Amending Law of Evidence ( Qunun-e-Shahadat Order 1984 ) and e-taxation

Although the Electronic transaction ordinance 2002 has made amendments in Qunun-e-Shahadat to meet basic criterion of evidence regarding electronic transaction, like Article 2 regarding admission; Article 49-A acceptance of relevance of information generated by automated information system; Article 59 Expert opinion of information technology officer; Article 73 regarding acceptance of primary evidence of any information received and transmitted in computer based form out of automatic generated transaction and also Article 78-A prove of digital signature.

These amendments the article 184 of Qunun-e-Shahadat have also widened the definition evidence to include “scientific devices� produced thereby modern devices, although the definition of “modern� device has been extended to video films but no statutory amendments have been made regarding the extension of evidential definition to include e-commerce transaction expert opinion.

With these amendments it different to suppose rather these amendments will lead to smooth running of legal system. How the automated generated information will be place before court, either server side or client side response? Who is going to be an expert? Rather the power of expert has been defined; rather he has been granted the right to hack the security rights of system? What is a basic standard and criterion for an expert? Evidence, whether these are contained in documents or recorded through oral evidence, must be admissible before a court. Certain admissible evidence carries more evidential weight or value than others. In terms of the rules of evidence, the admissibility or evidential weight of evidence would depend on whether the "best evidence" thereof had been presented to the court.

In common law countries verbal evidence takes a strong precedence over other forms of evidence, such evidence can only be admitted, however, if it comes from the person who had direct knowledge of the matter he exposes. Therefore, according to the "Hearsay Evidence Rule", a document cannot be used as evidence if its author does not witness it. In recent years a number of provisions were introduced into Qunun-e-shahdat in order to address the hearsay evidence rule as it effects computer generated evidence. Broadly, these provisions were designed to allow a court to admit computer evidence even though it was hearsay.

Article of 78-A of Qunun-e-Shahadat, proof of Electronic signature has been amended by promulgation Electronic Transaction Ordinance 2002, but complex issues can not resolved by amendment in one article, we need here to promulgate detail digital signature laws for purposes of just adjudication of e-commerce taxation.

All transaction in e-commerce is made by acceptance of terms and conditions by Client imposed by Website operators by pressing acceptance button, by doing that he undergoes legal obligation by accepting terms and conditions imposed on him. The aim of digital signature laws to regulate website terms and conditions of contract and to impose restrict on any terms which are void or illegal according to the contract laws.

Pakistani law, at present, with few exceptions treats computer records as hearsay evidence. There is, currently, no general legislation which has adopted the rules of evidence, particularly the rule against hearsay, to take account of computer technology. All businesses would face this issue in seeking to enforce contracts entered into over the internet under Pakistani law. If Pakistan is to become a hub for e-commerce, priority needs to be given to updating the laws of evidence to enable businesses and Government Departments to transact business over the internet in a climate of legal stability.

The writer is an advocate of High Court and practicing immigration and corporate laws in Pakistan since September 2001. He is a self employed and pioneer in research on electronic commerce taxation in Pakistan. His articles were published widely in the critical areas of cyber crimes, electronic commerce, e-taxation and various other topics. He wrote LL.M thesis on titled “Legislation of electronic commerce taxation in Pakistan� in which he provided comprehensive legal proposals for statutory reconstruction of tax laws for purpose of imposition of taxation on e-business in Pakistan. Currently he is conducting is research on topic ‘Electronic commerce taxation: emerging legal issues of digital evidence'.Author can be contacted by adil.waseem@lawyer.com