Application of Modern Evidence in Judicial System of Pakistan

APPLICATION OF MODERN EVIDENCE APPLICATION OF MODERN EVIDENCE IN JUDICIAL SYSTEM OF PAKISTAN By Aliya Saeed, Advocate, Karachi Our Judicial System is followed by three facets viz. presentation, evidence and argument. Of them, an evidence part is crucial from its inception inasmuch as a truth comes on scenario from all its surroundings. Evidence is consisting of oral and documentary phases much less the documentary evidence has an overriding effect upon the oral evidence. In the legal parlance where there is inconsistency between oral and documentary evidence, the later shall prevail. A reference is sought from the proposition of Article 103 of Qanun-e-Shahadat, 1984 (here-in-after referred to as Qanun-e-Shahadat, 1984 for brevity sake) whereby in case of documentary or oral agreement, the oral agreement is excluded. (1) Workability of Law of Evidence under Court procedure Before the enactment of Qanun-e-Shahadat, 1984, the prevailing law on evidence in our law Courts was with reference to Indian Evidence Act. The process of oral and documentary evidence was applicable on civil and criminal trials with a contemplation that the civil suit is to be proved either in the wake of recorded admissions of the parties or the documentary evidence produced thereunder. Again on that document, series of the provisions from the Evidence Act were invoked to prove the legality and authenticity of the document. More so, a credibility of the witness was also held to be the essential element being a pre-requisite to prove the document in affirmation from its authenticity. As against that the process of evidence in a criminal case was distinguishable being without reference of any document. In criminal cases a previous conduct was found relevant both for the witness as well as accused; whereas, in civil suits character to prove conduct imputed was held irrelevant. Number of the citations and authorities of the superior Courts are holding the field inter alia believing the credibility of witness in a criminal case and documentary reference in a civil suit. A judicial system relying upon oral and documentary evidence works in old dimension; whereby a proof lacks and does not focus on the target. Once again we divert on a document which is found insufficient being barred by legal implications. Patently, meritorious cases resulted in futility for want of proof. In fact there are point blank evidence presentation techniques that are being used in our judicial system to establish the case on merits. The instances are: "Getting documents or photographs presented and exhibited; reference of original testimony right from the transcript and also referring or presenting important documents and images for ready reference; and such practice is prevalent from the years together where stereo evidence(s) delivered either in affirmative or negative." (2) Modern evidence under Qanun-e-Shahadat, 1984 An evidence collected through modern mechanism, no doubt, a globally recognized system has now become in the Western Countries as "increasingly antiquated" as with induction of modern technology; a new generation of legal fraternity follow the latest and greatest technology, which the modern world has introduced with a brilliant follow up. Majority is of the opinion that the presentation of evidence is more useful when modern technique is used therein. Before enactment of Qanun-e-Shahadat, 1984, there was no reference of modern and scientific technology/evidence to explore the truth reaching to an appropriate conclusion of the trial. As an advanced strategy to work in a proper dimension in order to discover the true scenario, and also meeting with the global challenges under foreign litigation, some new Articles were added in the Qanun-e-Shahadat, 1984 and also under the Code of Civil Procedure to get the prompt results; not only in the recourse of Court trials but also under the inquiry and investigational steps conducted by the Law Enforcing Elements. Consequently, Article 164 was inserted in the Qanun-e-Shahadat, 1984 with a following mention; "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". An emphasis of this enacted provision mainly hinges around the terminology of "modern devices or techniques". In furtherance of the afore-said enactment under Qanun-e-Shahadat, 1984 the process of execution of service upon the litigant public within country or abroad was also inserted in the Code of Civil Procedure vide Order V, rule 20(b) by an amendment in the year 1994 as under. "Any electronic device of communication which may include telegram, phonogram, telex, fax, radio and television; or -------------------------------------------------------------- Frequently the execution of service was efficiently carried out; but legal and procedural hurdles had created as the service made through electronic mode was found insufficient to be believed under the Court procedure; as it was found un-attested/un-signed by its maker creating doubt of execution. Although service through electronic mode was held proved irrespectively it was un-signed as per Electronic Transactions Ordinance, yet some legal impediments were to be filled up in consonance with law, vide enactment of 2002, the Electronic Transactions Ordinance, was made part of Qanun-e-Shahadat, 1984 under enactment of Article 2(e) in the following manner. "the expression, "automated", "electronic information system", "electronic document", "electronic signature", "advanced electronic signature" and "security procedure" shall bear the meanings given in the Electronic Transactions Ordinance, 2002". After said enactment, an execution through electronic mode irrespectively being un-signed was held by the Court duly executed from all its applicable implications. (3) Modern evidence under foreign laws As per Article 59 of Qanun-e-Shahadat, 1984, when the Court has to form an opinion upon any point of foreign law or of Science, or art or as to identity of hand writing or finger impression, the opinion upon that point of persons specially skilled in such foregoing law, science or art, or in question as to identity or hard writing or finger impressions or [as to furnishing, specifications programming or operation of information systems, are relevant facts.] Note: An ibid bracketed paragraph was inserted by Electronic Transactions Ordinance, 2002; as such is to be read in addition to Article 2(e) of Qanun-e-Shahadat, 1984. The Court of law believes in a fact that some of the cases where expert evidence needed cannot be decided without assistance of the experts. In other words, the experts' opinion would be rather a judgment of the Court in its entirety. Even otherwise the rules are relaxed and the experts' evidence is declared as a relevant fact. Under Article 59, we can know about DNA testing, finger print analysis, luminal tests for blood evidence, surveillance footage, cell tower data and polygraphic tests as a source of modern evidence being globally accepted. Upon receipt of modern evidence followed by its reliance by our law Courts, a reference is gathered from the case law reported in PLD 2010 FSC 215, which is reproduced herein below out of its relevant extract. "Under Article 164 of Qanun-e-Shahadat, 1984 Court might allow to be produced any evidence available because of modern devices or techniques. Holy Quran and Sunnah did not forbid employing scientific or analytical methods in discovering the truth. On the contrary the discovery and investigation had been strongly recommended by the Holy Quran and Sunnah. Courts in matters relating to Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had all the powers to permit receptions of evidence including the resort of DNA test, if demanded by occasion". It is now held that tape recorded evidence is a well accepted form of "real evidence" which a party may produce to prove a "fact in issue". (4) Modern evidence in our justice system After enactment of Article 164, followed by insertion of Article 2(e) in the definition clause of Qanun-e-Shahadat in the year 2002, there is a rapid change at the marked level in discovery of modern evidence in our justice system whereby conclusive results have emanated on the scenario. Age of the trial has been reduced and the experts' opinions have superseded the adjective law in getting the rules relaxed. Evidence procured through modern devices as mobile phone data, tape recorder, video film, video cassettes, reporting through fax, email, polygraphic test, trace bullets and DNA tests have been made applicable in our justice system. Even the Courts of law have allowed the video recording during investigations ultimately holding it admissible during the trial. Indisputably, there is an expansion of the modern evidence at the culminated level covering all the necessary implications to follow it in the degree of credence irrespectively the specialist of evidence has not been examined as a Court witness. In every case, if there is any expert opinion, that opinion attaches finality as and when that specialist/opinion-giver is examined before the Court or his documentary evidence produced thereunder has been got exhibited. Nevertheless, the requirement of law is vanished away under the application of S. 510 of the Code of Criminal Procedure, whereby the report of expert can be considered by the Court without calling its writer as a witness. The application of modern evidence, no doubt, has changed the law and relaxed the rules so that the Court decide promptly without waiting its corroboration from the relevant quarters. To make equation of law on the global scenario was found felt in the light of growth in the world wide crimes. It is further coupled with the fact that inter-netting global connectivity has narrowed down the World wide requirements to be curtailed and bring them to the particular point upon which the Court evidence or the investigational formalities are efficiently followed in a result-oriented phenomenon. A world wide challenge under the forensic methods on expertise has mostly been detected through the processes of finger prints, dental impressions, striations on bullets hair and fiber comparisons, voice spectrograms, neutron-activation analysis, blood grouping, serum protein and enzymes typing as well as DNA profiling, enabling matching samples with proper accuracy which mainly provide assistance to make the required source authentic. It is also a question mark as to what an extent all that is used and made applicable in our justice system? (5) Conclusion It is still an issue under controversy as to what an extent our judicial system has followed these resources which are now demand of the modern evidence system. In the world wide scenario said evidence collected through forensic methods has evidentiary value and Court attaches weight to such evidence without following other evidence of any sort. Frequently, these scientific methods under modern evidence have not only shortened the trial to its age but enabled the Court to decide alone on that evidence without recourse of any other source/element of evidence. A technology in criminal cases, collecting evidence through scientific methods has been invented globally which is adopted in its full application that is "brain imaging". This technique uses functional magnetic resonance imaging (FMRI) to scan an individual's brain and detect changes in the blood flow that indicate as to which areas of the brain are active? This process, in-fact, starts in the investigational resource; but produces successful result in the trial using it as best piece of evidence. Scientists assert that it is rather a promising technique for determining the suspect's guilt, as it can detect when a person is found in accuracy of 70 to 90 percent. We can also take that evidence in appropriate calculation as evidence collected by scientific mechanism under Article 59 of Qanun-e-Shahadat, 1984; whereby we must apprehend that series of the provisions from Qanun-e-Shahadat relating to confessions and admissions during investigational recourses may not found futile as redundant?