2016 YLR 62
ملزم کو اس کے خلاف مواد کی کاپیز دینے کا حکم ۔۔۔ سی ڈی اور یو ایس بی میں موجود مواد ملزم حاصل کرسکتا ہے ۔۔
(a) Penal Code (XLV of 1860)---
----Ss. 302, 114, 109, 34 & 29---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 21-H & 27-B---Criminal Procedure Code (V of 1898), Ss.265-C, 161, 164 & 173---Qanun-e-Shahadat (10 of 1984), Arts.2(b) & 164---Constitution of Pakistan, Arts.4 & 10-A---Qatl-i-amd, abetment, common intention, act of terrorism---Supply of copies of 'CDS' and 'USB' (Universal Serial Bus), application for---Dismissal of application by Trial Court---Validity---Video cassette, fell within the purview of 'document', for the reason that definition of document contained in S.29, P.P.C. and Art.2(b) of Qanun-e-Shahadat, 1984, left no doubt that video cassette fell within the purview of matter expressed or described upon any substance by means of letters, figures or marks---Trial Court, had found that in order to avoid manipulation or alteration, generally a manuscript of the recording, was supplied to accused; and decided that video and CD or USB, would be played and heard after recording of evidence of both the sides in the open court; where accused could note down things, and file objections; and the court could pass any appropriate order for deciding objection; or could consider those objections at the time of writing judgment---Much emphasis was made in the impugned order that CD and USB would be played/watched and heard in the open court after recording of evidence of both the sides---Validity---Trial Court tried a case in which capital punishment could be awarded, if the charge was proved---Incumbent upon the Trial Court to provide fair and reasonable opportunity of defence to accused, which was also a basic and foremost prerequisite of administration of criminal justice---To enjoy the protection of law and to be treated in accordance with law, was inalienable right of every citizen of Pakistan under Arts.4 & 10-A of the Constitution---Trial Court had refused to supply the copy of CD and USB, which was not only against the mandate and command of Arts.4 & 10-A of the Constitution but also in violation of norms of administration of justice---Findings of the Trial Court were perverse and misconstrued---Once the typed/written transcripts of CD and USB were allowed to the applicant/accused by the Trial Court, then it had become his more fervent and stringent inalienable and incontrovertible right to get CD and USB for his defence---Unless he was supplied the copies, he would not be in a position to compare the recorded version/statements with the transcripts and make out his defence---Denial of said items amounted to dearth and scarcity of right to a fair trial---No substantial or conceivable rationale, was given in the impugned order to deny the copy of CD and USB---Impugned order was set aside, with direction to the Trial Court to supply the copies of CD and USB to the applicant in compliance of the provisions of S.265-C, Cr.P.C.---High Court observed that finding of High Court in the present case, being based on specific legal question, would not affect the merits of the case.
Government of Sindh v. Fahad Naseem and others 2002 PCr.LJ 1765; Arif Hashwani v. Sadaruddin Hashwani PLD 2007 Kar. 448; Rehmat Shah Afridi v. State PLD 2004 Lah. 829; Omparaksh v. State of Tamil Nadu 2013 Cri LJ 997 (SC); Halsbury's Law of England; 4th Ed. Vol. 17 P.1 and Law of Evidence, Commentary on Evidence Act, 1872, First Edition, 2013, Ram Jethmalani, Volume-I ref.
(b) Constitution of Pakistan---
----Art. 10-A---Right to fair trial---Roll of Government was to hold people to account for crimes they had committed; and ensure that justice was done and seen to be done---Government was also responsible to maintain law and order situation for the betterment of society, and to create deterrence against the crimes, so that the crime ratio be lessened and diminished---Grave responsibility, was also attached to the Government because convicting a person of a criminal offence, and potentially taking away liberty; was one of the most serious steps, which was only justified after the person had been given opportunity of fair trial, which was a best device of separating the guilty from the innocent; and protection against justice---Fair trial was also recognized internationally as a foundation of freedom and justice, and fundamental human right---'Due Process of Law', would mean a legal requirement that the State must respect all legal rights that were owed to a person---Due process, would balance the power of law of the land and protect the individual person which was analogous to the concept of natural justice and procedural justice.
Black's Law Dictionary Ninth Edition; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and others AIR 1975 SC 1788 and Electronic Evidence", Second Edition, Stephen Mason, General Editor, LexisNexis' (Butterworths) ref.
Amjad Ali Sahito for Applicant.
Inam Ali Malik and Meer M. Burero for the Complainant.
Syed Meeral Shah Bukhari, D.P.G. for the State.
Date of hearing: 21th April, 2015.
SIKANDAR ALI LASHARI VS State
2016 Y L R 62
[Sindh]
Before Muhammad Ali Mazhar and Shoukat Ali M. Memon
SIKANDAR ALI LASHARI---Applicant
Versus
The STATE and another---Respondents
Criminal Revision Application No.D-240 of 2014, decided on 22/06/2015.
ORDER
MUHAMMAD ALI MAZHAR, J.---This criminal revision application has been brought to challenge an order dated 13.12.2014 passed by Anti-Terrorism Court Hyderabad in A.T.C. Case No.91 of 2014 whereby court declined to supply USB and CD to the applicant before framing of the charge.
1. The short-lived facts of the case are that the applicant is facing trial in Crime No.12 of 2014, lodged at Police Station G.O.R, Hyderabad under Sections 302, 114, 109, 34, P.P.C. and Sections 6 and 7 of Anti-Terrorism Act, 1997. After submitting the charge sheet under Section 173, Cr.P.C, the case was fixed for supplying the copies of documents to the applicant. The applicant demanded copy of the USB and CDs which was also shown in the challan as case property but the counsel for the complainant raised the objections. The learned trial court after hearing the parties dismissed the application vide order dated 13.12.2014.
2. The learned counsel for the applicant argued that the impugned order is against the administration of criminal justice. The material asked to be supplied is document within the purview of Article 164 of Qanun-e-Shahadat Order, 1984 which should not have been refused. It was further contended that the purpose of supplying copies of documents under Section 265-C Cr.P.C. is to facilitate the accused so that he may know the accusation and gauge the evidence against him. If the copy of CD of alleged confession is not provided to the accused, neither he would be able to defend the charge nor would be in a position to assess its voluntariness and genuineness. The impugned order is also in contravention of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 which postulates the fundamental right of fair trial and due process. It was further averred that even the principles of natural justice lead to fair trial and equal opportunity to both the prosecution and accused. Without watching the CD of alleged confession and hearing the alleged recorded conversation of Mst. Keenjer with the mother of deceased, no defence could be made out by the applicant. In support of his contentions, he referred to the case of "Government of Sindh v. Fahad Naseem and others", (2002 PCr.LJ 1765), and "Arif Hashwani v. Sadaruddin Hashwani", (PLD 2007 Karachi 448).
3. The learned counsel for the complainant supported the impugned order and argued that the trial court has rightly refused to supply the copy of USB and CD to the applicant. He further argued that the typed transcript of statements have been provided to make out the defence and after close of trial, the CD will be played by the court in presence of parties. He showed apprehension that if USB and CD are provided to the applicant before framing of charge, the acute chances of manipulation in the recorded text cannot be ruled out. However he admitted that the copy of same USB and CD was provided to the complainant by the prosecution. He referred to the case of "Rehmat Shah Afridi v. State", PLD 2004 Lahore 829.
4. The learned DPG was of the view that in terms of Section 265-C, the accused is entitled to the copies of documents. He further argued that when the typed transcript of the statements extracted from USB and CD could be provided then there was no harm to provide the hard copies enabling the applicant to make out his defence in the trial.
5. Heard the arguments. The bone of contention is whether the accused/applicant is entitled to the copy of audio and video data stored in the USB and CD or not? which right has been denied by the trial court. In order to reach just and proper conclusion, we have to perceive and embrace Section 265-C of the Criminal Procedure Code first which is in fact relates to the supply of statements and documents to the accused. The niceties of this section articulates that in the cases instituted upon police report copies of the documents are to be supplied free of cost to the accused not later than seven days before the commencement of the trial. The gist of documents entail the first information report; the police report; the statements of all witnesses recorded under sections 161 and 164, and the inspection note recorded by an investigating officer on his visit to the place of occurrence and the note recorded by him on recoveries made, if any, provided that, if any part of a statement recorded under section 161 or section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused. The subsection (2) of this section is pertinent to the private complaint in which also the letter of law is clear that the complainant shall state the substance of accusation, the names of his witnesses and the gist of evidence which he is likely to adduce at the trial and within three days of the orders of the Court under Section 204 for issue of process, file in the Court for supply to the accused, as many copies of the complaint and any other document with his complaint as the number of the accused and copies of the complaint and any other documents which the complainant has filed therewith and the statements under section 200 or section 202 shall be supplied free of cost to the accused nor later than seven days before the commencement of the trial.
6. In order to thrash out and settle down the controversy to some logical end, we feel it essential to visit the definition of the word "document" and "evidence" provided under the distinct statutes in juxtaposition and proximity.
Qanun-e-Shahadat Order, 1984.
Article 2 (b) "document" means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
Illustrations
A writing is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document;
Article 2 (c) "evidence" includes:-
(i) all statements which the court permits or requires to be made before it by witnesses, in 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.
Pakistan Penal Code
29. "Document". The word "document" denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.
Explanation 1. It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not.
Illustrations
A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document.
A cheque upon a banker is a document.
A Power-of-Attorney is a document.
A map or plan which is intended to be used or which may be used as evidence is a document.
A writing containing direction or instructions is a document.
Explanation 2. Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed.
Illustration
A writes his name on the back of a bill of exchange payable to his order. The meaning of the endorsement, as explained by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and must be construed in the same manner as if the words "pay to the holder" or words to that effect had been written over the signature.
7. The minutiae of definition of "document" provided under the Pakistan Penal Code is more or less analogous and consonant with the definition of "document" catered in the Qanun-e-Shahadat Order, 1984 except with some variations in the explanations and or illustrations. In the aforementioned statutes, more than enough broadened and expanded scope has been postulated. At this juncture, one more thing has weighty significance that is Article 164 of the Qanun-e-Shahadat Order which envisions that court may allow to produce any evidence that may have become available because of modern devices or techniques.
Article 164 of Qanun-e-Shahadat Order, 1984.
"164. Production of evidence that has become available because of modern devices, etc. In such cases as the court may consider appropriate, the court may allow to be produced any evidence that may have become available because of modern devices or techniques".
Clause (e) of Article 2 (Interpretation) of the Qanun-e-Shahadat is also noteworthy to a certain degree under which the expression "automated", "electronic", "information", "infor-mation system", "electronic document", "electronic signature", "advanced electronic signature", and "security procedure" means the meanings given in the Electronic Transactions Ordinance 2002.
What is Compact Disc (CD)
"Known by its abbreviation, CD, a compact disc is a polycarbonate with one or more metal layers capable of storing digital information. The most prevalent types of compact discs are those used by the music industry to store digital recordings and CD-ROMs used to store computer data. Both of these types of compact disc are read-only, which means that once the data has been recorded onto them, they can only be read, or played. <http://www.webopedia.com/TERM/C/compact_disc.html>".
"a small digital audio disc on which sound is recorded as a series of metallic pits enclosed in PVC; the disc is spun by the compact disc player and read by an optical laser system. Also called: compact audio disc Abbreviation: CD or CAD". <http://www.thefreedictionary.com/compact+disc>
Since the case in hand is being tried by the Anti Terrorism Court under the provisions of Anti-Terrorism Act, 1997, therefore we have to look in on Section 27-B of Anti-Terrorism Act, 1997 also in which court may convict the accused on the basis of electric or forensic evidence or such other evidence that may have become available because of modern devices or techniques.
Anti-Terrorism Act, 1997
"27-B. Conviction on the basis of electronic or forensic evidence etc. Notwithstanding anything contained in this Act or Qanun-e-Shahadat, 1984 (P.O.No.10 of 1984) or any other law for the time being in force, a person accused of an offence under this Act may be convicted on the basis of electric or forensic evidence or such other evidence that may have become available because of modern devices or techniques referred to in Article 164 of the Qanun-e-Shahadat, 1984 (P.O. No.10 of 1984)".
8. After analyzing and dissecting the aforesaid provisions of different statutes, we reach to the final that the definition of document is much expanded and any substance by means of letters, figures or marks is document including an inscription on a metal plate. It is quite clear from the definition of CD that it is made by polycarbonate with one or more metal layers capable of storing digital information and audio and visual data is recorded as a series of metallic pits enclosed in PVC. So far as USB (Universal Serial Bus) flash drive is concerned, it is often used for the same purposes for which floppy disks or CDs are used, i.e., for storage, data back-up and transfer of computer files. It is immune to electromagnetic interference (unlike floppy disks), and are unharmed by surface scratches (unlike CDs). The data which may be transferred on CD may also be stored/transferred on USB drives so it is only a medium and vehicle of storage that's why in our view the data stored on CD and USB flash drive is covered in the wide spread definition of document.
9. In the case of Government of Sindh v. Fahad Naseem and others reported in 2002 PCr.LJ 1765, the learned Division Bench of this court held that the video cassette falls within the purview of 'document' for the reason that the definitions of document contained in section 29, P.P.C. and Article 2(b) of Qanun-e-Shahadat, 1984 leave no scintilla of doubt that video cassette squarely falls within the purview of 'matter expressed or described upon any substance by means of letters, figures or marks. This was a famous case of an American Journalist Daniel Pearl who was abducted and murdered. The video cassette was produced by prosecution witness No.12 which was brought on record as Article -1. The accused moved an application under Section 265-C/548 Cr.P.C for certified true copy and his application was allowed against which Government of Sindh filed Revision application but their revision application was dismissed by this court.
10. Though the learned counsel for the complainant referred to another famous case of Rehmat Shah Afridi, (Editor-in-Chief, Frontier Post Newspaper) tried under the provisions of Control of Narcotic Substances Act 1997 but in our view the dictum laid down in the case supra does not provide any help and assistance to the arguments built up by the complainant's counsel. The learned Division Bench of Lahore High Court held that tape recorded version is by now a well-accepted form of real evidence. In the above case, the prosecution not only produced telephonic conversation but also video tape which was exhibited in evidence along with transcripts. Copies of audio and video tapes including transcripts were delivered to the accused before commencement of trial along with the statements of the prosecution witnesses recorded under Section 161, Cr.P.C.
11. We have minutely considered the reasons put forward by the learned trial court. It would be advantageous to reproduce the concluding paragraph of the impugned order as under:-
"The objection to supply of copy of documents under Section 265(c) is to let accused know the nature of the case registered against him and confront the P.Ws during the evidence which is to be recorded. When in the case of video or CD or cassettes recorded to avoid manipulation or alteration generally manuscript of the recording is supplied to accused which serve purpose of confronting relevant witness, and Video, CD or USB is to be played and heard after recording of evidence of both the sides in the open court, before the court and both the parties. During that the accused can note down things which are missing from or are different from manuscript and can file such objection for the consideration of the court and court can pass any appropriate order for deciding objection or may consider those objection at the time of writing Judgment.
In view of all above case law relied upon by defence counsel is distinguishable excepting that CD Video and Film are documents, therefore, is of no help for the accused.
Therefore, at this stage only manuscript of the CD and USB is to be supplied to the accused to know complete nature of his case.
It is again made clear that CD and USB shall be played and watched and heard in the open court before both the parties after recording of evidence of both the sides."
12. The gist of reasoning if comprehended in literal sagacity, the trial court indeed held that in order to avoid manipulation or alteration, generally a manuscript of the recording is supplied to accused and decided that Video and CD or USB will be played and heard after recording of evidence of both the sides in the open court where the accused can note down things and file objections and the court may pass any appropriate order for deciding objection or may consider those objection at the time of writing Judgment. Much emphasis was made in the impugned order that CD and USB will be played/ watched and heard in the open court after recording of evidence of both the sides.
13. We have already discussed Section 27-B of ATA 1997 in which accused may be convicted on the basis of electronic or forensic evidence and other evidence that may be available through modern devices or techniques referred to under Article 164 of Qanun-e-Shahadat Order. The trial court is trying case for the offenses provided under Sections 302, 114, 109, 34 P.P.C read with Sections 6 and 7 of ATA 1997 in which capital punishment may be awarded if the charge is proved therefore it is incumbent upon the trial court to provide fair and reasonable opportunity of defence to the accused which is also a basic and foremost prerequisite of administration of criminal justice. In the case of Omparkash v. State of Tamil Nadu, 2013 Cri LJ 997 (SC), the court held that "a Judge trying a criminal case has a sacred duty to appreciate the evidence in a seemly manner and is not to be governed by any kind of individual philosophy, abstract concepts, conjectures and surmises and should never be influenced by some observation or speeches made in certain quarters of the society but not in binding precedents. He should entirely ostracise prejudice and bias. The bias need not be personal but may be opinionated bias. It is obligation to understand the case of the prosecution and the plea of the defence in proper perspective, address to the points involved for determination and consider the material and evidence brought on record to substantiate the allegations and record his reasons with sobriety sans emotion". Halsbury's Law of England, 4th Ed, vol. 17, p.1. articulates that "Evidence is the usual means of proving or disproving a fact or matter in issue. The law of evidence indicates what may properly be introduced by a party (that is, what is admissible) and also what standard of proof is necessary (that is the quality or quantity of evidence necessary in any particular case). In short the law of evidence governs the means and manner in which a party substantiate his own case, or refute that of his opponent". Ref: Law of Evidence, Commentary on Evidence Act, 1872, First Edition, 2013, Ram Jethmalani, Volume-I.
14. At this occasion we also cannot ignore Article 10-A of our Constitution (Inserted by Constitution (Eighteenth Amendment) Act X of 2010) which envisions right to fair trial.
"10-A. Right to fair trial. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process".
What is significant in the above Article is the phrase and expression "fair trial" and "due process". No doubt it is the role of government to hold people to account for crimes they have committed and ensure that justice is done and seen to be done. It is also their responsibility to maintain law and order situation for the betterment of society and to create deterrence against the crimes so that the crime ratio should be lessened and diminished. Simultaneously, a grave responsibility is also attached to them because convicting a person of a criminal offence and potentially taking away liberty is one of the most serious steps which is only justified after the person has been given opportunity of fair trial which is a best device of separating the guilty from the innocent and protection against the injustice. The fair trial is also recognized internationally as a foundation of freedom and justice and fundamental human right. So far as the phrase and or expression "Due Process of Law" is concerned, it means a legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. It is analogous to the concept of natural justice and procedural justice. At this instance, we would go to see the connotation of "due process" in the Black's Law Dictionary, Ninth Edition.
Due process. (16c) The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case.- Also termed due process of law; due course of law. See Fundamental Fairness DOCTRINE. [Cases: Constitutional Law 3840-4841.]
"The words 'due process' have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature." Alexander Hamilton, Remarks on an Act for regulating Elections, New York Assembly, 6 Feb. 1787, in 4 papers of Alexander Hamilton 34, 35 (Harold C. Syrett ed., 1962).
"The words, "due process of law,' were undoubtedly intended to convey the same meaning as the words, "by the law of the land,' in Magna Charta." Murray's Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 276 (1856) (Curtis, J.).
"Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs." Thomas M. Cooley, A Treatise on the Constitutional Limitations 356 (1868).
"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections .The notice must be of such nature as reasonably to convey the required information." Mullance v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657 (1950) (Jackson, J.).
15. In order to come to a decision as to whether the CD and USB may be included in the definition of document and required to be supplied to the accused under the provisions of Section 265-C Cr.P.C., we have also paid a visit to some judgments of foreign jurisdiction. In the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and others, reported in AIR 1975 Supreme Court 1788, the Supreme Court of India held as under:--
"19. We think that the High Court was quite right in holding that the tape records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:-
(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.
These requirements were deduced by the High Court from R. v. Maqsud Ali (1965) 2 All ER 464."
In the case of R.M. Malkani v. State of Maharashtra, reported in AIR 1973 Supreme Court 157, it was held as under:
Brief Note:- (B) Tape recorded conversation is admissible provided that the conversation is relevant to the matters in issue, that there is identification of the voice and that the accuracy of the conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8. It is res gestae. It is also comparable to a photograph of a relevant incident. The conversation is therefore, a relevant fact and is admissible under Section 7. When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. The fact that tape recorded conversation can be altered is also borne in mind by the Court while admitting it in evidence.
To pacify the ongoing discussion, we would also like to reproduce some selected excerpts from the book "Electronic Evidence", Second Edition, Stephen Mason, General Editor, LexisNexis' (Butterworths) which are also reminiscent in some way.
"10.46. Audio tapes were also accepted as a discoverable document in Grant v. Southwestern and Country Properties Ltd, in which the meaning of a document was defined by its quality to convey information, as determined by Walton J at 198: 'I conclude that a tape recording, provided of course that what is recorded is indeed information - relevant sounds of some description is a document.' Television film is also considered a document, as is the output of facsimile transmissions, data stored on a computer (in this instance, a database) constitute a document for the purposes of the obligation to discover under the provisions of Order 24 of the Rules of the Supreme Court, and a label on a bottle containing a specimen of blood provided by the accused. The material may sometimes determine the admissibility of the evidence, but the definition is considered wide enough to bring any medium into its ambit without causing difficulties. The term document is something upon which information is stored. This must be correct, because if information is not stored, the content is not available, and therefore, remains oral evidence.
Reference: 1 [1975] Ch 185, [1974] 2 All ER 465, [1974] 3 WLR 221. See also R v Senat, R v Sin (1968) 52 Cr App R 282; R v Stevenson [1971] 1 All ER 678, [1971] 1 WLR 1; R v Robson; R v Harris [1972] 2 All ER 699, [1972] 1 WLR 651, CCC. Senior v Holdsworth Ex p Independent Television News Ltd [1976] QB 23, [1975] 2 All ER 1009, [1075] 2 WLR 987, CA. Hastie & Jenkerson v McMahon [1991] 1 All Er 255, [1990] 1 WLR 1575, CA. Derby & Co Ltd v Weldon (No.9) [1991] 2 All Er 901, [1991] 1 WLR 652, CA. Khatibi v DPP [2004] EWHC 83 (Admin), 168 JP 361. Charles Hollander QC, Documentary Evidence (10th edn, 2009), Sweet and Maxwell, paras 7-19".
Video tape and security camera evidence.
"10.91 Surveillance cameras are very much part of life in the twenty-first century, the foundations of which began in the latter decades of the twentieth century. Evidence of images from security cameras can be very helpful in identifying the perpetrators of crimes, and the enhancement of the images, together with the use of more advanced techniques such as facial mapping, can help to identify parties to an offence. Such evidence has been admitted in English courts, mainly in criminal cases.
A list that is not exhaustive includes: R v McShane (1977) 66 Cr App Rep 97, [1977] Crim LR 737, CA; R v Fowden and White [1982] Crim LR 588, CA; R v Grimer [1982] Crim LR 674, 126 Sol Jo 641, CA; R v Dodson (Patrick); R v Williams (Danny Fitzalbert Williams) [1984] 1 WLR 971, (1984) 79 Cr App R 220; R v Stockwell (1993) 97 Cr App Rep 260, CA; R v Clarke [1995] 2 Cr App Rep 425; R v Clre; R v Peach [1995] 2 Cr App Rep 333, 159 JP 412; R v Feltis (Jeremy) [1996] EWCA Crim 776; R v Hookway [1999] Crim LR 750; R v Briddick [2001] EWCA Crim 984, 2001 WL 513023, CA (Crim Div); R v Loveridge [2001] EWCA Crim 973, [2001] 2 Cr App Rep 591, (2001) Times, May 3 - in this instance, the accused were recorded by video in the court, an act which was prohibited by section 41 of the Criminal Justice Act 1925, and the recording was also held to have infringed the rights of the accused under Article 8 of the Human Rights Act 1998 - however, neither infringement was held to have interfered with the right to a fair trial: Elliott Goldsetein, 'Photographic and videotape evidence in the criminal courts of England and Canada' [1987] Crim LR 384".
16. The impugned order do show that the dictum laid down by this court in the case of Government of Sindh v. Fahad Naseem, 2002 PCr.LJ 1765 was referred to and the learned trial court observed that according to the ratio of this judgment, CD/video and films are document but despite that, the judgment was found distinguishable only for the reason that in the above case certified copy was applied in the midst of trial but another crucial aspect was ignored that this court also made discussion vis- -vis Section 265-C, Cr.P.C.
17. To enjoy the protection of law and to be treated in accordance with the law is inalienable right of every citizen of Pakistan under Article 4 of our Constitution and under Article 10-A, the right to fair trial is a fundamental right of a person. The trial court refused to supply the copy of CD and USB which is not only against the mandate and command of Articles 4 and 10-A of our Constitution but also in violation of norms of administration of criminal justice. Much emphasis was made in the impugned order that manuscript of CD and USB may be provided and after recording evidence of both the parties, the CD and USB will be played and watched in the open court when the accused may note down and in case of any discrepancy may file the objections for consideration of court and court can pass any appropriate order for deciding objection or may consider the objection at the time of writing judgment. In our view such findings are perverse and misconstrued. Quite the reverse, we are of the view that once the typed/written transcripts of CD and USB are allowed to the applicant/accused by the trial court then it has become his more fervent and stringent inalienable and incontrovertible right to get the copies of CD and USB for his defence. Unless he is supplied the copies, he would not be in a position to compare the recorded version/statements with the transcripts and make out his defence if any. Denial of this amounts to dearth and scarcity of right to a fair trial. After close of evidence there would be no logical justification to play the data of CD and USB in open court which is also alien and foreign to the criminal procedure code and or the provisions of ATA 1997. Such so called and self-styled procedure will not only prolong and delay the trial but tantamount to invite complications and impediment. To be more precise, such type of unique procedures may have the tendency to damage the prosecution case. Even for a moment, this procedure is accepted what would be the net effect? Whether the trial court on the objections of the accused will recall the witnesses for their re-examination or cross examination? What would be the effect of Section 342 Cr.P.C which mandates that all incriminating evidence should be confronted to the accused while recording his statement. No substantial or conceivable rationale is given in the impugned order to deny the copy of CD and USB except the alleged chance of manipulation and alteration which is in our view not possible when the copies of CD and USB will be provided by the court and copies of which are already available with the prosecution and the complainant. The learned trial court has further observed in the impugned order that as per prosecution, confessional statements of the accused (Sikandar Ali Lashari) before police officer and telephonic conversation of lady P.w Mst. Keenjar daughter of Sikandar Ali Lashari said to have been recorded but at the same time it is also mentioned in the order that Mst.Keenjar is not PW in the case. We have noted that in the charge sheet it is stated by the police that during remand, accused Sikandar Ali Lashari made some important disclosures which was visually recorded in CD/USB, whereas the trial court in the impugned order referred to a confessional statement of the said accused. We do not want to make any comment on merits of the case which is the province and dominion of the trial court but we are profusely conscious and mindful to the provisions of Section 21H of the Anti-Terrorism Act 1997 which provides conditional admissibility of confession, however, the parameters and procedure of recording such confessional statement is couched in the Section itself with the memorandum of District Superintendent of police at the foot of such statement. We are also sanguine to the distinction laid down by the legislature itself between the two confessions one which is recorded under Section 164, Cr.P.C. by the magistrate and the confession recorded with its conditional admissibility under Section 21H of ATA 1997 by the District Superintendent of Police. Be that as it may, the purview of Section 265-C Cr.P.C is not confined to the supply of statements of witnesses alone but includes FIR, police report, the inspection note recorded by I.O and the note recorded by I.O on the recoveries made. The report submitted under Section 173 Cr.P.C refers to one red colour USB and four compact discs with description of part one and part two along with details of data which means that the prosecution has gathered and stored substantial evidence in support of their case. Much reliance has been made on the evidentiary value of CD and USB in the police report and prosecution rests on the recorded audio and video text of CD and USB also, therefore, in our view the copies of CD and USB should be supplied to the applicant/accused which is his statutory right so that he may know the prosecution case before he is sent up to stand for trial. It would be expedient to cite the judgment of the Supreme Court rendered in the case of Shahbaz Masih, (2007 SCMR 1631) in which the apex court held that obligatory supply of documents mentioned under Section 265-C Cr.P.C well in advance apparently was with no purpose other than to enable the accused to know the prosecution case and meet the charges if framed other-wise it would lapse into unconscionable consequences.
18. In the wake of above discussion, the impugned order dated 13.12.2014 is set aside. The learned trial court is directed to supply the copies of CD and USB to the applicant in compliance of the provisions of Section 265-C Criminal Procedure Code. Our findings are based on specific legal question raised before us through this revision application which will not affect the merits of the case. The Revision Application is disposed of.
HBT/S-46/SindhApplication allowed.
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