Without evidence, even a heinous crime may go unpunished. The role of the investigator is to collect substantial evidence so that the crime can be connected to the criminal. 

Black’s Law Dictionary defines evidence as, “something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact.” ‘Evidence’ has been derived from the Latin word ‘evidence’ or ‘evidere’, which means to show clearly, or to make clear or discover clearly etc.

In the case Bashir Ahmad vs. Muhammad Baksh, the Lahore High Court upon examination of Article 2 (1) (c) of QSO stated that evidence means and includes:

  • Such statements of witnesses which are produced in Court in relation to the case being tried by the Court 
  • Documents which are produced in a court in relation to the case being tried. 

Moreover, “the word “evidence” cannot be restricted merely to the statement of a party or to any one specific witness. It will include the statements of all the witnesses recorded by the Court and the documents produced during trial.” Evidence can take multiple forms, and may include oral evidence, documentary evidence, digital evidence and physical evidence like, hair, glass and weapons that form a basis for forensic analysis. 

Primary and Secondary Evidence

Article 72 of the Qanun-e-Shahadat, 1984 (QSO, 1984), provides that the contents of documents may be proved either by primary or secondary evidence.

Primary evidence 

  • Primary evidence or best evidence is considered of highest evidentiary value.
  • It can include an original document or an oral account of the original evidence, for example, a person who saw the occurrence and gives an account of it. 

Secondary evidence 

  • Secondary evidence, inferior to the primary evidence becomes admissible when the primary or best evidence is lost or inaccessible.
  • Secondary evidence includes certified copies, copies made from the original by mechanical process which ensures the accuracy of the copy; copies compared with such copies; copies made from or compared with the original, counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a document given by some person who has seen it.
  • A document decided by the court to have existed in proper custody for thirty years can also be a secondary evidence, where the decision of whether the custody being proper relies on the facts that it was with a person it was supposed to be with, or the custody has a legitimate origin. The court presumes that the handwriting and any attestation on the document is of the person it purports to.

Best evidence rule

“The best evidence rule”, also known as the “documentary-originals rule;” “original writing rule” and the “original–document rule” requires that the best evidence of which the case in its nature is susceptible should always be presented.  It stipulates that the original document or piece of evidence is superior to copies, and that where the original is available, the copy will not be admissible as evidence in trial. If the original is available, it must therefore be used in evidence rather than submitting a copy or oral rendition. 

The rule further stipulates that to prove the contents of a writing (or a recording or photograph); a party must produce the original writing (or a mechanical, electronic, or other familiar duplicate, such as a photocopy).  Where primary evidence is unavailable, secondary evidence or the testimony of the drafter or a person who read the document may be admitted. 

Under Article 120 of the QSO, 1984, the court may presume that certain facts exit based on the court’s expectation of what might have happened. This usually involves a consideration of the common course of natural events, human nature and conduct, and the domains of public or private businesses. Where the best evidence available to a party is withheld and not produced, such party could attract a legitimate adverse presumption that they have some sinister motive for withholding the primary evidence. 

Classification of evidence

The diagram below illustrates the different categories of evidence and elaborates on the various examples of each. Evidence is categorized into direct and indirect evidence, which is then divided further into various categories. Direct evidence can be obtained from documentary and oral evidence. Documentary evidence can be both primary and secondary and is found in materials such as documents (e.g. emails) SIMs, Call Data Records and other audio and video sources. Oral evidence on the other hand can be taken from the perpetrator himself or from witnesses. Statements taken from the perpetrator are known as confessions, while statements from people who have seen the crime or other connected events are witness testimonies. 

Indirect/circumstantial evidence can take various forms i.e. last seen evidence, opinions of experts, inferences from the conduct of the accused, opportunity or state of things, hearsay and may also include evidence obtained from modern devices. Evidence obtained from modern devices may also include forensic evidence such as DNA samples, bodily fluids, blood stain splatter, glass, ballistics, hair, fibre, fingerprints etc.

Direct and Indirect Evidence

Evidence can have many forms and falls under several categories. Examples include forensic, oral, direct, indirect, circumstantial, physical, material, documentary, exculpatory evidence, etc. This complexity can often be confusing, however, this Module will attempt to clarify some of these categories. The primary categories to understand are direct and indirect evidence. 

Direct Evidence

Direct evidence is evidence, which directly proves a fact, with no additional inference or deduction required. In other words, the existence of this type of evidence proves a fact. Direct evidence could come in many forms, such as through witness testimony (which we could call oral evidence), or by showing a physical object, which proves a fact. 

For example, if the fact to be proven is that A was killed by a 9mm pistol, then we could have a witness, who testifies that he saw B shoot A with a 9mm pistol.

Alternatively, we could have a 9mm bullet recovered from the body of the victim which would prove that it was indeed a 9mm pistol which killed the victim. Both types of evidence would directly prove that a 9mm pistol was used. This is not to say that such evidence cannot be challenged. Witness testimony can be cross-examined and may prove unreliable. Therefore, whether a form of evidence is direct or indirect is separate from whether that evidence is reliable or not. The value of direct or indirect evidence will have to be determined by the judge in the matter. 

Indirect Evidence

Indirect evidence is also known as circumstantial evidence. It is evidence from which the trier of fact (i.e. the judge) can make a logical inference or a reasonable deduction to prove a fact. This type of evidence can come in many forms such as forensic evidence, physical evidence, etc. For example, if the fact to be proven is that A was killed by B, then a witness who testifies that she heard a gunshot and then saw B running out of the room, in which A was killed at the time the murder took place, it would be considered indirect evidence. The witness did not see B shooting A, therefore, it is indirect evidence. Had the witness seen the act with her own eyes, her testimony would be direct evidence. Of course, a logical inference can be made from the witness’ oral evidence that B killed A.

Furthermore, if B’s fingerprints were found on the murder weapon, that would also be considered circumstantial evidence. The fingerprints do not, in themselves, prove that B killed A; but they do raise a strong presumption or logical inference that B, at the very least, held the weapon that killed A. In this scenario forensic fingerprint evidence is the circumstantial evidence.

It should be noted that the many categories of evidence can be used as either direct or indirect/circumstantial evidence. 

Examples of Direct and Indirect Evidence

If the fact to be proven is that A was killed by a 9mm pistol, then we could have a witness who testifies that he saw B shoot A with a 9mm pistol. Alternatively, we could have a 9mm bullet recovered from the body of the victim which would prove that it was indeed a 9mm pistol which killed the victim. 

Both types of evidence would directly prove that a 9mm pistol was used to kill the victim.

For example, if the fact to be proven is that A was killed by B, then a witness who testifies that he heard a gunshot and then saw B running out of the room in which A was killed at the time the murder took place would be indirect evidence.

It is indirect as the witness did not see B shooting A, which would be direct evidence. We can, however, make a logical inference from this oral evidence that B killed A.

Furthermore, if B’s fingerprints were found on the murder weapon, that would also be considered indirect/circumstantial evidence. The fingerprints do not, in themselves, prove that B killed A, but they do raise a strong presumption or logical inference that B, at the very least, held the weapon that killed A. In this scenario forensic fingerprint evidence is the circumstantial evidence.

A significant component of any criminal or terrorist investigation is the process of evidence collection. Collection, preservation and dispatch of legally admissible, and corroborative pieces of evidence, will not only strengthen the prosecutor’s case but also assists the judge in issuing an informed verdict. Furthermore, legally admissible evidence is also procured to connect the crime to the criminal or to arrest the accused responsible for the act of terrorism.

Legal Framework of Evidence Under Domestic Law

Oral Evidence

Sub- Category

Relevant Section or Rule

Confessions
  • 21H of ATA
  • Article 38 of QSO
  • Article 39 of QSO
  • Article 43 of QSO
  • Section 164 of CrPC
Witness Statements that may include statements from  Eye-Witnesses of the incident.
  • Article 38 and 39 of QSO
  • Section 161 of CrPC

Documentary evidence

Sub- Category

Relevant Section or Rule

Digital (Audio/Video)Government of Sindh v. Farad Naseem, 2002 PCr.LJ 1765 (Karachi High Court): 

“The video cassette falls within the purview of ‘document’ for the reason that the definitions of document contained in section 29, P.P.C. and Article 2(b) of Qanoon-e-Shahadat, 1984 leave no scintilla of doubt that video cassette squarely falls within the purview of ‘matter expressed or described upon any substance by means of letters, figures or marks.”

Digital (CDs/ Sims/ Cellular Devices etc.)Article 164 of the QSO

Sikander Ahmad Lashari v. the State

In this case the question arose whether CDs fall under the category of documents. The court answered in affirmative and stated: 

“…Definition of document is much expanded and any substance by means of letters, figures or marks is document including an inscription on a metal plate. It is quite clear from the definition of CD that it is made by polycarbonate with one or more metal layers capable of storing digital information and audio and visual data is recorded as a series of metallic pits enclosed in PVC. So far as USB (Universal Serial Bus) flash drive is concerned, it is often used for the same purposes for which floppy disks or CDs are used, i.e., for storage, data back-up and transfer of computer files. It is immune to electromagnetic interference (unlike floppy disks), and are unharmed by surface scratches (unlike CDs). The data which may be transferred on CD may also be stored/transferred on USB drives so it is only a medium and vehicle of storage that’s why in our view the data stored on CD and USB flash drive is covered in the wide spread definition of document.”

CDR (Call Data Record)
  • Article 164 of QSO
Documents
  • Article 2 (b) of QSO
  • Article 72 of QSO
  • Section 29 of PPC

Circumstantial Evidence

Sub- Category

Relevant Section or Rule

Conduct of the Accused 

(Circumstantial Evidence)

  • Article 21 of QSO
  • Article 27 of QSO
Hearsay Evidence

(Circumstantial Evidence)

  • Article 19 of the QSO
Circumstantial evidence to introduce relevant facts 
  • Article 22 of the QSO
Opportunity or State of things

(Circumstantial Evidence)

  • Article 20 of the QSO
  • Article 2 (d) (i) of QSO
Opinions of Experts 

(Circumstantial Evidence)

  • Article 59 of QSO
  • Article 60 of QSO
  • Section 510 of CrPC
Modern Devices or Techniques

(Circumstantial Evidence)

  • 27-B of the ATA
  • Article 164 of QSO