Department of Law

Bahria University Islamabad Campus

ASSIGNMENT ON

LAW OF EVIDENCE-II

ADMISSIBILITY OF ELECTRONIC EVIDENCE IN COURTS

Submitted To

SIR ZAFAR KUNDI

Submitted By

NASIR ZAMAN
 Table of Contents

Abstract………………………………………………………3

Introduction…………………………………………………..4

Definitions...…………………………………………………..5

Significance……………………………………………………6

What includes electronic evidence……………………………..7

Conditions for Admissibility…………………………………..8

Relevance……………………………………………………...9

Admissibility worldwide……………………………………….10

Admissibility in Pakistan………………………………………13

FIA and admissibility of electronic evidence…………………..16

Disadvantages…………………………………………………18

Conclusion…………………………………………………….18

Bibliography…………………………………………………...19
Abstract:

This assignment is an attempt to explore and construe electronic or digital evidence

and it’s admissibility in Court of law around the world.

In the following pages, there will be an attempt to describe digital evidence along with the very

conditions and grounds which make it reliable and relevant form of evidence.

Since electronic devices, their usage and subsequent legal issues regarding their admissibility have

arisen from the western countries, therefore a part of this assignment will specially cover the

question that which countries accept digital evidence around the world and to which extent?

In Pakistan, various laws have been enacted since 1980s for admissibility of electronic evidence by

the State and many of the state organs work tirelessly for authenticating such data in forensic labs set

up by the government. All of these will be discussed as well

Finally there will be a brief detail regarding disadvantages and shortcomings which arise from usage

of digital data as evidence along with few concluding remarks.

Introduction:

During the last century, electronic devices of various kinds have surfaced for
common man’s use. The benefits of all these devices are evident not only in our performance of
everyday tasks but in provision of justice as well. This will be discussed in detail in the following
pages.

Devices like cassettes, cameras, printing devices etc. are being used for a lot of purposes
including corroborating of legal facts in various cases. Now as people conduct many of their
tasks and activities on these digital devices, electronic evidence has created not only social
implications but raised wide ranging legal questions regarding it’s admissibility along with
privacy and security issues related to digital evidence1.

Like various apps can carry messages between criminals and even newer household appliances,
such as a refrigerator with a built-in TV, could be used to store, view and share illegal images.

Legislative frameworks and executive steps taken in this regard have been helpful in curtailing
crimes of both civil and criminal nature but there are issues which still need to be addressed.

1
Kramer, Xandara ; Challenges of Electronic Taking of Evidence: Old Problems in a New Guise and New
Problems in Disguise. Published in La Prueba en el Proceso / Evidence in the process. SSRN-id: 3282678
Definitions:

Electronic evidence has been defined by various experts, forums and institutions
which give us insight into the diverse issues and meanings which it encompasses.

Following is a definition which gives us an understanding of what electronic evidence is and

which devices can be included for admission of electronic evidence.

“Electronic evidence is any electronically stored information (ESI) that may be used as evidence
in a lawsuit or trial. Electronic evidence includes any documents, emails, or other files that are
electronically stored. Additionally, electronic evidence includes records stored by network or
Internet service providers.” 2

Another brief but important definition which elaborates important elements is:

“Electronic evidence, also commonly known as digital evidence, is data stored within electronic
devices or systems that can be recovered by forensic experts and used as admissible evidence
in court.”3

Electronic evidence includes any documents, emails, or other files that are electronically stored
for the purpose of being used in a court of law for validation of a particular fact.

2
https://www.legalmatch.com/law-library/article/electronic-evidence.html
3
https://cyfor.co.uk/the-importance-of-electronic-evidence/
Significance:

When digital data is used as evidence in Court, it implies that police is vigilantly
matching pace with those using technology for performing illicit acts. With the ever increasing
usage of electronic data worldwide, it is expected that more and more digital data will be used
in a prescribed and legal manner to support justice.

Importance of using electronic evidence goes to the extent of protecting commercial and
private data at various levels. All important data in the computers or other electronic devices of
such companies is every bit important because such data can leave digital traces which can
include browser history, deleted files and their remains etc.
According to Robert Brown, Chief Executive Officer at DRS Cyber 1 Company:

“For the cyber security team whose role it is to protect the organization, or the investigators
who are trying to establish how the business was breached, these bits of evidence are crucial.
They will show how an incident happened, who was responsible, how to respond to it, and most
importantly, how to stop it happening again in the future.”4

It is also useful in tracing the path of an advanced persistent threat (APT) which uses a variety
of tricks and tools to achieve its ends.

4
https://www.linkedin.com/pulse/importance-digital-forensics-robert-brown
What includes electronic evidence?
Any digitally or electronically generated data that is
relevant to a case can be called electronic evidence.

Computer documents, emails, text and instant messages, transactions, images and Internet
histories are examples of information that can be gathered from electronic devices and used
very effectively as evidence.

A latest example can be of mobile devices which use online-based based backup systems, also
known as the “cloud”, that provide forensic investigators with access to text messages and
pictures taken from a particular phone.
Following devices are seen as the ones which can be used for presentation of evidence in a
Court of law within Pakistan:

1. Tape recorder:
It is by now a well-accepted form of “real evidence” which a party may
produce to prove a fact in issue.5 But it’s value remains that of corroborative evidence
and in absence of evidence of any such conversation it is not proper evidence and
cannot be relied upon. 6

2. Photographs:
Photographs are included in electronic evidence unless it is proved that
these are not fake or manipulated.7

5
PLD 2004 Lah. 829 = PLJ 2004 Cr.C. 779 D.B.
6
PLD 1998 Pesh. 52.
7
PLD 2003 Karachi 148.
 3. Press clippings and newspaper reports:
Believing or not believing in press report is a
question of fact and before reaching a positive conclusion such facts needs to be
examined, keeping in view the intrinsic value.8
4. Using DNA for determination of parentage:
When it is possible that DNA test can
identify the parentage of a lost or displaced child, it is admissible electronic evidence.9

8
PLD 2004 SC 583.
9
2005 YLR 876 D.B.
Conditions for Admissibility:

1. Relevance and Authentication:

The main thing for admissibility is that all evidence which
could be relevant is admissible and not vice versa. If the evidence does not relate to the facts
in the case then it is not required.
Requirement of authentication as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent
claims.

2. Corroborative nature:
The evidence needs to be corroborative with the main evidence
otherwise it is of no use.

3. Should follow primary evidence:

If electronic evidence is not in line with primary evidence, it
will not be admissible.

4. Opinion of experts:
Only trained individuals can analyze such date for helping the legal
system and to make digital evidence acceptable in a Court of law as mentioned in article 59
of Qanun-e-Shahadat order 1984.

5. Original document:
It is an important condition for admissibility of an original document that
its photocopy should not be submitted as it will not be treated as evidence under article 164
of Qanun-e-Shahadat order 1984. 10

10
2000 CLC 336
6. Hearsay not included: Digital evidence should be based on solid expert opinion and analysis.
If a video or cassette is alleged to be useful in a case by some hearsay evidence then it will
have no value in Court of law.
Relevance:

Electronic data is relevant now-a-days because there is an ever increasing reliance on electronic
devices for collecting evidence. For example, if an accident happened on the road and some
individual used his phone to record statement of victim before his/her death, then it will be
very much relevant.
Relevant evidence has been defined as evidence that has:

“Any tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.”11

Relevancy of facts pertains to the probability which electronic evidence creates for supporting a
particular fact in the case. If the digital data considerably increases chances of proving any
significant fact in a case, then it is quite relevant.

Relevant evidence may be excluded if its value is substantially outweighed by the danger of
unfair prejudice.

The Lorraine model suggests that the proponent of electronic evidence focus first on relevance,
asking whether the electronic evidence has any tendency to make some fact that is of
consequence to the litigation more or less probable than it would be otherwise. 12

11
Frieden Jonathon and Murray Leigh ; The Admissibility of Electronic Evidence Under the Federal Rules of
Evidence. Richmond Journal of Law and Technology ; volume 17 issue 2 article 2.
12
Lorraine, 241 F.R.D. at 540
Admissibility worldwide:
As more and more individuals started transmitting evidence
through digital means, the admissibility of electronic evidence kept increasing. Scope of
electronic evidence is so big that many cases involving electronic evidence involve two or more
States.

In U.S.A:
Electronic evidence has been admitted as evidence in U.S.A. It is believed that
although it is new type of evidence and is different from traditional forms of evidence, it is
nevertheless part of evidence because the criteria and standard for acceptance of traditional
evidence is pretty much applied on it.

Federal Rules of evidence provide the law under which electronic evidence is scrutinized, for
example:

 Expert’s testimony is very much relevant here and if a witness cannot prove the
authenticity of his electronic evidence then it will not be admissible.
 Public records and reports are admissible under Rule 901 (b)(7) of the Federal rules of
evidence.
Case Law:

Courts in U.S have accepted electronic evidence like in the case of “Lorraine v. Markel
American Insurance Company”.13

 Both parties in this case entered into an arbitration agreement to sort out payment of
damages and loss of plaintiff’s yacht.

13
241 F.R.D. 534
 Court ruled out that language of arbitration agreement was indeed ambiguous and both
parties failed to authenticate their claim from their respective agreement for a summary
judgment.14

Getting ESI into evidence:

Judge Paul W. Grimm saw this as a perfect opportunity to see how
ESI can be used properly as evidence. He said that it is important that specific hurdles are
crossed before permitting ESI as evidence. Following elements were discussed and elaborated:

Relevance:
Relevance is seen as an important element in this judgment and it was ruled out
that emails attached in this case are in fact relevant to this case under rule 401.

Authenticity:
Judge Grimm mentions that this condition is often not completely met by the
lawyers to show minimum requirement of authenticity as per rule 901. Emails in this case were
not properly authenticated.

Hearsay:
Under rule 801 it is important that once evidence is relevant and authentic, it must
also overcome any hearsay object.

14
https://www.lexisnexis.com/applieddiscovery/LawLibrary/whitePapers/ADI_WP_LorraineVMarkel.pdf
In Europe:

In Europe, Admissibility of the Electronic Evidence in Court has been designed to provide
response to this situation and to other questions.
The objective is to understand the existing legislation, and how the situation can be improved.15

In India:

Changes in Indian Evidence Act have been made for recognition of electronic evidence.
Sections 65-A and 65-B have been added in IT Act, 2000.

Issues of Privacy and Breach of Sovereignty:

Countries frustrated by inability of law enforcement
to quickly gather digital evidence outside their borders have taken matters into their own
hands.
Some have proposed laws that important data about their citizens remain in country, where it
can be accessed when requested.

Others countries have proposed laws that would allow law enforcement to get access to data
wherever it is stored. Such laws have put companies in the position of potentially violating one
country’s laws.

15
Insa, Fredesvinda ; THE ADMISSIBILITY OF ELECTRONIC EVIDENCE IN COURT IN EUROPE.
Admissibility in Pakistan:
Following articles of Qanun-e-Shahadat order 1984 provide
information regarding admissibility of electronic evidence in Courts within Pakistan:

 Article 164 of Qanun-e-Shahadat 1984 states that Court can allow and use any evidence
available through modern devices and techniques.

 Article 59 of the same order states that opinions of third persons skilled in foreign law,
science or art are admissible.

 However, electronic evidence is mostly accepted as secondary evidence which is

elaborated in article 74.

 Whereas article 78-A was inserted in 2002 for provision of proof of electronic signatures
and documents.

Value of electronic evidence:

It’s value is only of corroborative evidence and in absence of
evidence of any such conversation it is not proper evidence and cannot be relied upon. 16

Questions regarding credibility of such piece of evidence are open ended questions. 17

Acceptance of Various forms of electronic evidence:

Various types of digital or electronic
evidence have been accepted by Courts within Pakistan which include tape-recorded
conversations, photographs and data analyzed and created by computers.

16
PLD 1998 Pesh. 52
17
1995 MLD 1485
Computer:
It is a modern technique and is well within the ambit of article 164. 18

Tape-recorder conversation:

 It is by now a well-accepted form of “real evidence” which a party may produce to prove
a fact in the issue.19

 Such statements are admissible in evidence when proved by person making such
recording.20

 When voice of person sought to be proved not duly identified would not be admissible
in evidence.21

Photographs:
Technology has so much advanced that photographs and even video tapes can be
manipulated and maneuvered.
Unless it is proved that the photographs are not manipulated, these cannot be allowed to be
produced in evidence.22

Photocopy of original document:

Whereas photocopy of original documents is not accepted as
evidence under article 164 of QSO 1984. 23

18
PLJ 2002 Lah. 159
19
PLD 2004 Lah. 829 = PLJ 2004 Cr. C. 779 D.B
20
PLD 1976 SC 57 =PLJ 1976 SC 72
21
1986 CLC 1784
22
PLD 2003 Kar. 148
23
2000 CLC 336
Paper clippings and newspaper reports:
Admissibility of paper clippings and newspaper reports
is a question of fact and such facts should be examined thoroughly.24

DNA testing:
Determination of parentage based on D.N.A is also accepted. 25

Case Law:

 NOOR ALI Petitioner vs. S.P. QUETTA and others Respondents.26

Facts:
 Minor girl Rafiya’s parentage was under dispute after she was produced from Dar-ul-
Aman Quetta.
 Learned counsel for the petitioners raised objections regarding manipulation of DNA
report and asked for another DNA test by taking new samples of both parties.
Judgment:

 Honorable Court ruled that parents of minor Rafiya are poor people and hence have no
power to manipulate DNA report.
 Honorable Court held that:
”In the light of D.N.A. report prima facie it appears that the petitioners knowing themselves fully
well that they are not the real parents of the minor Rafia, yet claimed to be parents of the said
minor girl but made false statements before this Court as well as filed false affidavits and
statements in this Court, therefore, notice be issued to them each respectively to show cause as
to why they may not be proceeded against in accordance with law.”

24
PLD 2004 SC 583
25
2005 YLR 876
26
ibid
FIA and Admissibility of Electronic evidence:
The Federal investigation agency plays a
very crucial and important part for security of citizens of Pakistan. FIA has a very active and
significant cybercrime unit which works very hard to examine and analysis internet data along
with other kinds of forensic evidence.

Prevention of Electronic Crimes Act, 2016:

It is important to note that electronic evidence
gathered and analyzed for admissibility in Court by FIA and other such agencies is provided it’s
legal basis through legislations by the State among which an important one is prevention of
electronic crimes act, 2016.
Following sections of this act are important for admissibility and analysis of electronic and
digital evidence in Pakistan:

1. Establishment of investigative agency:

Section 29 of the aforesaid act states that an
investigation agency with it’s own capacity for analysis of data is to be established. Subsequent
section 30 tells that an authorized officer under this agency will have wide powers to
investigate offences under this act.

2. Warrants:
Sections 33 and 34 discuss about the power of officers under the order of Court
to get warrants for search and seizure and for disclosure of content of data respectively.

The Punjab Forensics Science Agency act:

It is mentioned that Section 9 of the
PFSA Act describes all persons appointed in the agency shall be deemed as expert and the report
in case of video sent by the said authorities is admissible in evidence.
 Case Law:

 2012 YLR 320 karachi-highcourt-sindh

 Waqas ahmed siddiqui vs. the state through cyber-crime circle

 The trail court was to decide the said issue after recording of evidence.
Disadvantages:

 The first setback when using electronic evidence is proving that it is authentic and
admissible because of many ways of manipulating it.

 Another disadvantage is the cost and time of retrieving data. Analysis and reporting of
data can take as long as 15 hours and analysts charge heavily.

 If a lawyer is unaware of minute details of digital evidence then it will be difficult for him
to cross examine.

 Sometimes issues of disclosure of private data arise.

 When countries hack into digital data of other countries, issues related to violation of
sovereignty arise.

Conclusion:

Admission of electronic or digital data as evidence is very often vital for proving
crucial facts in a case.

Problems related to authenticity, breach of privacy and sovereignty are under consideration
and laws are being made on these issues.

Overall the future prospects of admissibility of electronic evidence are bright.

 Bibliography:

Books:
1. Kramer, Xandara ; Challenges of Electronic Taking of Evidence: Old Problems in a New Guise and
New Problems in Disguise. Published in La Prueba en el Proceso / Evidence in the process. SSRN-
id: 3282678.
2. Lorraine v. Markel: Electronic evidence 101; white paper published by Lexis Nexis.
3. Mason, Stephen and Seng, Daniel; Electronic evidence; School of Advanced Study, University of
London, Institute of Advanced Legal Studies (2017). Stable URL:
https://www.jstor.org/stable/j.ctv512x65.14.
4. Mehmood, Shaukat ; Commentary of Qanun-e-Shahadat Order 1984 published in 2007 by
Nabha publishers.

Articles:
1. Karia, Tejas; Anand Akhil and Dhawan, Bahaar; The Supreme Court of India re-defines
admissibility of electronic evidence in India.
2. Insa, Fredisvenda ; The admissibility of electronic evidence in Court in Europe.

Internet articles:

1. Criterion for admissibility of electronic evidence.

https://www.lexology.com/library/detail.aspx?g=29828d6d-8396-4070-9424-05ac2e0ecfae
2. Digital evidence across borders and engagement with non-U.S. authorities.
https://blog.cloudflare.com/digital-evidence-across-borders-and-engagement-with-non-us-
authorities/
3. Digital evidence: How it’s done.
http://www.forensicsciencesimplified.org/digital/how.html
4. Electronic evidence defined.
https://www.edrm.net/glossary/electronic-evidence/
 5. Electronic evidence explained.
https://www.legalmatch.com/law-library/article/electronic-evidence.html
6. Electronic evidence and it’s admissibility in Court.
https://blog.signaturit.com/en/electronic-evidence-and-its-admissibility-in-court
7. Relevancy and admissibility of electronic evidence.
https://www.lawteacher.net/free-law-essays/commercial-law/relevancy-and-admissibility-of-
electronic-law-essays.php
8. The advantages and disadvantages of electronic evidence.
https://sentreesystems.com/newsletter-topics/the-advantages-and-disadvantages-of-computer-
forensics/
9. Importance of digital forensics analysis.
https://www.linkedin.com/pulse/importance-digital-forensics-robert-brown