There is no cavil to the proposition that video evidence, tapes, snaps/photographs made available due to forensic techniques are regarded as documentary evidence though in electronic or digital form, therefore, principles of evidence relating to admissibility of documents are fully applicable on such forensic evidence. What is the permission and sanction of law to bring on record evidence if it is in the form of document; response is in provision of Aft.139 Qanun-e-Shahadat Order, 1984.
This Article in the light of illustration therein authorizes the court to ask, when any witness is making statement about a fact, to support his contention with any document if such fact is incorporated therein. The room for such discretion of court is obviously reflective of foresighted wisdom of legislature to cater to the requirement of an emerging need of evidence in a particular situation for the purpose of corroboration to fortify or strengthen the deposition; even otherwise best evidence rule says that documentary evidence runs over or defeats the oral evidence under the maxim “res ipsa liquitor”. The complainant and victim have already stated before the court about whole episode of crime, therefore, video evidence of such episode can be used as support to their statements for the purpose of corroboration.
An audio/video clip including snaps/photographs (in digital form) as evidence maintains a dual character in the law of evidence; it is termed as electronic document as well as a material thing (physical evidence), also known as real evidence. Electronic document in the senses that ‘information’ contained therein are the evidence of facts, and oral account of which is to be presented through the words of a witness and not the document alone, while as material thing it is to be produced for the inspection of court. Electronic document though is not defined in Qanune-Shahadat Order, 1984 but it speaks in Article 2(e) that the expression “automated”, “electronic”, “information”, “information system”, electronic document”, “electronic signature”, “advance electronic signature”, and “security procedure” shall bear the meanings given in the Electronic Transaction Ordinance, 2002.
An audio/video clip including snaps/photographs (in digital form) is treated as digital evidence and it does carry information that includes expression, gestures, voice and video as defined above; therefore, such clips/snaps are sought to be produced before the court to prove the ‘information’ contained in it as evidence of facts recorded therein. For placing the information on the record such facts need to be spoken through the mouth of a witness who had recorded or watched it and, in such situation, it could only be produced or exhibited in the statement of such witness. Bringing on record such clip through the statement of complainant and the victim in this case to depose about the information contained therein fact by fact while playing the video clip in the court is supported by dictum laid down by Honourable Supreme Court in case reported as “ISHTIAQ AHMED MIRZA and 2 others versus FEDERATION OF PAKISTAN and others” (PLD 2019 Supreme Court 675) particularly when such video clip/snaps are certified as nontempered and non-edited, generated by the experts of Punjab Forensic Science Agency through a cell phone recovered from the accused as per PFSA report. Such report is per se admissible pursuant to section 9 of Punjab Forensic Science Agency Act, 2007.
In our system such evidence is admissible as per proviso to Article 71 of The Order Evidence in the form of audio/video clip/snap as material thing/real evidence would only be exhibited and produced for the inspection of court in the statement of an investigating officer who has collected it during the course of investigation albeit through secondary evidence as well. It shall be accepted and used as evidence if it confirms to the requirement and standards as highlighted in a case reported as Ishtiaq Ahmed Mirza (PLD 2019 Supreme Court 675) Supra, which standard is apparently available in this case. 9. It is trite that before using such evidence in any form i.e., as document or as material thing/real evidence, copy of it must be supplied to accused to avoid using it as surprise evidence which is against the principles of fair trial and due process. Learned counsels for defence have asserted that it could have been done u/s 265-C Cr.P.C. before the framing of charge which stage has been passed. Giving permission to bring on record such video evidence/snaps for a limited de novo trial would amount to a complete retrial from the stage precedes framing of charge. Confronting such situation, serious considerations were given to thought of learned defence counsels and re-tracked the relevant provisions of law in this respect. It is trite that every statement of a witness contains information and such information are regarded as evidence, therefore, every information contained in audio/video clip, tapes, photographs, films etc. are also statements in documentary form which are required to be given to the accused u/s 265-C Cr.P.C.
Section 265-C is part of Chapter XXII-A of Cr.P.C. which was inserted through Law Reforms Ordinance, 1972. Before that such process was being regulated u/s 162 Cr.P.C. with the touch that statements before police cannot be used as evidence for the purpose stated therein until copies thereof are provided to the accused. Such section is still in existence and has not been omitted which caters to the situation like in the present case. As the forensic evidence in this case was collected during investigation process, therefore, does fall in the categories of statements mentioned in section 162 Cr.P.C. and can safely be provided copies thereof at any stage of the proceedings if the statement/evidence is essential for just decision of the case. It was questioned that if such evidence is being regulated u/s 162 Cr.P.C. then it cannot be used by the prosecution as per bar contained in such section; suffice it to say that evidence made available through modern devices and forensic techniques has a special status under Article 164 of Qanun-e-Shahadat Order, 1984 because proviso to such Article inserted in year 2017 states that conviction on the basis of such evidence may be lawful, and Qanun-eShahadat Order, 1984 has an overriding effect as per Article 165 therein.
Lahore High Court remanded the case to the trial court for the purpose of bringing on record the cited forensic evidence (video/snaps) in accordance with law, and directed that the learned trial court shall call an expert before the court who shall prepare required copies of such video evidence/ snaps etc. which shall be handed over to the accused persons with surety that it may not be misused and time may also be given to them for preparation of their defence. Thereafter such video clips/snaps shall be exhibited and played in the court with strict moral standards and in camera only in the presence of counsels for the parties and relevant witnesses so as to face any cross-examination to facts/information contained in such forensic evidence. Once this process is completed, the evidence so recorded and tendered shall be put to the accused in their statements u/s section 342 Cr.P.C for an explanation if intended to be used against them for judgment in this case.
Crl. Appeal-Against Conviction-PPC
364-20
NOMAN @ NOMI VS
STATE ETC
Mr. Justice Muhammad Amjad Rafiq
19-10-2022
2022 LHC 7201
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