)

28. 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.

29. PUBLIC DOCUMENT • 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

30. 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)

31. 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)

32. 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