Secondary Evidence when admissible
Article 74 defines secondary evidence to mean and include:
- Certified copies given under the provisions of QSO 1984
- Copies made from the original by mechanical process.
- Copies made from or prepared with the original.
- Counterparts of documents as against the parties who did not execute them.
- Oral accounts of the contents of a document given by some person who has himself seen it.
Clause 1; Certified Copies:
A certified copy is sufficient secondary evidence of the existence, conditions and contents of a deed but not of the execution. Where the certified copy of a lost public document had not been preserved, other kinds of secondary evidence could be given to prove the contents of a document
Clause 2; Copies made from the mechanical process:
This clause refers to copies from the original, made by mechanical process, which, themselves ensure the accuracy of the copy and copies compared with such copies. In the absence of proof of the accuracy of the photographic copy or its having been compared with, or being a true reproduction of the original Photostat copy cannot pass as secondary evidence under Article 74; nor is the necessary foundation laid for reception of the same as secondary evidence under Article 76.
Clause 3; Copies made from original:
Article 74 (3) prescribes two alternatives for admissibility of a document as a secondary evidence firstly it may be a copy made from the original and secondly it must be a copy compared with the original.
Clause 4; Counterparts of documents:
In case of agreement executed in duplicate it is only when each of the instrument is duly signed by the party to be bound by it, and delivered to the other, that the documents are termed counterparts, and it is only then that each is primary evidence against the party executing it and those in privity with the executing party but secondary evidence for the non executing parties.
The phrase oral account of the contents of document by some person, who has himself seen it” means oral evidence by some person who has seen those contents that is to say, who has read the document.
When Secondary Evidence relating to document may be given:
Secondary evidence may be given of the existence, condition or contents of a document in the following cases;
- 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 I; and when, after the notice mentioned in Article 77 such person does not produce it.
- 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.
- 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, produce it in reasonable time.
- When due to volume or bulk of the original, copies thereof have been made by means of microfilming or other modern devices.
- When the original is of such a nature as not to be easily moveable.
- 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, 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 whole collection.
- 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 a secondary evidence.
Scope and Extent:
According to Article 75 document must be proved by primary evidence except in cases as mentioned under Article 76. In cases where the original document is shown or appears to be in the possession or power of the person against whom the document is sought to be prove or of any person out of reach of or not subject to the process of the court of of nay person legally bound to produce it or where the original has been destroyed or lost or when due to the volume or bulk of the original, copies thereof have been made, or when the original is of such a nature as not to be easily moveable, any secondary evidence of the contents of the document is admissible. To make secondary evidence admissible, it is necessary that loss of original document should be proved and permission to adduce secondary evidence obtained from the Court. Loss of document not proved, secondary evidence even if produced is valueless. Entire proceedings may stand vitiated. 2001 CLC 1796
When the document is in possession of the adversary, who withholds it at the trial, secondary evidence of its contents will be admitted provided that a notice to produce the original document has been duly served, where such notice is requisite. This rule applied equally both in civil and criminal cases; but in either mode of proceeding in order to render the notice available, it must be first shown that the instrument is in the hands or under the control of the party required to produce it. Secondary evidence under this clause may also be adduced, when the original is in the possession or power of any person out of the reach of or not subject to the process of the court or who is legally bound to produce it. Technically speaking every person summoned to produce any document is legally bound to produce it, he must bring it in the court (physical production) although he may have any privilege entitling him to object to its production or admissibility for purpose of evidence.
This clause says that 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, secondary evidence of it may be given. It presupposes that the original document is not inadmissible in evidence. This clause is to be read with Article 35 which declares that oral admissions as to contents of documents are not relevant unless and until party proposing to prove them shows that he is entitled to give secondary evidence under the provisions of Article 76. Oral admissions may be proved in the cases provided for in Article (a) (c) (d). but under the present clause written admissions of the contents of documents are always admissible although the original may be in existence. The secondary evidence under cl. (b) is the written admission of the person against whom it is sought to be proved, or by his representative in interest.
AIR 1949 All 677
Secondary evidence is admissible if it is proved that the original has been destroyed. Where the original has been destroyed or lost and a party has made a diligent search for it and exhausted all the sources and means available for its production, secondary evidence is admissible. The existence and execution of the document of course be proved first. Secondary evidence is not to be admitted mechanically or as a matter of course. Sufficient reason must be shown for non production of original. It has been held in a case reported as 2004 YLR 1113 that under Article 76 (c) of the QSO the proof of lost of document is the condition precedent to permission to adduce secondary evidence. Where the lost of document is not proved, secondary evidence would become valueless.
The contents of writing may be proved by secondary evidence when their production is either physically or legally impossible or highly inconvenient. Thus, inscription on walls and fixed tablets, mural monuments, grave stones, surveyor marks on boundary trees, notices warning trespassers affixed on boards, and the like, may be proved by secondary evidence, since they cannot conveniently, if at all, be produced in Court. For instance, on one occasion a man was convicted of writing a libel on the wall of Liverpool gaol on mere proof of his handwriting. (Mortimer v. M’Callan).
Clause F and G:
In the cases referred to in these clauses, secondary evidence is admissible even though the original is still in existence and available. The removal of public documents is subject to great inconvenience and risk and secondary evidence is always allowed when the original is a public document within the meaning of Article 85 or a document of which a certified copy is permitted by the Order or by any other law for the time being in force.
A copy of a document coming out of a public office and certified by the officer in charge of that department to be a true copy, is admissible in evidence. Such certified copies of sufficient proof thereof, subject to any further inquiry if they are disputed. 1992 SCMR 1362.
In case of a public document within the meaning of Article 85, the only kind of secondary evidence that can be given under Article 76 (f) is by a certified copy of that document and no other kind of secondary evidence.
When the original consists of ponderous books or numerous papers and accounts involving great inconveniences of production and loss of public time and when the general result is to be proved, secondary evidence of the general result may be given by one who has scrutinised the documents. The past paragraph says that the person must be skilled in the examination of such documents, and the competence of a witness is a question for the judge. The witness is to go through the books before he comes to the box to state the general result of his scrutiny. He can of course, be cross examined and where practicable, it is desirable that the books should be in court so that the opposite side or the court may inspect them, if need be.