Primary and Secondary Evidence Under the Law of Evidence
A Legal Perspective on Primary and Secondary Evidence
Evidence plays a crucial role in the judicial process, forming the foundation for proving or disproving facts in legal disputes. In India and Pakistan, robust legal frameworks govern the admissibility and weight of evidence.
In India, the Indian Evidence Act of 1872 provides the primary legal framework, while in Pakistan, the Qanun-e-Shahadat Order, 1984 (QSO), governs the rules of evidence. Both jurisdictions recognize the distinction between primary and secondary evidence, with nuanced variations in their specific definitions and applications. This article explores the concepts of primary and secondary evidence under both the Indian Evidence Act and the QSO, examining their definitions, legal provisions, admissibility criteria, and practical implications for legal professionals and law students.
Introduction
In civil as well as criminal cases, litigant parties are required to produce evidence in support of their claims. The law while admitting evidence produced by the litigant parties takes great caution and care. It is carefully examined whether the evidence produced is primary or secondary, As it is the evidence produced before the court, which is the key instrument in determining a fact in issue. Now various questions may arise like what is included in primary and secondary evidence and what are the rules regarding their admissibility etc. All these are elaborated below.
What is Evidence?
The term Evidence used in judicial proceedings means the facts, testimony, or documents that may be legally received in order to prove or disprove a matter in issue.
Relevant Provisions:
Articles 72 to 76 of Qanun-e-Shahadat Order 1984 or Sections 61 to 65 of Indian Evidence Act 1872 deal with Primary and Secondary evidence.
Kinds of Evidence:
(a) Oral Evidence:
Oral evidence refers to the statements made by witnesses under oath and is governed by Article 71 of the QSO in Pakistan and by Sections 59 and 60 of the Indian Evidence Act. It includes any assertion or testimony given in court that relates to the facts in question. Oral evidence must, in all cases, be direct. Where it refers to a fact that could be heard, it must be proved by the evidence of a person who says he himself heard it.
In Other words, Testimony presented verbally by a witness during a legal proceeding, typically under oath, is known as oral evidence. It includes evidence provided in writing, through sign language, or with the aid of assistive devices by individuals with disabilities or impairments that hinder their ability to speak.
As per the Oxford Reference:
"Generally, spoken evidence given by a witness in court, usually on oath. Under the Criminal Justice Act 2003 oral evidence includes evidence that, by reason of any disability, disorder, or other impairment, a person called as a witness gives in writing or by signs or by way of any device.
In my article 'Cross-Examination: Unveiling the Art of Advocacy,' I provide a detailed analysis of cross-examination. Furthermore, my article 'Legal Insights: Exploring Modes of Examination in Court' examines the different ways evidence is presented and tested in court. I encourage you to read them if you're interested in learning more about courtroom procedures.
Real-World Scenario:
In a criminal trial, a witness named Mary provides firsthand testimony about a crime she witnessed. Mary's sworn account of the events, delivered verbally in court, constitutes oral evidence. Her testimony provides crucial details to the Court regarding the sequence of events and the actions of those involved.
(b) Documentary evidence:
Documentary evidence is a broad term in evidence law that can include almost any document introduced in a trial that is on paper, such as contracts, deeds, or letters.
According to Article 2(i)(c)(ii) Qanun-e-Shahadat Order 1984:
“All documents produced for the inspection of the Court are called documentary evidence.”
According to the Black Law Dictionary:
“Documentary evidence derived from conventional symbols by which ideas are represented on material substances. Such evidence as is furnished by written instruments, inanimate objects admissible for the purpose, as distinguished from oral evidence.”
Documentary evidence would always take preference over the oral deposition. The document could be rebutted by a document having better legal sanctity only.
Case Law: PLD 2021 Supreme Court 715
In this landmark case, the Supreme Court of Pakistan elucidated the principles governing documentary evidence under the Qanun-e-Shahadat Order, 1984. The court highlighted distinctions between "relevancy," "admissibility," and "proof" of evidence, especially in the context of documentary materials.
Relevancy and Admissibility: The court clarified that while a fact may be relevant, it is not necessarily admissible unless it complies with the provisions of the Qanun-e-Shahadat Order, 1984. Relevance depends on the logical relationship between the evidence and the fact in question, whereas admissibility is determined by legal provisions.
The Honorable Court observed that: "The expression “relevancy” and “admissibility” had their own distinct legal implications under the Qanun-e-Shahadat, 1984 as, more often than not, facts which were relevant may not be admissible. On the one hand, a fact was “relevant” if it was logically probative or dis-probative of the fact-in-issue, which required proof. On the other hand, a fact was “admissible” if it was relevant and not excluded by any exclusionary provision, express or implied. What was to be understood was that unlike “relevance”, which was factual and determined solely by reference to the logical relationship between the fact claimed to be relevant and the fact-in-issue, “admissibility” was a matter of law. Thus, a “relevant” fact would be “admissible” unless it was excluded from being admitted, or was required to be proved in a particular mode(s) before it could be admitted as evidence, by the provisions of the Qanun-e-Shahadat, 1984. As far as the latter was concerned, and that too relating to documents, admissibility was of two types: (i) admissible subject to proof and (ii) admissible per se, that is, when the document was admitted in evidence without requiring proof."
The Honorable Court pointed out that: " Mode of proof was the procedure by which the “relevant” and “admissible” facts had to be proved, the manner whereof had been prescribed in Articles 70-89 of the Qanun-e-Shahadat, 1984. In other words, a “relevant” and “admissible” fact was admitted as a piece of evidence, only when the same had been proved by the party asserting the same. In this regard, the foundational principle governing proof of contents of documents was that the same were to be proved by producing “primary evidence” or “secondary evidence”. The latter was only permissible in certain prescribed circumstances, which had been expressly provided in the Qanun-e-Shahadat 1984."
Objections to Mode of Proof: It was held that objections to the mode of proving a document must be raised during the trial to allow rectification. Failure to do so at the appropriate stage bars parties from raising such objections later. As a general principle, an objection as to the inadmissibility of a document could be raised at any stage of the case, even if it had not been taken when the document was tendered in evidence.
However, the objection as to the mode of proving contents of a document or its execution was to be taken, when a particular mode was adopted by the party at the evidence-recording stage during trial. The latter kind of objection could not be allowed to be raised, for the first time, at any subsequent stage. This principle was based on the rule of fair play. As if the objection regarding the mode of proof adopted had been taken at the appropriate stage, it would have enabled the party tendering the evidence to cure the defect and resort to another mode of proof.
The omission to object at the appropriate stage became fatal because, by his failure, the party entitled to object allowed the party tendering the evidence to act on the assumption that he had no objection about the mode of proof adopted.
Evidentiary Value: The court underscored that once a fact is relevant, admissible, and proven, its evidentiary weight depends on the trial judge's qualitative assessment based on logic, common sense, and the peculiarities of the case.
Types of Documentary Evidence:
- (i) Primary Evidence
- (ii)Secondary Evidence
Proof of Contents of Documents; U/a 72:
Contents of documents may be proved either by Primary evidence or Secondary evidence.
1. Primary Evidence
Meaning of Primary Evidence:
(Article 73): Primary evidence means and includes:
- (i) The original document itself produced for the inspection of the court.
- (ii) An oral account of the original evidence i.e. of a person who saw the occurrence and gives an account of it.
Primary evidence encompasses two key aspects:
Original Document: This refers to the actual, physical document itself being presented for inspection by the court. This could be a contract, a will, a letter, or any other relevant document. Photostat copies could not be procured in the absence of original documents. The law provides that private documents must be proved by primary evidence except in cases mentioned in Article 76.
Direct Testimony: It includes the firsthand account of an individual who witnessed the occurrence or event in question. This person's oral testimony provides direct evidence of what they personally observed.
Following are the instances provided by the order (Evidence Act) that explain primary evidence.
(a) Document executed in several parts:
When each party to the document wants to have the same in his own custody, then the document is always executed in several parts. In this case, each party fully acknowledges each part of the document and, keeps one of it. Each part of the document is considered as primary evidence of all the others.
(b) Document executed in Counterparts:
The term counterpart literally means duplicate. Here the document is also executed in various parts but each part is executed by one party only. In this case, each part is primary evidence against the executing party while secondary evidence against the non-executing party.
Illustration:
"A contract between ‘A’ and ‘B' is copied out twice. 'A' signs one document alone ‘and ‘B' signs the other, Then as against 'A' the document signed by him is primary evidence, and against 'B’, It is secondary evidence.
(c) Document made by a Uniform process:
The expression "made by one uniform ‘process" means made or printed at one time from one. original. Where a number of copies are made by a uniform process, e.g. printing, photography each of these copies are primary evidence of each other, while secondary evidence to the common original. e.g. when several copies are made by a photocopy machine, each copy is primary evidence of each other while secondary evidence to the common original.
(d) Electronic Form of Automated Information System:
A printout or other form or output of an automated information system is primary evidence of the original, if it was generated, sent, received, or stored in electronic form if the automated information system was in working order at all material times.
(e) Document Made in Electronic Form:
A printout or other form of reproduction of an Electronic document other than the document of an automated information system, first generated, sent, received, or stored in electronic form, shall be treated as primary evidence where a security procedure was applied thereto at the time it was generated, sent, received or stored.
Case Law: 2022 CLC 1337 Islamabad
Printout of an email is the output of a digital system created for generating, sending, receiving, storing, reproducing, displaying, recording, and processing messages without active human intervention, therefore, constitutes primary evidence pursuant to Art. 73 of Qanun-e-Shahadat, 1984, except where an automated information system is proved not to have been in working condition at material times.
Case Law: 2015 PLD 231 Lahore
Information conveyed over modern devices such as SMS. Such information was a means of communication validly accepted all over the world, however the witness in whose presence such information was conveyed or received was always important to prove a fact through its verification---Although under Art.73 of the Qanun-e-Shahadat, 1984 modern devices were legally acceptable yet in order to prove a fact, the required procedure had to be followed.
2. Secondary Evidence:
(i) Meaning of Secondary Evidence
“Secondary evidence is a report or an oral account of the original evidence or a copy of a document or a model of the original thing.”
(ii) Definition of Secondary Evidence
“Secondary evidence is evidence which may be given under certain circumstances in the absence of other better evidence-which the law requires to be given first.
Explanation of Secondary Evidence:
According to Article 74 of the Qanun-e-Shahadat (Law of Evidence), secondary evidence includes any form of evidence that is not the original document or the direct testimony of a witness. This includes certified copies obtained from public records, mechanically produced copies like photocopies, copies made by comparison with the original, evidence of counterparts in the case of documents executed in multiple parts, and testimony from individuals who have actually read the original document. Secondary evidence is generally considered less reliable than primary evidence and is only admissible under specific circumstances when the law mandates the production of primary evidence first, and it is unavailable. Public documents are generally provable by the production of Secondary evidence.
Documents Which are Included in Secondary Evidence
- (i) Certified Copies (defined under Article 87): By the term 'certified copy' it means an attested copy obtained from the custodian of public records in his official capacity.
- (ii) Copies made by the mechanical process, e.g. photocopy.
- (iii) Copies made from or compared with the original.
- (iv) Evidence against the non-executing party in case of counterparts.
- (v) Evidence of a person who has himself seen the original document. Here "Seen" means read i.e. merely looking at the document is not sufficient.
Exhaustive definition:
Article 74 provides an exhaustive list of secondary evidence which means anything beyond this article, cannot be treated as secondary evidence,
Rule of admissibility (Article 72):
Article 72 of the Order (Law of Evidence) provides the rule of admissibility that the contents of a document may be proved either by primary or secondary evidence.
In the following cases, a certified copy of the documents is admissible
- (i) When the original is a public document within the meaning of Article 85.
- (ii) When the original is not a public document but the law has allowed it to be proved by its certified copies.
Rule of preference :
Article 75 of the Order provides that a document must be preferred to be proved by Primary evidence. It is because the contents of a document can best be proved by the document itself.
This rule of preference is also confirmed by the Holy Quran.
Verses (Translation into English) "Be not averse to writing down (the contract) whether it be small or great with (record of) the term thereof. That is more equitable in the sight of Allah and surer for testimony". “ [Al-Baqra: 252]
However, there are certain exceptions to the above rule, mentioned under Article 76, when secondary evidence may be given:
Exceptions to The Rule of Preference: Cases when Any Secondary Evidence is Admissible
Following are the exception to the rule of preference under which secondary evidence, relating to a document, may be given:
(a) When the original is in the possession of:
- (i) Opposite party; or
- (ii) A person, beyond the reach of court; or
- (iii) A person not subject to law; or
- (iv) A person failing to produce the same even after service of court notice, When the original is lost or destroyed and such losing or destruction is not due to the negligence of the party offering it, e.g. destruction of the original due to fire or flood.
(b) Original is Voluminous Document:
When due to the bulk or volume of the original, copies thereof have been made utilizing microfilming or other modern devices. It may be proved by any secondary evidence
(c) Production of Original is Physically Impossible:
When the production of the original is physically impossible or highly inconvenient e.g. something written on the wall.
(d) Admission of Document:
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. In such cases secondary evidence in the form of written admission is admissible.
(e) Cases where a certified copy of a document is admissible:
In the following cases only a certified copy of a document is admissible:
- (a) When the original is a public document as defined in Article 85.
- (b) When the original is not a public document but the law has allowed it to be proved by its certified copy.
(f) Original Document is Lost or Destroyed:
When the original document is lost or destroyed without any fault of the party offering it, then secondary evidence of any kind may be admissible to prove it. e.g. destruction of the original due to fire or flood.
(g) Original Consists of Numerous Accounts:
In such a case, when the original consists of numerous accounts, or other documents that cannot conveniently be examined in the Court, the concluding remarks of a skilled person of the concerned field after a thorough examination of the original consisting of numerous accounts or other documents, may be brought to serve as secondary evidence.
In other words, when original documents, such as numerous accounts or other complex records, are voluminous or impractical to examine directly in court, the expert opinion of a qualified professional in the relevant field may be admissible as secondary evidence. This expert, after a thorough review of the original documents, can provide their conclusions and insights to the court.
(h) When the original is a part of the judicial record:
When the original document is part of a judicial record, and only a certified copy of it is available, a certified copy of that certified copy may be admissible as secondary evidence.
Reasons for giving secondary evidence:
Secondary evidence should not be accepted without a sufficient reason being given for the non-production of the original, Such reason must come strictly within the ambit of Article 76.
Objection to Secondary Evidence:
Whenever secondary evidence is presented before a court it is the right of the adverse party to object to the same in the court of first instance. Otherwise, this right will not be available in the appellate court. In such case that right would be deemed to be waived.
(d) Order of proof:
When secondary evidence is presented before the court, a question may arise as to whether the execution of the document or its contents is to be proved first. Generally, the execution of the document should be proved first.
Objection to Secondary Evidence:
When secondary evidence is presented in a court of law, the opposing party has the right to object to its admissibility during the initial proceedings. This right to object is crucial, as it allows the opposing party to challenge the authenticity or reliability of the secondary evidence. Failure to object to the secondary evidence in the court of first instance can be considered a waiver of this right and the same will not be available in the appellate Court. In such a case that right would be deemed to be waived.
Application:
The grounds mentioned in Article 76 apply to civil as well as criminal Cases.
Distinction Between Primary and Secondary Evidence
| S.NO. | Aspect | Primary Evidence | Secondary Evidence |
|---|---|---|---|
| 1. | Definition | Primary evidence, as defined by Article 73 of QSO or Section 62 of the Evidence Act, is the highest form of evidence. It is the original document or object that is presented as proof in a legal proceeding. | Secondary evidence is defined by Article 74 of QSO or Section 63 of the Evidence Act. It is evidence that is used in place of primary evidence when the original is unavailable or cannot be produced in court. |
| 2. | Quality | It is considered the "best evidence" or "finest quality" because it is the most direct and reliable form of proof. There is no intermediary or copy involved, reducing the risk of errors or alterations. | Lower quality of evidence; used in the absence of primary evidence. |
| 3. | Nature | Primary evidence is the actual document, recording, or physical object that was directly involved in the event or transaction in question. | Copies of the original document (as defined under Article 74 of QSO or Section 63) |
| 4. | Evidentiary Value | High evidentiary value; the main source of evidence. | Low evidentiary value; an alternative source of evidence. |
| 5. | Admissibility | Generally admissible without conditions. | Admissible only under specific conditions. |
| 6. | Presentation | Primary evidence can generally be presented in court without any prior notice or permission. | Secondary evidence usually requires permission from the court before it can be admitted. |
| 7. | Reliability | A higher degree of reliability. | Subject to closer scrutiny. |
| 8. | Examples | the original signed contract, The original will of a deceased person, The actual weapon used in a crime. | Photocopies, Scanned copies. |
Original Text of the Statute:
Article 72 Proof of Contents of Documents:
The contents of documents may be proved either by Primary or by secondary evidence.
Article 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 counterparts, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation:
Wherein 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.
Article 74 Meaning of Secondary Evidence:
Secondary evidence means and includes:
- (i)Certified copies given under the provisions hereinafter contained;
- (ii) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies;
- (iii) Copies made from or compared with the original;
- (iv) Counterparts of documents as against the parties who did not execute them;
- (v) Oral accounts of the contents of a document given by some person who has himself seen it.
Article 75 Proof of documents by primary evidence:
Documents must be proved by primary evidence except in the cases hereinafter mentioned.
Article 76. Cases in which secondary evidence relating to the 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,
- (d) produce it in reasonable time; 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; When the original is a document of which a certified copy is permitted by this Order,
- (g) or by any other law in force in Pakistan, to be given in evidence. When the original 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 secondary evidence.
In the case of (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 of (f) or (g), a certified copy of the documents but no other kind of secondary evidence is admissible. In the case of (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 documents.
Conclusion
While primary evidence, such as original documents or direct testimony, generally holds greater weight in legal proceedings, the legal system recognizes the value of secondary evidence in certain circumstances. When the original evidence is unavailable or impractical to produce, secondary evidence, like copies of documents or witness testimony based on recollection, can be admissible. However, it's crucial to remember that the weight given to secondary evidence will always be carefully assessed by the court based on its reliability and the specific context of the case.
Relating Questions:
Q. Draw a line of distinction between primary evidence and secondary evidence in the context of a criminal case. Refer to case law to illustrate the difference between the two.
Q. What do you understand by primary and secondary evidence of documents? Under what circumstances secondary evidence of documents is admissible in the court?
Q. Define Primary and Secondary evidence. Under which circumstances secondary evidence is also admissible? Elaborate.