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.”

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.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.
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.

2. Photographs:

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

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

PLD 2004 Lah. 829-PLJ 2004 Cr.C. 779 DR

PLD 1998 Pesh. 52.1 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

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.”
PLD 2004 SC 581.

2005 YLR 870 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:

Will not be admissible.

If electronic evidence is not in line with primary evidence, it

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)2000 CLC 336

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.”

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.”

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 (2000
CLC 330)

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.

(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. Lorraine, 241 FR.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”:1

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

(241 F.R.D. 534)

Court ruled out that language of arbitration agreement was indeed ambiguous and both partles falled to
authenticate their claim from their respective agreement for a summary
judgment.(applieddiscovery/LawLibrary/whitePapers ADI WP_Lorraine Markel.pdf)

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.

In Europe:

In Europe, Admissibility of the Electronic Evidence in Court has been designed to provide responthis
situation and to other questions.

The objective is to understand the existing legislation, and how the situation can be improved.”(Insa,
Fredesvinda; THE ADMISSIBILITY OF ELECTRONIC EVIDENCE IN COURT IN EUROPE)

In India:

Changes in Indian Evidence Act have been made for recognition of electronic evidence.

Sections 65-A and 65-8 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.

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.PLD 1998 Pesh 52

Questions regarding credibility of such piece of evidence are open ended questions(.1995 MLD 1485)

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.
Computer;

It is a modern technique and is well within the ambit of article 164(.PLJ 2002 Lah. 1591)

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.(PLD 2004 Lah. 829- PLJ 2004 Cr. C. 779 D.B)

Such statements are admissible in evidence when proved by person making such recording,(PLD 1976 SC
37-PL 1970 SC 72)

When voice of person sought to be proved not duly identified would not be admissible In
evidence.”(1986 CLC 1784)

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 all inowed to be

Produced in evidence(PLD 2003 Kar. 148)

Photocopy of original document:

Whereas photocopy of original documents is not accepted as Evidence under article 164 of QSO
1984(,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.(PLD 2004 SC 583)

DNA testing:

Determination of parentage based on D.N.A is also accepted. 2005 YLR 870

Case Law:

NOOR ALI Petitioner vs. S.P. QUETTA and others Respondents.ibid

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.”
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 PESA 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 LexisNexis. 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/i.tv512x65.14 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 9424-05ac2c0ecfac

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

6. Relevancy and admissibility of electronic evidence.

https://www.lawteacher.net/free law essays/commercial-law/relevancy and admissibility of

electronic-law-essays.php

7. The advantages and disadvantages of electronic evidence.

https://sentreesystems.com/newsletter-topics/the-advantages-and-disadvantages-of-computer-

Forensics/

8. Importance of digital forensics analysis.

https://www.linkedin.com/pulse/importance-digital-forensics-robert-brown