Institute of Law

Name = Abrar Ali Abro

Roll No= 11

Class = 5th Year Section “A”

Subject= Law Of Evidence II

Assignment Topic: Elaborate public

and private documents. What is
procedure establishment, application,
validation, genuineness, implementation
and revoking public and private
documents with relevant at least five
case laws?
Table of Contents
Law of Evidence 1
Introductory 2
Public and Private Documents 3
Proof of Public and Private documents 4
Certified copies of public documents 5
Proof of documents by production of certified Copies 6
Document creating financial liability…………………………………....7
Proof of Other Public Documents………………………………….…8
Document whose execution denied…………………………………9
Proof of the Contents of documents……………10
Difference between Public and Private Documents………...………11
Judgements…………………………………………………………12
LAW OF EVIDENCE

In view of the proposed changes in the legal structure of the Country,

introduction of Islamic Laws, particularly with regards to Hadood, and

contemplated changes in the composition of Courts, the Pakistan Law

Commission felt it necessary that the Law of Evidence should be

examined de novo critically from the view point of its suitability to our present

day requirements and its conformity or otherwise to the tenets of Islam, as laid

down in the Holy Quran and Sunnah.

INTRODUCTORY

1. From times immemorial, in every society, whether large or small,

rich or poor, advanced or backward, there have always been disputes between

man and man which required determination and decision by a third person after

weighing and examining the claims of the contesting parties. This exercise on

the part of the third person can be considered as the most elementary stage of

administration of justice. Since the creation of man-kind the concept of

administration of justice, of which evidence is an integral part, has always been

intimately connected with the social aspect of human life and which, by a

process of evolution, has developed into the present complex and intricate

system of administration of civil and criminal justice.

2. We find a reference to the elementary rules of evidence in the Holy

Quran also, which were followed by the ancient generations, e.g., in Sura-i-

Yusaf, it has been stated that when Prophet Yusaf was falsely accused by

Zulaikha of immodest overtures and no direct evidence was available except the

contradictory assertions of the two parties, it was suggested that Yusaf's shirt

may be examined and in case it was torn in front, Zulaikha's allegation was

correct but if the shirt was torn on the back then Yusaf was innocent and

Zulaikha was telling a lie. Similarly Jesus Christ, when a child in the cradle,

was given the power of speech by God to testify to his mother's innocence, when

after his birth Holy Mary brought him to her clan and was accused of an

unchaste conduct by the elders of the clan.

3. Elementary rules of evidence were also in force in the Roman Society,

particularly, while determining the status of the Roman Citizens i.e.

whether sui juris or alieni juris . In the same way the provision in Roman Law,

that if a slave mother was a free citizen even for a day during the period of

actual conception and delivery of the child, the child was a free born citizen,

irrespective of the status of the mother, did require evidence so as to prove

freedom of the mother during the period of pregnancy. In the early period of

Islamic History also the major part of the Law of Evidence which is now

included in the books of Fiqah was based mostly on the usages and customs of

the then Arabian Society which fully suited the requirements of those people

and their educational level even after the advent of Islam. In those days there
was no police to investigate the commission of offences nor was there the

medical jurisprudence in its existing scientific form. In the Courts of those days

the evidence and arguments were not so thoroughly sifted nor was documentary

evidence given any importance or preference over the oral evidence on account

of absence of literacy, as is the procedure of the Courts at the present times.

4. The present day Law of Evidence may aptly be described as law of the

jury system, which was born during the time of the Roman Empire and

developed side by side with the evolution of the ancient Anglo Saxon Law. Most

of the rules relating to admissibility, presumption, impeachment and

confirmation as to credibility of witnesses have considerably been influenced in

their evolution by the system of associating other persons also with the judges,

preferably laymen, in the task of administration of justice. The Law of Evidence

may be defined as "a collection of rules for ascertaining the truth in

controverted questions of fact in judicial inquiries". It bears the same relation to

a judicial investigation as logic to reasoning. The object of judicial proceedings

is to determine and enforce either a right or a liability which invariably depends

on certain facts, and in order to determine the existence or non-existence of such

facts the rules of evidence determine the procedure to be followed in conducting

an inquiry about those facts. The task of ascertaining the facts which are the

essential elements of a right or a liability is, in fact, the most important function

of a Court or a tribunal. This function is regulated by a set of rules and

principles which constitute the Law of Evidence.

5. The scheme of the Evidence Act is to narrow down the field of judicial

inquiry so as to bring it within the prescribed legal limits. The rules with regard

to relevancy contained in the Act are based on logical common sense and the

connection found between certain facts, but those facts which have only a

remote bearing on the fact in issue or which on the ground of public policy, or

for the sake of speedy disposal of cases, or due to certain other reasons, should

not be brought before the court have, deliberately, been left out from the

purviews of relevancy. Thus the Evidence Act, in the interest of speedy

administration of justice, tries to restrict the otherwise unlimited scope of

enquiry. The Act, therefore, helps in quicker disposal of cases which, in case the

logical relevancy was applied to them, would take a much longer time to be

disposed of.

6. In the Indo-Pakistan Sub-Continent prior to 1872, there was no single

exhaustive Code containing the rules of evidence of uniform application in the

Country. The first concrete step in this direction was taken in 1855 in the form

of Act II of that year. Prior to that some half hearted attempts were made by the

enactment of Acts, X of 1835, XIX of 1837, IX of 1840, VII of 1844 and XV of

1852. Out of all these enactments the Act of 1855 is most important. Finally,

however, the legislature passed the existing Evidence Act, I of 1872.

Public and Private Documents

Evidence have great important in both civil and Criminal cases and major part of

procedural law. Evidence is a mean of proof. There can be different kinds of

evidence. Among these kinds, two major kinds of evidence are oral and

documentary evidence. Sometimes evidence is established by producing or

presenting documents before the court. The document so produced for the

inspection of the court, is called documentary evidence. Two types of

documentary evidence, first is public documents and second is Private

documents.

According to the Section 85,86,87,88 and 89 of Qanoon-e-Shahadat Public and

Private Documents are as stated.

85. Public documents:

Lord Blackburn defined a public document as “a document that is made for the

purpose of public making use of it and being able to refer it. It is meant to be

where there is judicial or quasi judicial duty to inquire.

Public documents consists of “the acts of public functionaries, in the Executive,

Legislative and Judicial Departments of Government, including under the

General head the transactions which the official persons are required to enter in

books or registers in the course of their public duty and which occur within the

circle of their own personal knowledge and observation. To the same head may

be referred the consideration of documentary evidence of the acts of state, the

laws and judgments of courts of foreign Government.

Term records” means collection of documents. Where according to the official practice

a book (or file of papers) is maintained containing the copies of the communications

sent, the book of copies thus maintained is itself an official register within the

meaning of Art. 49 and public document within the meaning of Art. 85.

The following documents are public documents: —

(1) documents forming the acts or records of the acts :

i. Sovereign authority

Documents, which are about act or records of act of sovereign authority (such as

statutes, gazettes, proclamations and the like) are public documents.

ii. Official bodies and Tribunals

Documents, which are about acts or records of acts of official bodies and

tribunals (such as records of courts of justice, Judgments, decrees, writ,

warrants, bill etc) are public documents.

iii. Public officers

Documents, which are about acts or records of acts of public legislative, judicial

and executive officers of any part of Pakistan or some foreign country, are

public documents.

iv. Public Records of Private documents

When some documents are public records of private documents and these public

records are kept in Pakistan, such public records are public documents.

v. Documents forming part of Judicial Proceedings

All the documents forming part of the records of judicial proceeding are

regarded as public documents. Documents which were not copies of judicial

record shall not be received in evidence without proof of signatures and

handwriting of a person alleged to have signed or written them.

vi. Maintenance of documents by Public Servant

Documents, which some public servant is to maintain under any law (like

Municipal register of death and birth) are a public documents.

vii. Registered Documents

Registered document is a public document and presumption of truth is attached

to it, but once controverted person taking benefit out of the same has to prove

its contents, specially the value of property mentioned by independent evidence

as presumption of truth to a public document, would not mean that contents of

document in question are unquestionably true.

Viii. Certificates

Certificates are public documents when such certificate is deposited in a

repository according to provisions of Electronic Transactions Ordinances, 2002.

Proof of Public documents

Public document may be proved by the production of the original like any other

document and it is on the ground of convenience that a public document is

allowed to be proved by a certified copy. By the word “may” an option has been

given to a party of proving the contents of public documents by certified copies,

or by production of the original. Where a document in question being a certified

copy of a public document, it need not to have been proved by calling a witness.

Public documents issued by the department of Government in discharge of

duties, are admissible in evidence without proof. It has been held by the

Supreme Court that they should be deemed genuine unless proved otherwise.

86. Private Documents

The Q.S.O does not define the term “Private document” It only indicates that all other

documents besides those mentioned in Article 85 are private documents. Private

writings may be of various kinds.

In the eye’s or Article 86, Private documents simply define “Any documents prepared

by any person or group of persons in his individual or collective capacity, is called a

Private Documents.

Examples of Private Documents

Contract of sale, lease, mortgage deeds, power of attorney, etc. are some examples of

private documents.

Proof of Private documents

Private documents can be proved either by the production of the original itself

or by its copy. But the copy of private documents is only admissible in the

evidence under the circumstances mentioned in Article 76 of the Q.S.O 1984 and

not otherwise.
The proof of Private documents is subject to the general provisions of the act

relating to the proof of documentary evidence contained in Article 82 to 84

Chapter V of the Qanun-e-Shahadat Order deals with the documentary evidence.

The basic rule of evidence as envisaged in Article 72 is that contents of

documents must be proved either by the production of document which is called

primary evidence or oral accounts of the contents which are called secondary

evidence. Production of documentary evidence in form of primary evidence is

essential for just decision. Oral evidence of witnesses cannot be of any value

without producing available documentary evidence.

87. Certified copies of public documents:

Every public officer having the custody of a public document, which any person

has a right to inspect, shall give that person on demand a copy of it on payment

of the legal fees therefore, together with a certificate written at the foot of such

copy that it is a true copy of such document or part thereof, as the case may be,

and such certificate shall be dated and subscribed by such officer with his name

and his official title, and shall be sealed, whenever such officer is authorized by

law to make use of a seal, and such copies so certified shall be called certified

copies.

Explanation: Any officer, who, by the ordinary course of official duty, is

authorized to deliver such copies, shall be deemed to have the custody of such

documents within the meaning of this Article.

88. Proof of documents by production of certified Copies :

Such certified copies may

be produced in proof of the contents of the public documents or parts of the

public

documents of which they purport to be copies.

Judgement Regarding Proof and Authenticity of Documents

1996 CLC 79

89. Proof of other public documents:

The following public documents may be proved as

follows: —

Paragraph 1: (i) Acts, Orders or Notification of the Federal Government in any

of its department or of any provincial government

Acts, Order, or Notification of the Government, Federal or provincial or any

department of any provincial government they can be proved:

By the records of the departments, certified by the heads of those departments

By any document purporting to be printed by order of any such Government.

Paragraph 2: proceedings of the legislature:

By the journal of those bodies respectively or by published Acts or abstracts or

by copies purporting to be printed by order of the Government concerned.

Paragraph 3: Act of the Executive or the proceedings of the Legislature of

foreign country

This can be proved either by way of Journals published by their authority, or

commonly received in that country By certified copy under the seal of the

country or sovereign.

By a recognition thereof in some Federal Act.

Paragraph 4: the proceedings of municipal body in Pakistan

Legitimate way of proving proceedings of municipal body is by a copy of such

proceeding, certified by a legal keeper thereof or by a printed book purporting

to be published by the authority of such body.

Paragraph 5: public document of any other class in foreign country

Foreign documents can be proved by the original or by a certified copy thereof,

which must be certified by the legal keeper of document with a certificate under

the seal of a notary public.

Proof of the contents of document is not proof of its authenticity or genuineness,

document must be proved under section 78, Qanun e Shahadat by proof of

signatures and handwriting. Genuineness or authenticity of document must be

proved by any of the methods recognized by QSO or by reference to its contents

or some other evidence on record which court in its discretion consider to be

sufficient proof of its authenticity or genuineness.

Judgement regarding above articles (AIR 1934 PC 157)

Document creating financial liability:

Document creating liability has to be attested by two witnesses and in order to

prove such document attested witnesses have to be called and if the document is

not proved in accordance with law it has to be excluded from consideration.

Document whose execution denied:

Where execution of document is denied, the party relying on the document is

required to prove execution and contents of same by some cogent and

convincing evidence. Mere placing the questioned document on record does not

prove the document. If it is allegedly written by opponent it must be confronted

to the defendant in cross examination. Private document should not be received

in evidence without proof of signature or handwriting of persons alleged to have

signed the same or the author thereof. Such document cannot be tendered in

evidence through bare statement of counsel for the party and got exhibited.

Proof of the Contents of documents:

The rule of evidence is that the contents of a document are proved either by

primary or by secondary evidence. The primary evidence is the document itself.

The secondary evidence includes certified copies given under the provision of
Qanun-e-Shahadat (Evidence Act), when such copies are compared with the

original ones. Certified copies of public document is admissible per se and can

be received in evidence.

Certified copy of a public document is admissible in evidence without further

proof. The contents of a public document may be proved by producing a

certified copy of it. The original need not to be proved.

Judgement regarding Proof of Contents of Documents 2000

MLD 1653

Difference between Public and Private Documents .

No. Public Document Private Document

1) Section 74 of the Section 75 of the Evidence

Evidence Act Act defines Private

defines Public Document.

Document.

2) The following documents Sec. 75. All other documents are

are public document\s — private.

(1) Documents forming the

acts, or records of the acts

—
 (i) of the sovereign

authority,

(ii) of official bodies and

tribunals, and

(iii) of public officers,

legislative, judicial and

executive, of any part of

India or of the

Commonwealth, or of a

foreign country;

(2) Public records kept in

any State of private

documents.

3) Public documents are kept Private documents are kept in the

in the custody some special custody of some private persons

authority.

4) It is prepared by a Public It is created / prepared out of an

Servant. agreement between the parties

concerned

5) Certified copies of the Certified copies of Private

Public documents may be documents can be issued.

issued to a person requiring

them.
6) Certified copies of Public Certified copies of Private document

Document can be received cannot be taken in evidence without

in evidence without proof. proof of the original document.

Judgments:

1- Judgement regarding Proof of Public Documents (1991

SCMR 1362)

1991 S C M R 1362

Present: Saad Saood Jan and

S. Usman Ali Shah, JJ

Malik ZAFAR ALI--Petitioner

versus

Malik KHALID AZIZ and others --Respondents

Civil Petition for Special Leave to Appeal No.890 of 1989, decided on

19/09/1989.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated

7-6-1989, passed in Writ Petition No. 1037 of 1989).

Qanun-e-Shahadat (10 of 1984) ---

----Arts.85, 87 & 89 ---Constitution of Pakistan (1973), Art.185(3) ---Petition for

leave to appeal ---Public documents---Proof of---Public documents produced in q

reliance of evidence should be deemed to be genuine unless proved otherwise --

Plan duly sanctioned by Municipal Committee being a public document, there

was no bar in case mode of proof of such document was dispensed with.

Abdul Majid Khan, Advocate Supreme Court and Hamid Aslam Qureshi,

Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 19th September, 1989.

ORDER

S. USMAN ALI SHAH, J. ---Leave to appeal has been sought by the petitioner

against the order of the Lahore High Court, dated 7 -6-1989, passed in Writ

Petition No.1037 of 1989.

The respondents on the basis of re -construction asked the ejectment of the

petitioner. He had' produced the original plan already sanctioned -by the

Municipal Committee. The Counsel for the petitioner wants that this document

relied upon has not been proved and the learned Courts have wrongly dispensed

with the mode of proving this document. We agree with the learned Courts
below that a public document produced in reliance of the evidence shall be

deemed to be genuine unless proved contrary to it. The plan duly sanctioned by

the Municipal Committee is a public document, thus we feel no bar in a case the

mode of proof of such a document is dispensed with. Hence no case is made out

for the grant of leave to appeal. The same is accordingly dismissed.

H.B.T./Z-82/S Petition dismissed.

2- Judgement regarding Proof of Private Documents

(2000 MLD 1653)

2000 M L D 1653

[Lahore]

Before Ch. Ijaz Ahmad, J

KALSOOM AKHTAR---Petitioner

Versus

FAZAL NOOR and others ---Respondents

Civil Revision No. 1202 of 1997, decided on 09/06/1999.

Date of hearing: 9th June, 1999.

JUDGMENT

In their written statements they controverted the allegations leveled in the

plaint. Out of the pleadings of the parties, the trial Court framed the following

issues:--

(i)Whether the suit is not maintainable in its present form? OPD

(ii)Whether the plaintiff has no cause of action and locus standi to file this suit?

OPD

(iii)Whether the suit has been incorrectly valued for the purposes of court -fee

and jurisdiction? If so, what is correct valuation and to what extent? OPD

(iv)Whether the defendants are entitled to special costs under section 35 -A of

C.P.C.? OPD

(v)Whether deceased Mansabdar Khan had made a Will, dated 11 -1-1989 in

favour of the plaintiff to the extent of 1/3rd of the suit land and as such the

order passed by Revenue Department ignoring the Will are illegal, void, without

authority and ineffective upon the rights of the plaintiff? OPP

The Revenue Record does not indicate that the original was ever produced or

retained and instead certified copy of the document existed there. This being so,

the respondent will be required to fulfill the preconditions before the certified
copy of Will can be entertained. I am conscious of the fact that the learned trial

Court did not decide the objection as to admissibility of document Exh.P.1

(will). While the Appellate Court took the petitioner surprise by overruling the

objection and decreed the suit. So the Appellate Court was of the view that the

original document was produced and existed in the Revenue Record. If at this

stage, the document is excluded it will create hardship to the

respondent-plaintiff as the respondent will be denied of opportunity to bring on

record necessary evidence to prove existence of original document or loss of the

same. It is repeatedly observed that the original shall resolve the controversy as

to admissibility of document r at the time when the document was tendered. This

is so, because the party can take - up steps to ensure that the preconditions of

admissibility of document are fulfilled. Since I have observed that the

respondent did not produce to establish existence of original and without

proving it, certified copy of the Will cannot be produced in evidence. Therefore,

no option except to send the case back to the trial Court to allow opportunity to

the respondent to either produce the original or in the alternative to prove the

loss therefore.

In view of what has been discussed above, this revision petition is accepted with

no order as to costs. Resultantly, the impugned judgment of the First Appellate

Court is set aside. The case is remanded to the learned trial Court to decide

afresh in the light of the aforesaid terms. Since the controversy between the

parties is pending adjudication from 1992, therefore, the trial Court is directed
to decide the same as expeditiously as possible. The parties are directed to

appear before the trial Court on 23 -6-1999.

H. B. T. /K-19/L

Revision accepted.

Judgement Regarding Documents Creating Financial

Liability 2004 CLC 1220

2004 C L C 1220

[Peshawar]

Before Talaat Qayum Qureshi, J

MINAJUDDIN arid others ---Petitioners

Versus

Mst. BAKHT MALSHA and others ---Respondents

Civil Revision No.648 of 2002, . decided on 24/05/2004.

(a) Qanun-e-Shahadat (10 of 1984) ---

----Arts. 72, 75, 76, 79 & 85 ---Documentary evidence ---Proof "and admissibility

of document---Document creating liability, had. to be attested by two witnesses

and in order to prove such document attesting witnesses had to be called and if

the document was not proved in accordance with law it had to be excluded from

consideration---When original document was not produced and permission for

leading secondary evidence was not obtained, copy of said document was not

admissible---Contention that sale -deed in question being public document, was

admissible, was repelled, firstly because said document was placed on record

subject to objection by other side secondly original document was not produced;

and thirdly it did not contain the thumb -impression/signature of executant.

Nimatullah Shah v. Farmanullah and another 1980 SCMR 953 and Muhammad

Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395 ref.

(b) Specific Relief Act (I of 1877) ---

----Ss. 9, 42 & 54 ---Suit for possession, declaration and perpetual

injunction---Suit was concurrently decreed by Courts below after framing issues

and recording pro and contra evidence of parties ---Courts below had rightly

appreciated evidence available on record and law applicable to the case ---In

absence of any misreading/non -reading of evidence or any material irregularity

or any jurisdictional error or defect, concurrent findings of Courts below could

not be interfered with in revisional jurisdiction of High Court.

The Courts below have rightly appreciated the evidence available on record and

law applicable to the case in hand.

I have not been able to find out any misreading/non -reading of evidence or any

material irregularity or any jurisdictional error or defect warranting interference

in the concurrent findings of the Courts of competent jurisdiction. Resultantly,

the revision petition is dismissed, with no order as to costs.

H.B.T./136/P Revision petition dismissed.

Judgement Regarding Documents Whose Execution Denied

(1996 MLD 1819 and PLD 1973 SC 160)

MUHAMMAD ASHRAF VS SHAH NOOR KHAN

1996 M L D 1819

[Lahore]

Before Muhammad Jaffar Hashmi, J

MUHAMMAD ASHRAF---Petitioner

Versus

SHAH NOOR KHAN and another ---Respondents

Civil Revision No. 461/D of 1991, decided on 11/01/1996.

(a) Qanun-e-Shahadat (10 of 1984) ---

----Arts. 72 & 117---Execution and contents of documents ---Mode of proof--

Execution of document in question, having been denier plaintiff relying on such

document was required to prove execution and contents of same but he failed to

prove the same ---Document in question, was not confronted to defendant in

cross-examination, nor he was asked even a single word about his

signatures---Author of document was not produced ---No evidence was produced

to the effect as to when and how document in question, was drafted, prepared

and finally typed ---Attesting witnesses were not shown document in question,

during their statement before Court nor they said anything With regard to its

execution---Document in question, being a private document should not have

been received in evidence without proof of signature or and writing of persons

alleged to have signed the same or the author thereof ---Such document could not

be tendered in evidence through bare statement of counsel for the party and got

exhibited---Trial Court's sweeping remark that there was Ito rebuttal of evidence

produced by plaintiff was not warranted for rebuttal was required only in those

matters where evidence regarding particular fact in issue, if not rebutted would

be presumed to have been proved ---Plaintiff, however, had failed to prove

execution of agreement, there was, thus, no question of rebuttal ---Plaintiff was

to succeed on the strength of his own evidence and not on the weakness of

defendant's case ---Assertion as to execution of document being positive

assertion, same was to have been proved by some evidence worthy of

credence---Execution of document in question, was not proved in circumstances.

1974 SC 207) it is held.

While it is undoubtedly correct that an interference drawn from evidence

amounts to a finding of fact yet it is well -settled that the question of the proper

construction of a document is a question of law and not of fact in the present

case the question turns solely on the construction of the document by which the

transaction was evidenced and therefore the High Court was right in regarding

this as a question of law and giving its own interpretation and interpretation

with which we agree."

Suffice it to say that the conclusions drawn by the Courts below as discussed

above are clearly based on misreading and misinterpretation of evidence the oral

and as well-documents. Thus, the impugned judgment and decrees are liable to

be set aside for having been passed illegally and with material irregularity. 1,

therefore feel no hesitation in setting aside the judgments and decrees dated

12-5-1991 and 22-10-1991 passed by Civil Judge, Class -III, Rawalpindi and

Additional District Judge, Rawalpindi respectively and dismiss the suit of the

respondent-plaintiff with costs throughout.

A.A./M-75/L Order accordingly.

Judgement 1988 CLC 2411.

2007 S C M R 1884 [Supreme Court of Pakistan] Present: Javed Iqbal and Hamid

Ali Mirza, JJ Syed SHABBIR HUSSAIN SHAH and others----Petitioners Versus

ASGHAR HUSSAIN SHAH and others----Respondents Civil Petition No.1489 of

2004, decided on 6th December, 2005. (On appeal from the judgment, dated 13-

5-2004 in Civil Revision No.62-D of 1992, passed by the Lahore High Court,

Bahawalpur Bench, Bahawalpur). We do not find any legal or factual infirmity

with the impugned judgment, considering that no misreading or non-reading of

evidence has been pointed out for our interference in the constitutional

jurisdiction of this Court. In view of aforesaid reasons and discussions we find

no case of grant of leave to appeal is made out which is declined and the

petition is dismissed. S.A.K./S-33/SC Leave refused.