No audio tape or video could be relied upon by a court until the same was proved to be genuine and not tempered with or doctored.

2023 LHC 115 

After going through the ‘memo of possession’ of audio C.D, it is noticed that same was prepared by one Kamran, a witness of the case, after copying the audio from the mobile phone of the complainant while pasting the same at the C.D. Since the C.D was prepared after copying the original voice from the mobile phone, it loses its authenticity because the same was not the original device where the voice of the accused was recorded. Moreover, it was not provided by the complainant to the police rather by the afore-said witness after copying the same from the mobile phone of the complainant. Thus, the preparation of this C.D, in any way, does not fulfill the criteria as provided by the Hon’ble Supreme Court of Pakistan in the afore referred judgments. The best course in this case could be that the Police should have taken into possession the mobile phone of the complainant on which the threatening call was received and got it forensically tested after comparing with the voice of the petitioner/accused but this attempt was not made by the Investigating Agency to reach some proper conclusion. In my view, this evidence, i.e, the Compact Disc having audio cannot be used against the petitioner as the same was not prepared/generated in view of the parameters as mentioned above in the afore-referred judgments.

On going through the provision of 249-A CrPC, it is clear that no embargo has been imposed upon the accused to file such application seeking his acquittal at any stage of the case and only certain conditions have been described therein, firstly, that the Court has to give the right of hearing to the prosecutor and the accused and if reaches to the conclusion that the charge against the accused is groundless or there is no probability of accused being convicted of any offence, he shall be acquitted of the charge through an order in which such reasons have to be recorded for reaching to the conclusion that charge(s) against the accused is/are baseless. There is no cavil with the proposition that powers under Sections 249-A and 265K Cr.P.C available to the learned Trial Court are similar to powers of High Court u/s 561-A of Cr.P.C.

Crl. Misc. 61551/22
Rana Muhammad Yousaf Khan Vs The State etc.
Mr. Justice Muhammad Waheed Khan
13-01-2023
2023 LHC 115