TITLE: 164.

Production of evidence that has be

SUBMITTEDTO MR: YOUSUF MOULVI

Prepared by;

Name: Mohammad Waseem

Batch: 45

CMS ID: 464-2021

Course: LAW OF EVIDENCE -ii

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TABLE OF CONTENTS

1. Abstract
2. Introduction To Article 164 Of The Qanuneshahadat Order, 1984
 Overview Of Article 164 And Its Role In Admitting Modern Evidence

3. History Of Using Modern Devices In Court Proceedings

 Pakistan’s Adoption Of Modern Devices In Legal Framework

4. Types Of Evidence From Modern Devices

 Email Evidence
 Legal Basis And Forensic Retrieval Of Email Data
 Challenges In Identifying The Sender
 Polygraphic (Lie Detector) Test
 Reliability And Applications In Court
 Tracer Bullets
 Characteristics And Role In Investigations
 Reports From Print And Electronic Media

5. Scientific And Forensic Evidence

 DNA Testing
 Role In Establishing Paternity And Criminal Identity
 Requirements For Consent And Crossexamination
 Admissibility And Role Of DNA Evidence
 Supreme Court’s Perspective On DNA As "Gold Standard"
 Importance Of Documentation And Forensic Integrity
 DVD And Video Recordings
 Verification Requirements Under Article 73 Of Qanuneshahadat

6. Role Of Forensic Science In Modern Legal Proceedings

 Importance Of Forensic Science
 Courts As Gatekeepers Of Scientific Evidence
 Article 164’s Facilitation Of Expert Evidence
 Recommendations For Admissibility Of Forensic Science Reports
 Supreme Court’s Recommendation To Update Section 510, Cr.P.C.

7. Challenges Of Using Modern Devices As Evidence

 Risks Of Tampering, Editing, And Duplication
 Crossexamination And Verification Standards In Pakistan

8. Legislative Framework And Legal Amendments In Pakistan

 Expansion Of Admissible Digital Evidence Under Qanuneshahadat
 Impact Of Electronic Transactions Ordinance, 2002

9. Role Of The National Response Centre For Cyber Crime (NR3C)

 Ensuring Security And Authenticity Of Digital Evidence
 NR3C’s Role In Cybersecurity And Digital Forensics

10. Judicial Recommendations And Requirements For Digital Evidence

 Supreme Court Guidelines On Admissibility Of Digital Records

11. Limitations And Societal Barriers In Pakistan

 Socioeconomic Barriers To Accessing Digital Evidence
 Need For Public Awareness And Accessibility Improvements

13. Conclusion
14. References/ Bibliography

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Abstract

This assignment explores the role and implications of Article 164 of the Qanun-e-Shahadat
Order, 1984, which allows Pakistani courts to admit evidence made available through modern
devices and techniques. With rapid advancements in technology, the legal landscape has evolved
to accommodate new types of digital and forensic evidence, such as emails, digital records, DNA
testing, CCTV footage, and polygraph tests. The judiciary’s ability to incorporate these modern
forms of evidence has expanded the potential for fair and accurate judgments in both civil and
criminal cases. This shift aligns with global trends, as countries worldwide increasingly
recognize electronic records, digital signatures, and forensic science as credible forms of
evidence. The historical evolution of digital evidence in court proceedings underscores a gradual
acceptance of modern devices, beginning in the 19th century with telegraph messages and
progressing through the widespread use of fax machines, emails, and electronic signatures.
Legislative frameworks such as the ESIGN Act and UETA in the United States laid the
groundwork for international standards, influencing Pakistan’s adoption of similar practices
through amendments to the Qanun-e-Shahadat and the Electronic Transactions Ordinance, 2002.
These legal instruments grant legitimacy to digital records and secure electronic communication,
thus bridging traditional evidentiary laws with contemporary technological capabilities.

In Pakistan, the establishment of the National Response Centre for Cyber Crime (NR3C) under
the Federal Investigation Agency (FIA) demonstrates the government’s commitment to ensuring
the integrity and reliability of digital evidence. This center conducts forensic analyses, supports
cybersecurity, and prevents tampering, which is essential given the risks of editing, duplication,
and other forms of digital manipulation. Furthermore, forensic science has become indispensable
in Pakistani courts, particularly in cases involving DNA testing, audio-visual recordings, and
computer-related data, all of which require rigorous verification to uphold evidentiary standards.
Despite these advancements, challenges persist, especially in rural and underdeveloped regions
where limited access to technology hinders full participation in the legal process. Judicial
guidelines emphasize the need for forensic verification and cross-examination of digital evidence
to maintain its credibility. Moving forward, Pakistan’s legal system continues to adapt to a
technologically evolving society, striving to balance the benefits of scientific progress with the
need for reliable, untampered evidence in judicial proceedings. This assignment highlights
Article 164 as a gateway for incorporating modern technology into Pakistan’s judiciary,
reflecting a commitment to accuracy, fairness, and justice in a digital age.

Keywords: Article 164 Qanun e Shahadat Order 1984, Modern devices, Evidence.

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Production of Evidence That Has Become Available Because of Modern

Devices (Article 164)

1. Introduction to Article 164 of the QanuneShahadat Order, 1984

Article 164 allows Pakistani courts to admit any evidence made accessible through modern
devices and techniques. This provision ensures that courts can leverage technological advances
to aid in discovering the truth, thus expanding the scope of admissible evidence to include
innovative technologies like computer forensics, digital records, and other modern tools.

HISTORY
The history of using modern devices in court proceedings is a gradual evolution influenced by
technological advancements and the legal system’s need for reliable and efficient methods of
presenting evidence. This journey began in the 19th century, particularly during the American
Civil War, when telegraphic messages transmitted in Morse code were first used as official,
binding communications. These messages became the earliest form of electronic evidence, as
exemplified by an 1869 case in New Hampshire that recognized telegraph messages as
enforceable agreements. As communication technology advanced, the legal system began to
embrace other electronic formats, notably fax machines in the 1980s. Faxed documents,
including copies with digital signatures, were quickly accepted in legal proceedings as long as
they could be authenticated. This innovation allowed for the swift exchange of timesensitive
contracts and other important records, setting the stage for the acceptance of further digital
evidence.

In the late 1990s, email and digital signatures became widely used, marking a new phase in the
use of modern devices in court. Legislatures and courts recognized emails as valuable evidence,
especially in cases involving contractual disputes and fraud. Around this time, the United States
passed two landmark pieces of legislation: the ESIGN Act and the Uniform Electronic
Transactions Act (UETA), which formally defined and granted legal weight to electronic records
and signatures. The UETA and ESIGN Act established a robust framework for recognizing
electronic contracts and records as legally binding. This legal foundation encouraged other
countries to adopt similar practices, and by 1998, the United States and Ireland signed an
agreement promoting electronic commerce, which officially recognized electronic signatures and
set international precedents for the legitimacy of electronic records in court.

As countries around the world modernized their legal standards to include electronic evidence,
Pakistan also moved towards accepting digital records in legal proceedings. The
QanuneShahadat Order of 1984, Pakistan’s foundational evidentiary law, was revised to
incorporate modern devices through Articles 59 and 164, which allowed for the admission of
digital data, forensic reports, and DNA evidence in court. The Electronic Transactions Ordinance
of 2002 further expanded these provisions, granting legal recognition to electronic documents
and digital signatures in Pakistan’s legal framework. This ordinance allowed the courts to
consider digital records in both civil and criminal matters, bringing Pakistani evidentiary law
closer to international standards.

With the rise of cybercrime and digital technology in the early 2000s, Pakistani courts began
relying more heavily on forensic support to verify digital evidence. The Federal Investigation
Agency (FIA) established the National Response Centre for Cyber Crime (NR3C) to handle
cybersecurity audits, digital forensics, and technical investigations, ensuring that evidence
presented in court was authentic and untampered. This center provided technical expertise in
handling digital evidence, reinforcing the integrity of digital proof presented in legal cases.

Recent developments in Pakistan reflect the judiciary's commitment to upholding the authenticity
and reliability of digital evidence. The Supreme Court has provided guidelines for admitting
digital records, particularly emphasizing the need for crossexamination and forensic verification
to confirm the originality of video or audio recordings, email communications, and other digital
formats. Additionally, DNA testing has become a cornerstone in criminal cases involving
paternity disputes, assault, and sexual violence, while CCTV footage is increasingly relied upon
in investigations. These technological tools have allowed the judiciary to handle complex cases
with greater accuracy and fairness. Despite these advancements, there remains a digital gap in
rural and underdeveloped areas of Pakistan, where limited access to technology affects the legal

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process. Efforts are ongoing to improve accessibility to digital evidence, aiming to ensure that all
citizens, regardless of their socioeconomic status, can participate in a technologically
modernized judicial system. This evolution of evidence—from Morse code to DNA analysis and
CCTV footage—demonstrates the legal system's commitment to incorporating scientific progress
while maintaining the credibility and integrity of judicial proceedings.

2. Types of Evidence from Modern Devices

2.1 Email Evidence

Email can be a crucial form of evidence in legal proceedings. If one party knows the email
address of another, they can send messages without needing the recipient’s password.
Forensically, email data can be retrieved from the sending computer and traced through PTCL or
similar telecom authorities to identify the device and account used. However, pinpointing the
exact sender can be challenging without police intervention.

Legal Reference: [2007 [Link].L.J. 675]

2.2 Polygraphic (Lie Detector) Test

The polygraph test originated in the United States but is generally regarded as unreliable,
particularly in criminal cases. This test is not commonly administered to individuals accused of
crimes; instead, it is used to evaluate the trustworthiness of employees in financial sectors.
Courts generally find polygraphic evidence inadequate for prosecution purposes.

Legal Reference: [2008 MLD 1385]

2.3 Tracer Bullets

Tracer bullets, because of their unique burning quality, create a distinct pattern of blackening or
scarring around a wound. This evidence can be helpful in identifying the origin of gunshot
wounds. The impact marks left by tracer bullets can serve as identifying indicators in
investigations.

Legal Reference: [2009 YLR 1849]

2.4 Reports from Print and Electronic Media

Reports from electronic and print media that pertain to a relevant period may be admissible in
court. However, a single newspaper article, or even multiple articles, may not suffice as the sole
basis for forming a judicial opinion.

Legal Reference: [PLD 2010 S.C. 265]

3. Scientific and Forensic Evidence

3.1 DNA Testing

DNA testing has become a highly reliable method to establish paternity and to identify
perpetrators in cases such as sexual assault. DNA reports, when presented in a trial, may be
accepted as evidence, provided the forensic expert who conducted the test is available for
crossexamination. Courts view DNA evidence as one of the best methods to ascertain the truth in
cases involving serious allegations. While courts can order DNA testing, they must obtain
consent from the individual, as compelling someone to undergo testing without consent could
infringe upon personal liberty.

Legal References: [PLD 2010 FSC 215, PLD 2018 Lah 758, PLD 2021 S.C. 362]

3.2 Admissibility and Role of DNA Evidence

The Supreme Court has recognized DNA as a “gold standard” in forensic science, given its
accuracy and reliability. DNA testing can strongly corroborate evidence in criminal cases by
conclusively identifying the individual involved. The admissibility of DNA reports depends

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significantly on the proper documentation and preservation of samples. The skill and integrity of
the investigative officers play a crucial role, as mishandling can render DNA evidence
inadmissible.

Legal References: [PLD 2021 S.C. 362, 2013 SCMR 203, PLD 2020 FSC 215]

3.3 Evidence of DVD and Video Recordings

Video and DVD recordings, when submitted in a trial, can serve as valid evidence. Courts may
consider such recordings if they adhere to proper evidentiary standards.

Legal References: [2015 P. Cr.L.J. 628, 2012 SCMR 1156]

3.4 SMS as Evidence

SMS (text messages) are legally accepted worldwide as a form of communication. However, for
SMS to serve as valid evidence, verification from a witness present during the exchange or
reception of the SMS is generally required. This aligns with Article 73 of the QanuneShahadat,
1984, which emphasizes adherence to established evidentiary procedures.

Legal Reference: [PLD 2015 Lah. 231]

4. Role of Forensic Science in Modern Legal Proceedings

4.1 Importance of Forensic Science

As society becomes increasingly dependent on technology, the courts must remain open to
advancements in forensic science and develop an understanding of scientific principles and
methods. Judges, especially trial judges, are regarded as "gatekeepers" of scientific evidence,
ensuring that only credible and reliable techniques are allowed in the courtroom. Article 164 of
the QanuneShahadat Order, 1984, facilitates the admission of such evidence by permitting courts
to accept scientifically backed opinions from expert witnesses, thus aiding in the pursuit of truth.

4.2 Recommendations for Admissibility of Forensic Science Reports

The Supreme Court has suggested amending Section 510 of the Criminal Procedure Code to
recognize reports from all government forensic scientists as admissible, expediting the judicial
process by allowing more types of expert evidence without necessitating witness testimony. The
current version of Section 510 only allows certain government expert reports, which the Supreme
Court views as outdated and in need of revision.

Legal References: [PLD 2021 S.C. 362, 2016 SCMR 274]

4.3 DNA Evidence to Establish Guilt or Innocence

The Supreme Court recognizes DNA technology as an essential tool in criminal justice, with the
potential to convict offenders or clear suspects. It is especially relevant in cases involving serious
crimes, such as rape or murder, where conclusive evidence from DNA analysis can significantly
aid the judicial process. DNA testing can assist in eliminating innocent individuals as suspects
and ensure the prosecution of guilty parties.

Legal Reference: [PLD 2021 S.C. 362]

5. Modern Evidence in Family Court Proceedings

Flexibility in Procedure: Family courts have the authority to adopt civil procedures and are not
strictly bound by the Civil Procedure Code, 1908. They are permitted to consider evidence from
modern devices under Article 164, as long as it aligns with the principles of justice and
expediency.
Acceptance of Evidence: Family courts may admit evidence from modern sources without the
rigid requirements applied in criminal courts. This flexible approach allows courts to focus on
fair outcomes without being encumbered by procedural limitations.

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Legal Reference: [PLD 2017 Lah 698]

1. Challenges of Using Modern Devices as Evidence

o Modern devices present new evidentiary challenges, such as the risk of tampering
through editing, cropping, and duplication, which can undermine the credibility of
digital evidence. Pakistan’s judiciary is particularly cautious with digital proof,
emphasizing the need for crossexamination and verification to prevent the
admission of tampered evidence.
2. Legislative Framework and Legal Amendments in Pakistan
o The QanuneShahadat Order, 1984, along with the Electronic Transactions
Ordinance, 2002, expanded the admissibility of electronic documents and
signatures, aligning Pakistan with international standards. Amendments, such as
Order V, Rule 20(b) of the Civil Procedure Code, allow various electronic
communication devices as evidence, which has facilitated the use of digital proof
in court procedures.
3. Types of Modern Devices and Their Use in Pakistani Courts
o Modern evidential devices in Pakistan include CCTV footage, computer data, and
polygraph tests. Cases in Pakistani courts, such as those involving DNA testing
for paternity or criminal identification, have set precedents for the use of digital
forensics. Pakistan’s courts now frequently accept various digital formats,
including screenshots, CCTV, and emails, following rigorous verification
processes.
4. Role of the National Response Centre for Cyber Crime (NR3C)
o The NR3C under the Federal Investigation Agency (FIA) plays a key role in
ensuring that digital evidence is secure and untampered. It aids in cybersecurity
audits, digital forensics, and technical investigations, providing support for
handling cybercrimes and securing evidence in digital formats for use in court
cases.
5. Judicial Recommendations and Requirements for Digital Evidence
o Courts require that evidence from modern devices be verified by forensic experts
to avoid reliance on unverified digital proofs. The Supreme Court has provided
guidelines on the admissibility of video and audio recordings, emphasizing that
such evidence should be untampered, and forensic analysis must confirm
authenticity before being accepted.
6. Limitations and Societal Barriers in Pakistan
o The document highlights that due to socioeconomic barriers, many people,
especially in rural areas, are hesitant or unable to rely on modern devices for legal
matters. There is a recognized need to increase awareness, accessibility, and trust
in digital devices as evidence to ensure justice is accessible to all societal
segments.

These additional points underscore the expanding scope of technology in Pakistan’s legal system
and the judiciary's careful balancing act to ensure evidence integrity while leveraging modern
technology. Let me know if you'd like further elaboration on any of these points.

Conclusion
Article 164 of the QanuneShahadat Order, 1984, serves as a gateway for modern forensic science
and technology to aid legal proceedings. Courts are increasingly adopting scientific methods and
technological advances, from DNA and polygraphic tests to email and video recordings, to
enhance the accuracy and reliability of judicial decisions. This progressive approach reflects the
judicial commitment to seeking truth and ensuring justice in a technologically evolving society.

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REFERENCES FOR PRODUCTION OF EVIDENCE USING MODERN DEVICES

Researches

 National Institute of Justice (NIJ)

Offers guides and resources on the collection and admissibility of digital evidence in the U.S.

judicial system.

 Rostrum Legal

Discusses electronic evidence, related statutes, and procedural requirements in India.

 Pakistan Social Sciences Review

Provides insights into the admissibility of digital evidence under the Electronic Transactions

Ordinance (ETO) 2002 and amendments to the QSO 1984.

 Law Commission of India

Features reports and recommendations on the treatment of digital and electronic evidence in

Indian law.

Law Books:

 "The Indian Evidence Act" by Dr. Avtar Singh

Comprehensive analysis of evidence law, including electronic evidence under Section 65B.

 Qanun-e-ShahadatOrder 1986

 "Electronic Evidence: Law and Practice" by Stephen Mason

Examines the principles and practices of handling electronic evidence internationally.

Websites

[Link]

[Link]

[Link]

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