Evidence

SALMOND: "Evidence is any facts which possess probative force".

Facts to be proved (also known as facts in issue) are called principal facts and facts that are relied
upon to prove those principal facts are called evidential facts. Therefore, evidential facts are
evidence of principal facts as the evidential facts tend to create a reasonable belief in the
happening/existence of principal facts. The quality/force by which evidential facts has such
effect is known as "probative force".
Qanoon-e-Shahadat Order (1984) (formerly Evidence Act) defines and explains mode and
method of adducing and recording evidence. In its Article 2, evidence is defined as "evidence
means and includes all statements which the court permits or requires to be made before it by
witnesses in relation to matters of fact under inquiry and documents produced for the inspection
of the court.
Theorists and Evidence of Natural Law

Thomas Aquinas and other proponents of natural law theory see evidence as a tool for
determining morality and objective truth. For them, evidence is essential to guaranteeing justice
in accordance with these universal norms, and the legislation must be in line with higher moral
standards. According to Aquinas, a legal rule—including those pertaining to evidence—is only
legitimate if it advances the interests of justice. Accordingly, a rule of evidence is
unconstitutional under natural law if it prevents the pursuit of truth or results in injustice.
According to this viewpoint, evidence is a moral tool that is necessary to attain fair results rather
than only being a procedural tool.

Evidence and Legal Positivists

Jeremy Bentham and Hans Kelsen are examples of legal positivists that emphasize the
importance of evidence in formal legal proceedings rather than morality. In order to guarantee
uniformity and effectiveness in the judicial system, Bentham promoted standardized norms of
proof. He questioned conventional wisdom for impeding the pursuit of truth, such as the
rejection of hearsay. More extreme, Kelsen maintained that the judicial system's acceptance of
the evidence is the only factor that determines its legitimacy. According to his "pure theory of
law," evidence is what the law says it is; legal authority, not moral worth, is what gives it
credibility. Therefore, positivists separate moral judgment from the definition of evidence and
describe it in terms of a set of norms.

Evidence and Legal Realists

Jerome Frank and other legal realists provide a pragmatic and psychological perspective on
evidence. They contend that rather than following strict legal guidelines, judges' and jurors'
perceptions and interpretations of the evidence affect it. Frank underlined that gathering facts is
often unpredictable and impacted by context, emotions, and personal prejudices. Realists contend
that the way evidence is interpreted by human decision-makers is more important to its efficacy
than its formal admissibility. According to this perspective, evidence is changeable and
influenced by the circumstances of courtroom conduct and judicial interpretation rather than
being objective or fixed.

Kinds of Evidence
Judicial and Extra Judicial Evidence
Judicial evidence comprises those facts that are directly brought to the personal knowledge/
cognizance of the court. Hence testimony of witnesses before court, documents produces before
the court, things (articles) examined directly by the court and all other things directly brought to
the notice of the court are known as judicial evidence.
Extra judicial evidence on the other hand consists of those facts that are not directly brought to
the notice (personal knowledge) of the court but are only inferred by the court in order to draw a
link between judicial evidence and other facts of the case.
Therefore, testimony of a witness before police or anyone other than magistrate(court), copy of
the documents or testimony of a witness who has somewhere seen the document are all extra
judicial evidences.
Primary and Secondary Evidence
Primary evidence is the immediate/original evidence of principal fact. In case of oral evidence,
primary evidence would consist of evidence of eye witness or one who has heard or felt the
particular fact himself. In case of documentary evidence, the primary evidence includes
production of original documents before the court.
Secondary evidence is the substitute of the primary evidence which is only allowed to be
produced when primary evidence is unavailable or beyond parties reach to produce. Thus
secondary evidence stands on a lower pedestal than primary evidence. Certified copies,
compared copies, mechanically produced copies are all examples of secondary documentary
evidence while oral testimony of a person who has seen an original document somewhere is
example of secondary oral evidence.
Oral, Documentary and Material Evidence
Oral evidence means testimony of a witness in court by spoken words while documentary
evidence is the production of documentary fact in the court to prove a particular fact.
Material evidence is the production of a material thing in the court other than a document like the
case property which includes the weapon used in crime, recovered articles, clothes or any other
material.
Original and Hearsay Evidence
Original evidence is the oral testimony of a witness regarding what he has himself seen or heard
or felt through his
own senses.
Hearsay evidence is the evidence of a person/witness regarding what was told to him by
someone else and he himself had not seen or heard or felt the principal fact but such fact was
narrated to him.
Apart from very few exceptions, the law treats hearsay evidence as inadmissible.
Direct and Circumstantial! Evidence
Direct evidence is the evidence of a thing or a fact by production of that thing before court or
testimony of a witness who has seen such act taking place. In certain circumstances, principal
things are not available or recovered and even such eye witnesses (who have himself seen the
act) are unavailable, in such circumstances, the court has no other option but to resort to some
other evidence in order to reach conclusive proof.
Circumstantial evidence is evidence of circumstances other than direct evidence in order to prove
a fact. Circumstantial evidence thus is less potent than direct evidence.
In case of a crime, where there is no eye witness, then foot prints of accused, his conduct before
and after the crime are all examples of circumstantial evidence.
While direct evidence is evidence of any witness who has seen the crime taking place and/or
production of crime weapon and recovery directly from accused.
Proof
It is the effect of evidence or rather effect of satisfactory/ conclusive evidence. A fact is proved
when the court is satisfied as to its truth and the means and method by which that result is
produced is known as proof.
Proof is the establishment of fact by legal means to the satisfaction of court. Proof is result of
evidence while evidence is the means/method/ mode of proof.

Method of Proof
Court allows only such evidence to be produced and believed which has been produced
according to the provisions of law. Those facts that have no evidentiary value or ones that have
been extracted through illegal means are excluded from evidence.
Any person (even an accused). cannot be compelled to give evidence. Hence first and foremost
condition of admissible evidence is the requirement that evidence is given without any
compulsion, fear, inducement, threat or coercion and that it should be voluntary and free.
Similarly, evidence is only admissible if it's recorded in presence of a judge (magistrate). Any
statement even a confession before police or any other person is inadmissible according to
Articles 38-39 of Qanoon-e-Shahadat Order 1984.
Even officials cannot be compelled to disclose any information or communication that took place
during their official or professional duties. Police cannot be compelled to disclose names and
place of their spies and informers, Advocates cannot be compelled to disclose communication
with their clients, public officers/servants cannot be compelled to disclose information that is
part of unpublished record.
Conclusive Presumptions or Proof
When law regards certain facts to be conclusive proof of another than when one fact is proved
the court would regard the other as proved and would not allow any evidence to contradict it or
disapprove it. Here the probative force is so strong that they are not allowed to be contradicted
by any other fact howsoever strong.
For example, if a child is born during the wedlock of husband and wife or within 280 days of its
dissolution, provided the mother has remained unmarried and non-access is proved, hence it is a
conclusive proof regarding the legitimacy and parentage of child.
Similarly, under section 82 of Pakistan Penal Code, a child under seven years of age is presumed
to be incapable of mens rea and this is a conclusive proof that child is not guilty of the offence.
Rebuttable or Conditional Presumption
In this case, the law regards certain facts to be admitted as long as they are not disapproved or
contradicted or rebutted. Here the probative force not very strong and the law permit evidence to
rebut and contradict the principal fact.
For example, a accused in criminal proceedings is presumed to be innocent until proven
otherwise. Hence law though presumes accused as innocent but nevertheless allows other
evidence to be produced in order to contradict and disapprove the principal fact. Once evidence
is produced and admitted than the principal fact of innocence is rebutted.
Similarly, the law presumes a man as dead if he was not seen or heard and his whereabouts
unknown for seven years. Such presumption again can be rebutted by producing contrary
evidence to disapprove it.
Exclusive Evidence
Law requires some evidence to be produced in pre-defined specific manner and if such evidence
is not available than the law would not consider any other evidence as admissible howsoever
strong.
Certain documents require compulsory registration and in case of absence of registration than the
law would not consider those documents as valid even though all other requirements are
available and other credible evidence available. Gifts, will, sales and mortgages are some forms
of documents that are only regarded as proved by law when registered and one attesting witness
gives testimony to that effect provided he is alive.