17.3 Documentary Evidence

17.3 Documentary Evidence

Quick Answer: Under QSO Chapter V, the contents of documents are proved by primary evidence (Art. 73—the document itself) except where secondary evidence (Art. 74) is allowed under Art. 76. Learn public vs private documents (Arts. 85–86), certified copies (Arts. 87–90), execution/attestation (Arts. 78–84), the thirty-year presumption (Art. 100), and the exclusion of oral evidence by documentary memorials (Arts. 102–103). Electronic records are treated within the broad idea of a “document” in modern teaching (with ETO 2002 overlays)—do not invent non-existent QSO article numbers for “email.”

Why documentary evidence scores

LAW-GAT loves bright lines: primary or secondary? public or private? Is oral contradiction barred? Does a 30-year deed need formal proof of execution? Article numbers win marks.

Reading rule: (1) Is there a document whose contents matter? (2) Produce primary evidence unless an Art. 76 door opens. (3) If the transaction was reduced to writing, apply Arts. 102–103 before allowing oral rewrite.

---

Article 72 — Proof of contents of documents

The contents of documents may be proved either by primary or by secondary evidence.

That single sentence sets the entire chapter’s binary. Everything else defines the two modes and when the second is allowed.

---

Primary vs secondary evidence

Article 73 — Primary evidence

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

Explanation themes (high-yield):

Trap: A later photocopy is not automatically “primary” merely because it looks clean.

Article 74 — Secondary evidence

Secondary evidence means and includes:

1. Certified copies given under the provisions of the Order;
2. Copies made from the original by mechanical processes which in 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.

Article 75 — Proof by primary evidence

Documents must be proved by primary evidence except in the cases mentioned in Art. 76.

Article 76 — When secondary evidence may be given

Secondary evidence may be given of the existence, condition, or contents of a document in cases including (paraphrased for study):

Article 77 — Notice to produce

Secondary evidence under the possession/power clause shall not be given unless the party proposing to give it has previously given notice to produce the original (as prescribed), or the Court thinks the original is already in Court, notice is waived, adverse party has obtained possession by fraud/force, adverse party knew he would be required to produce, or the document is itself a notice—per the article’s exceptions.

Trap: You cannot skip notice casually and then orally narrate a contract the opponent holds.

---

Comparison table — Primary vs secondary

---

Public vs private documents

Article 85 — Public documents

Documents forming the acts or records of acts of:

• The sovereign authority;
• Official bodies and tribunals;
• Public officers, legislative, judicial, and executive, of Pakistan or of a foreign country;
• Public records kept in Pakistan of private documents (as framed)—

are public documents (read the bare-act list carefully for MCQs).

Teaching test: Mere presence of a paper in a government office is not enough—it must be an act or record of an act of a public officer/body in official duty, or otherwise fit Art. 85.

Article 86 — Private documents

All documents other than those falling under Art. 85 are private documents.

---

Certified copies and official proof

Exam cue: For public documents, the law prefers certified copies so originals stay safe. That is not a licence to use random uncertified photocopies of private deeds as if they were Art. 87 certificates.

---

Proof of execution, signature, and attestation

Attestation vs execution (one-liners):

• Execution — signing/making by the party bound.
• Attestation — witness signs to testify that execution took place as required.
• If law requires attestation (e.g., certain wills/instruments as per applicable statute), Art. 79 formalities matter.
• If law does not require attestation, Art. 83 simplifies proof.

---

Presumptions as to documents (selected high-yield)

The QSO raises numerous shall presume / may presume rules for gazettes, maps, powers of attorney, books of account themes, etc. For this section, lock the cluster most often tested with primary/secondary:

Article 100 — Documents thirty years old

Where any document purporting or proved to be thirty years old is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Article 101 themes: certified copies of thirty-year-old documents may attract related treatment as the Order provides—do not assume every photocopy of an old deed is Art. 100-ready without proper custody and foundation.

---

Exclusion of oral by documentary evidence — Arts. 102–103

Article 102 — Terms reduced to document

When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant, or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the Order.

Exceptions/explanations (study list):

• When a public officer is required by law to be appointed in writing, and any officer is shown to have acted as such, written appointment need not always be proved in every collateral context as framed.
• Wills admitted to probate in Pakistan may be proved by the probate.
• Art. 102 applies to terms of the disposition—not necessarily to every related fact (e.g., separate oral agreements on distinct matters may still raise Art. 103 proviso issues).

Article 103 — Exclusion of oral agreement evidence

When the terms of any such contract, grant, or disposition of property, or any matter required by law to be reduced to writing, have been proved according to Art. 102, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms.

Proviso themes (classic MCQ doors that re-open limited oral evidence):

Exam slogan: Writing is the exclusive memorial of its terms; oral evidence cannot be used as an eraser—unless a proviso or other statutory path applies.

---

Electronic documents — standard LLB awareness (no invented QSO numbers)

Modern Pakistani teaching notes that:

1. The concept of a document is broad (matter expressed or described on any substance by letters, figures, marks, or more than one of those means, intended to be used or which may be used for recording that matter—including electronic forms in contemporary definitional practice).
2. The Electronic Transactions Ordinance, 2002 (ETO) and related recognition of electronic records/signatures support treating electronic communications as documentary material for proof purposes when authenticity is established.
3. LAW-GAT still expects you to apply primary/secondary, public/private, and Arts. 102–103 logic—an email chain does not magically escape best-evidence thinking.

Do not claim a fictional “Art. 200 E-mail Act inside QSO.” Stay with QSO documentary structure + standard electronic-record awareness.

---

End-to-end decision tree

Need to prove contents of a document?
        │
        ├─ Produce PRIMARY evidence (Art. 73) ── default (Art. 75)
        │
        └─ Cannot / need not? → Does Art. 76 apply?
                  │
                  ├─ YES → Secondary evidence (Art. 74 forms)
                  │         (notice under Art. 77 if required)
                  │
                  └─ NO → Do not substitute free oral rewrite

Is the transaction’s terms reduced to writing (Art. 102)?
        │
        ├─ YES → Prove by document / admissible secondary
        │         Oral contradiction/variation barred (Art. 103)
        │         unless a proviso applies
        │
        └─ NO → Ordinary oral evidence path (Arts. 70–71)

Public document (Art. 85)?
        │
        └─ Certified copy path (Arts. 87–88) + presumptions (Art. 90)

Document 30+ years + proper custody?
        │
        └─ Court MAY presume execution/attestation (Art. 100)

---

Classic exam scenarios

Scenario A — Original in Court: Plaintiff produces the signed sale deed original. Primary evidence under Art. 73; Art. 75 satisfied.

Scenario B — Opponent holds the only original: Plaintiff serves notice to produce (Art. 77); opponent fails. Secondary evidence may be given under Art. 76(a) path.

Scenario C — Burnt private ledger: Merchant proves destruction by fire without his default; seeks to prove entries. Secondary evidence path under loss/destruction clause—oral account only by one who saw the document, if that form is used.

Scenario D — Birth register: Public record themes → certified copy under Arts. 87–88; Art. 90 genuineness presumption for proper certification.

Scenario E — Oral rewrite of registered sale: After proving the sale deed’s terms under Art. 102, buyer wants to testify “we also orally agreed the price was different.” Art. 103 bars contradicting/varying terms—unless a proviso (e.g., fraud, mistake, separate collateral agreement) truly fits.

Scenario F — Ancient gift deed: Deed purporting to be 35 years old produced from the family chest kept by the natural custodian. Court may under Art. 100 presume due execution/attestation—may, not must.

Scenario G — Attested mortgage requiring attestation: Call two attesting witnesses under Art. 79 (if two are alive, amenable to process, and capable). If an attesting witness denies execution, Art. 82 allows other proof. Note the Pakistani contrast: Art. 79 requires two, while Art. 80 (no attesting witness found) speaks of proving that the attestation of one attesting witness at least is in his handwriting.

Scenario H — Uncertified photocopy of private contract: Not primary; not a public-document certified copy. Needs Art. 76 foundation—mere convenience is not enough.

---

High-yield exam traps

1. Treating photocopies as primary evidence by default.
2. Offering secondary evidence without an Art. 76 gateway.
3. Skipping Art. 77 notice when the original is with the adversary.
4. Calling every paper in a government office a public document.
5. Using oral evidence to vary written terms contrary to Art. 103.
6. Reading Art. 100 as a mandatory conclusive presumption.
7. Answering “one attesting witness” under Art. 79 — that is the Indian Evidence Act rule; Art. 79 QSO requires two, and it is read with Art. 17 for financial or future obligations reduced to writing.
8. Inventing special QSO article numbers for emails instead of applying documentary principles + electronic-record awareness.

---

One-line revision card

Art. 72 contents by primary or secondary · Art. 73 primary = document itself · Art. 74 secondary forms · Art. 75 primary default · Art. 76 secondary doors · Art. 77 notice to produce · Arts. 78–84 signature, attestation, comparison · Arts. 85–86 public/private · Arts. 87–90 certified copies & presumptions · Art. 100 30-year may presume · Arts. 102–103 writing is exclusive memorial; oral cannot contradict terms (provisos aside) · Electronic records → document logic, not folklore.