Modes of prove of Public and Private documents
Modes of prove of Public and Private documents
Law of evidence divides documents into two categories:-
- Public document
- Private document
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.
Art. 85 Qanun-e-Shahadat Order without defining the term public document declares the following to be public documents.
- Documents forming the Acts or records of the Acts
- Of the Sovereign Authority
- Official bodies and Tribunals
- Of public officers, legislative, judicial and executive, of any part of Pakistan, or of a foreign country.
- Public records kept in Pakistan of private documents;
- Documents forming part of Judicial proceedings;
- Documents required to be maintained by public servant under the law;
- Registered documents the execution whereof is not disputed; and
- Certificates deposited in a repository pursuant to the provisions of the Electronic Transaction Ordinance, 2002.
All other documents which do not fall within the domain specified above are private documents.
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.
Documents forming Acts or records of the Acts:
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.
Documents forming the acts or Records of the acts of the Sovereign Authority:
Under this head comes, Acts of Parliaments, Judgment and acts of Courts both of voluntary and contentious jurisdiction, proclamations, public record and the like.
Record of judicial officers or tribunals:
Certified copies produced in a case form part of record of judicial proceedings and are public documents as mentioned in Art. 85 thus admissible in evidence.
Record prepared by public Servant:
A document cannot be said to be a public document within the meaning of Art. 85 unless it has been shown to have been prepared by public servant in discharge of his official duties. The mere fact that it is kept in a public office does not lead to an inference that it is a public document.
Public record of private documents:
Copies of private documents of which a record is kept by a public officer falls within the purview of Sub section 2 of Art 85, and, as such, can be produced under Article 88 in proof of their contents.
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.
Article 86 provides that “all other documents are private documents”.
All other documents besides those mentioned in Article 85 are private documents. Private writings may be of various kinds, e.g contracts—unilateral or bilateral, memorandum, power of attorney, letter, any deed.
Mode of Proof of Public Document:
Article 87 enacts that the custodian of a public document which any person has a right to inspect, shall give a certified copy on demand. Article 88 says that such certified copies may be produced in a proof of the contents of the public document or their parts. The certified copies are by Statutes deemed to be original. AIR 1934 PC 157
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. 1991 SCMR 1362)
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. 2000 MLD 1653
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. 1988 CLC 2411.
Proof of other document:
Article 89 of QSO prescribes special modes of proving the contents of various kinds of official document The mode of proof of public document in this Article is only permissive, and other modes of proof are not shut out.
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.
Mode of proof of private document:
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. 2000 MLD 1653
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. 1996 CLC 79
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. 2004 CLC 1220
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. 1996 MLD 1819 and PLD 1973 SC 160