The definition of information system is intended to cover the entire range of technical means used for transmitting, receiving, and storing information. For example, depending on the factual situation, the perception of information system could indicate a communication network, and in the other instances could include an electronic mailbox or even a tele-copier. The UNCITRAL Model Law does not address the question of whether the information system is located on the premises of the addressee or on other premises, since location of information system is not an operative criterion under the model law.
This section will out line the issues involved in applying the law of evidence to the internet. It uses for it base of reference, the Qanun-e-Shahadat Order 1984 and recently enacted Electronic Transaction Ordinance 2002 and Prevention of Electronic Crime Ordinance 2007.
Almost all evidence to prove facts in litigation involving the internet will be computer- generated. This is the primarily because technology today only allows for internet usage through computers. It is therefore advisable to have a definition of computer in Section 2(l) of Prevention of Electronic Crime Ordinance 2007, “electronic system means any electronic device or a group of interconnected or related devices, one or more of which, pursuant to a program or manual or any external instruction, performs automated processing of information or data and may also include a permanent, removable or any other electronic storage medium”.
Computer generated documentary evidence will be of three types. First will be calculation or analysis that are generated by the computer itself through the running of software and the receipt of information from other device such as built-in clock and remote sensors. This type of evidence is termed as real evidence. Real evidence arises in many circumstances. If a bank computer automatically calculated the bank charges due from a customer based upon it tariff, the transaction on the account and the daily cleared credit balance, this calculation would be piece of real evidence.
Second, the documents and records produced by the computer that are copies of information supplied to the computer by the human beings termed as hearsay evidence. Cheques drawn and paying- in slips credit to banks are examples of hearsay evidence.
Thirdly, to figure in the daily balance column of a bank statement since this is derived from real evidence, in fact information that combines real evidence with the information supplied to the computer by the human beings top form a composite record is termed as derived evidence.
What is the nature if threshold requirement needed to admit these kinds of evidence? Would an electronic record constitute a document? How does this work in legal regime of cyber space? Are the contents of electronic records writings? Is the hearsay rule is applicable? In what ways? Can electronic records be accepted from this rule? On whom should be burden of proof lie, the proponent or opponent? And how should one produce and admit soft copies? These are the issues tackled by the recent amendment in Qanun-e-Shahadat Order 1984.
The enactment of Electronic Transaction Ordinance 2002 and subsequently Prevention of Electronic Crime Ordinance 2007 in Pakistan has made necessitated to evolve the evidentionary mechanism at litigation. Being consider insufficient to fulfill the requirement of Electronic evidence, the Qanun-e-Shahadat Order 1984 has amended, all information and documents generated, received or recorded by electronic system would be admissible, the relevant article of P.O No. 10 of 1984 is reproduced hereunder;
“In the said Order, after Article 46, the following new Article shall be inserted, namely;
'46-A Relevance of information generated, received or recorded by automated information system. Statements in the form of electronic documents generated, received or recorded by an automated information system while it is in working order, are relevant facts.”
The insertion of Article 73, P.O No. 10 of 1984 has made it more clear and well ranged to accept the electronic evidence, the relevant portion is given below;
“In the said Order 73, after the second Explanation, the following new Explanation shall be added, namely;
“Explanation 3.- A print out or other form of output of an automated information system shall not be denied the status of primary evidence solely for reason that it was generated, sent, received or stored in electronic form if the automated information system was in working order at all material times and for the purpose hereof, in the absence of evidence to the contrary, it shall be presumed that the automated information system was in working order at all material times'.
“ Explanation 4.- A print out or other form of reproduction of an electronic document, other than s document mentioned in Explanation 3 above, first generated, sent, received, or stored in electronic form, shall be treated as primary evidence where a security procedure was applied thereto at the time it was generated, sent, received or stored”.
The insertion of new Article P.O No. 10 1984 laid down the procedure to proof the electronic signature and electronic document where is as under;
“In the said Order, after Article 78, the following new Article shall be inserted, namely;
“ 78-A, Proof electronic signature and electronic document.- If an electronic document is alleged to be signed or to have been generated wholly or in part by any person through the use of an information system and where such allegation is denied, the application of security procedure to the signature or the electronic document must be proved”.
With the amendments in the Qanun-e-Shahadat Order 1984, some of our fundamental issues are solved- the law recognize electronic counterparts of paper documents and signature, they are admissible in court may be proved with few barriers such as requirement of original. This is, however only the first stage of moving into the secure electronic environment that the acts ETO 2002 and PECO 2007 envisages. We must acknowledge that electronic record vulnerable to tempering and there is no foolproof way of authentication and the acceptance and reliance on such forms of evidence should be tailored of the needs of each case.
(The author is lawyer of cyber laws in Pakistan)
