Evidence and its types

What is evidence:
The legal concept of evidence is neither static nor universal. Stephen 1872 long ago noted that legal
usage of the term “evidence” is ambiguous. It sometimes refers to that which is adduced (“Adducing
evidence” is the legal term for presenting or producing evidence in court for the purpose of establishing
proof.) by a party at the trial as a means of establishing factual claims.

According to Salmond, “evidence maybe defined as any fact which possess probative force.”

According to Phipson, “evidence is a term used in judicial proceedings, meaning the facts, testimony and
documents which may be legally received in order to prove or disprove the fact under inquiry.”

In Pakistan Article 2 (c) of Qanun-e-Shahadat states that, "Evidence" includes.

(i) all statements which the Court permits or requires be made before it by witnesses, m
relation to matters of fact under inquiry; such statements are called oral evidence; and
(ii) all documents produced for the inspection of the Court; such documents are called
documentary evidence.

 judicial and extra-judicial evidence

Judicial evidence is that which is produced before the court. It consists of all the facts which are bought
to the knowledge and observation of the court. It includes the evidence by witnesses, documents
produced, and things personally examined by the courts. Extra judicial evidence does not come directly
under judicial cognizance. All the facts which are known to the court only by the inference from some
other judicial evidence is extra judicial evidence. It forms a link between judicial evidence and the facts
requiring prove. For example, confession is extra judicial if it is made outside of the court of law.

State of Rajasthan vs Raja Ram, the SC of India held that extra judicial confession if made voluntarily,
true and made in a fit state of mind can be relied upon by the court. Though the confession will have to
be proved like any other fact.

 Real and personal evidence

When the evidence is brought to the knowledge of the court by inspection of a physical or material
object and is not derived from witness or document, then it is called Real Evidence. E.g., murder
weapon, blood samples and fingerprints found, etc. According to Bentham, all the evidence which any
object belonging to the class of the things as the source, person being included in respect of such
properties, as belong to them in common with things. In this sense real evidence is direct and
immediate.

When the evidence is brought to the knowledge of the court by human agents, either in way of
disclosure or by voluntary sign, and is the oral testimony of the witness, then it is called Personal
Evidence. E.g., Behavior of the parties involved, the conduct of the witness, through Local inspection by
the court, etc.
  Primary and secondary evidence
Primary Evidence is the main source of evidence. It is an original document that is presented before the
court of law for inspection. Secondary Evidence means inferior or substituted evidence which itself
indicates the existence of more original source of information. Secondary evidence may be given in the
absence of the (better) primary evidence if proper explanation is given for such absence.

In Pakistan Article 73 and 74 of Qanun-e-Shahadat states that,

73. Primary evidence: "Primary evidence" means the document itself produced for the inspection of the
Court.

74. Secondary evidence: "Secondary evidence means and includes—

(1) certified copies given under the provisions hereinafter contained ;

(2) copies made from the original by mechanical process which is themselves ensure the accuracy of the
copy, and copies compared with such copies;

(3) copies made from or compared with the original.

(4) counterparts of documents as against the parties who did not execute them ;

(5) oral accounts of the contents of a document given by some person who has himself seen it.

As in Lucas Vs Williams Privy Council[3] It was held that Essential Evidence will be evidence which the law
needs to be given first and optional evidence is the evidence which might be given when an appropriate
clarification has been given. For example- diaries, archives and manuscript material, speeches, journals,
government publications, oral history etc.

 Direct and indirect evidence

When a specific fact is established directly without providing a reason to connect to the fact, it is known
as Direct Evidence. It is the testimony of witnesses relating to precise point in issue. Indirect evidence is
when the fact in issue is proved by providing other facts, that is, indirect facts and then proving their
relevance. For example- physical evidence, forensic evidence and scientific evidence and fingerprint
evidence.

X states that he saw Y leaving the house of Z where he was murdered with a blood-stained dagger in his
hand. Here the statement of X is circumstantial or indirect evidence. According to Keeton circumstantial
evidence is the evidence of the fact other than those of which proof is required.

The criticism on direct evidence is that relying on the evidence without proper consideration can be
drop lead. Perjury can be committed to intentionally change the direction of the case.

In the case of Kalua Vs. State of UP

Kalua threatened the victim. Shall/cartage was found near the bed of the victim. Weapon was recovered
from the house of Kalua. On inspection it was found that shell wad from the pistol found at Kalua house.
Here this is circumstantial evidence, and he was charged with a murder.
  Forensic evidence
The application of medical and paramedical knowledge to aid in the administration of justice is known as
forensic or legal medicine (forensic = forums of or employed in Courts of Law). It is a tool used by legal
authorities to solve legal issues. Applying medical expertise in cases of injury, murder, suicide, accidents,
sexual offences, poisoning, and so on are some examples. In a nutshell, it is concerned with medical
elements of the law.  It is the evidence which cannot be seen with a naked eye.

Physical: Non-living and inorganic Biological: Living

(i) Fingerprints Hair, Saliva

(ii) Shoe impression Blood, Ear wax
(iii) Tire impression Urine
(iv) Bullets Plants, woods, and pollens
(v) Drugs
(vi) Petroleum in bioproducts

(2021 PLD 362 SC) the Supreme Court of Pakistan held that admissibility of forensic evidence like any
other opinion of an expert under Article 59 is relevant and thus admissible. Article 164 of the Qanoon-i-
Shahadat Ordinance too underlines the admissibility, reliability, and weight of modern forensic
evidence, including the DNA test. Convictions may thus be based on use of modern forensic techniques.
Over the years, the DNA test has come to be recognized as relevant.

 Hearsay evidence
Original evidence possesses an independent probative force on its own while Hearsay evidence refers to
evidence which the witness has neither personally seen nor heard, nor has he perceived through his
senses and has come to know about it through some third person as per the case of Yam Hong Vs Lam
Choon and Company.