“Mere production of CDR DATA without transcripts of the calls or end to end audio recording cannot be considered/used as evidence worth reliance. Besides the call transcripts, it should also be established on the record that callers on both the ends were the same persons whose calls data is being used in evidence.”
Dictum laid down in Azeem Khan supra, in Para No. 22, in addition to aforementioned requirement, also makes it compulsory for prosecution to produce the competent witness who provides CDR to investigating agency. Such CDR should conclusively show that mobile phone used in the occurrence is owned by the accused and should also show the location from where calls were made. CDR available on the record neither shows that mobile number used for demand of ransom amount was owned by any of the appellants nor competent witness who generated such record and provided to investigating agency was produced before the learned trial Court. In view of what has been discussed above, we are compelled to hold that CDR, as tendered by the prosecution, did not advance its case and evidentiary value of such record is next to nothing being inconclusive.
Joint identification without attributing any role to accused is of no evidentiary value.
The purpose of the identification parade is to find out whether accused is the actual perpetrator of the crime in question. It is essential where the name of the offender is not known to those who claim to be eyewitnesses of the crime, but they state that although they did not know the offender earlier, they could recall his facial features, physique and age in sufficient detail and would also be able to identify him if and when that accused is brought before them again. The purpose of prior TIP is to test and strengthen the veracity of eye-witnesses. Such TIP is beneficial, for both, the accused and the investigating agency. It enables the Investigating Officer to determine whether the witnesses had actually witnessed the perpetrator of the crime and test their capacity to identify him and thereby to exonerate the accused or implicate him on the strength of incriminatory evidence in shape of TIP. TIP is merely corroborative in nature 17. The substantive evidence is the evidence of identification by witness in court and the TIP provides corroboration to the identification of the accused in court.
TIP is only considered as corroborative piece of evidence. Justice M. Monir in his celebrated book ‘Law of Evidence’ writes that ‘the test identification is considered as safe rule of prudence for corroboration. Though the holding of the identification parade may not be substantive evidence, yet such parades are used for corroboration purposes in order to believe or not the involvement of the persons brought before the Court for the commission of the crime.
Competence of a child witness must be determined by the trial court after applying "Rationality Test"
Non-production of minor/kidnapee as a witness
. The minor, who was allegedly kidnapped, did not appear as a witness before the trial court. Non-production of kidnapped child before the trial court, casts a serious doubt on the prosecution version. A child, irrespective of his age, is competent to appear as a witness before the trial court, subject to his fulfilling the conditions precedent provided under Articles 3 and 17 of the Qanun-e-Shahadat, 1984. Prosecution should have produced the minor allegedly kidnapped in this case and it was the trial court to determine his competence to be a witness after applying the ‘rationality test’.
Crl. Appeal-Against Conviction-ATA
51-18
JAMSHED @ BABLU VS STATE ETCMr. Justice Ali Zia Bajwa
17-02-2022
2022 LHC 1910
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