PLJ 2023 Cr.C. 320
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 139--Evidence as to matters in writing--Video clips, tapes and photographs--‘Res ipsa liquitor’--There is no cavil to 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 permission and sanction of law to bring on record evidence if it is in form of document--The above Article in light of illustration therein authorizes 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 requirement of an emerging need of evidence in a particular situation for purpose of corroboration to fortify or strengthen deposition; even otherwise best evidence rule says that documentary evidence runs over or defeats oral evidence under maxim “res ipsa liquitor”--The complainant and victim have already stated before Court about whole episode of crime, therefore, video evidence of such episode can be used as support to their statements for purpose of corroboration. [P. 325] A & B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 2(e)--Electronic document--An audio/video clip including snaps/photographs (in digital form) as evidence maintains a dual character in 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 senses that ‘information’ contained therein are evidence of facts, and oral account of which is to be presented through words of a witness and not document alone, while as material thing it is to be produced for inspection of Court--Electronic document though is not defined in Qanun-e-Shahadat Order, 1984 but it speaks in Article 2(e) that expression “automated”, “electronic”, “information”, “information system”, electronic document”, “electronic signature”, “advance electronic signature”, and “security procedure” shall bear meanings given in Electronic Transaction Ordinance, 2002--Whereas Electronic Transaction Ordinance defines words “electronic”, “electronic document”, and “information”. [Pp. 325 & 326] C
Punjab Forensic Science Agency Act, 2007 (XIII of 2007)--
----S. 9--Digital form--Admissibility of evidence--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 Court to prove ‘information’ contained in it as evidence of facts recorded therein--For placing information on record such facts need to be spoken through mouth of a witness who had recorded or watched it and, in such situation, it could only be produced or exhibited in statement of such witness--Bringing on record such clip through statement of complainant and victim in this case to depose about information contained therein fact by fact while playing video clip in Court is supported by dictum laid down by Honourable Supreme Court.
[P. 326] D
PLD 2019 SC 675.
Evidence--
----Evidence in form of audio/video clip/snap as material thing/real evidence would only be exhibited and produced for inspection of Court in statement of an investigating officer who has collected it during course of investigation albeit through secondary evidence as well--It shall be accepted and used as evidence if it confirms to requirement and standards. [P. 327] E
PLD 2019 SC 675.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 265(c)--Statement of witness--Audio, video clip evidence--Framing of charge-- 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 principles of fair trial and due process--Counsels for defence have asserted that it could have been done u/S. 265-C, Cr.P.C. before 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 stage precedes framing of charge--Confronting such situation, serious considerations were given to thought of learned defence counsels and re-tracked 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 accused u/S. 265-C, Cr.P.C.-- Before that such process was being regulated u/S. 162, Cr.P.C. with touch that statements before police cannot be used as evidence for purpose stated therein until copies thereof are provided to accused--Such section is still in existence and has not been omitted which caters to situation like in present case--As forensic evidence in this case was collected during investigation process, therefore, does fall in categories of statements mentioned in Section 162, Cr.P.C. and can safely be provided copies thereof at any stage of proceedings if statement/evidence is essential for just decision of case.
[Pp. 327 & 328] F & G
2016 MLD 25.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 162, 164 & 165--Admissible evidence--If such evidence is being regulated u/S. 162, Cr.P.C. then it cannot be used by 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 basis of such evidence may be lawful, and Qanun-e-Shahadat Order, 1984 has an overriding effect as per Article 165 therein. [P. 328] H
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 376(ii) & 509--Conviction and sentence--Challenge to--A video containing some evidence relating to episode of crime and snaps showing acts of accused persons/appellants were generated from all phone of accused--ase be remanded to trial Court for purpose of bringing on record cited forensic evidence (video/snaps) in accordance with law, therefore, it is directed that trial Court shall call an expert before Court who shall prepare required copies of such video evidence/ snaps etc. which shall be handed over to 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 Court with strict moral standards and in camera only in presence of counsels for parties and relevant witnesses so as to face any cross-examination to facts/information contained in such forensic evidence--Once this process is completed, evidence so recorded and tendered shall be put to 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--Appeals in hand are disposed of and case is remanded for limited purpose cited above; learned trial Court shall complete process of recording of such evidence as early as possible but not later than four months keeping in view dictum laid down by Hon’ble Supreme Court of Pakistan in Ish ti aq Ah ma d Mirz a ‘s case, supra and after hearing both parties shall decide case afresh on basis of entire evidence including recorded earlier--During this process, accused/appellants shall remain behind bars as under trial prisoners. [P. 328] I
Mr. James Joseph, Advocate for Appellant (in Crl. A. No. 364/2020).
Mr. Zohaib Hassan, Advocate for Appellant (in Crl. A. No. 380/2020).
Malik Naseer Ahmad Thaheem, Shafqat Raza Thaheem and Syed Atif Moazam Bukhari, Advocates for Appellant (in Crl. A. No. 382/2020).
Malik Muhammad Saleem, Advocate for Appellant (in Crl. A. No. 407/2020).
Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.
Mr. Muhammad Shahbaz Khan, Advocate for Complainant.
Date of hearing: 19.10.2022.
PLJ 2023 Cr.C. 320
[Lahore High Court, Multan Bench]
Present: Muhammad Amjad Rafiq, J.
NUMAN alias NOMI and others--Appellants
versus
STATE etc.--Respondents
Crl. A. Nos. 364, 380, 382 & 407 of 2020, heard on 19.10.2022.
Judgment
Numan, Asif, Awais and Muhammad Akbar faced trial before learned Additional Sessions Judge, Multan in case FIR No. 360 dated 27.05.2018 under Sections 376(ii)/509, PPC registered at Police Station Gulgashat, Multan and on conclusion of trial vide judgment dated 24.08.2020, all four were variously convicted and respectively sentenced as given in the judgment of the learned trial Court.
2. During hearing of the appeals it came to notice that a video containing some evidence relating to episode of crime and snaps showing acts of accused persons/appellants were generated from the cell phone of accused by expert of PFSA and Report Exh. PP/1-17 is available in the record. The video & snaps were also exhibited in the evidence through the statement of investigating officer PW-7 in the form of DVD-P25 which though was not played or shown in the Court nor copy of it was given to the accused/appellants yet were put to them in their statements u/S. 342, Cr.P.C., learned trial Court has also given space and consideration to such evidence in the judgment and relied upon while formulating opinion about guilt of accused/appellants.
3. A technical glitch in a trial process, spoken and defended by the adversaries was claimed as improper admission of forensic evidence urging a ground for limited de novo trial though offered an alternative to accept or reject that evidence by this Court with a conditional consent of parties that if evidence is accepted, it cannot solely help to pass conviction because substantive evidence was claimed as shaky and uncredible whereas other side foresee such evidence as strong forensic support to substantive evidence for a complete picture of a barbaric crime (gang rape), committed through masculine aggression against the victim, a helpless and vulnerable class, but in that eventuality admissibility of forensic evidence is expected to be compromised because it has been brought on record against the law and principles of evidence. The consent of the parties cannot supply jurisdiction to the Court save provided under the law. This Court is mindful of Article 162 of Qanun-e-Shahadat, 1984 that no new trial is required for improper admission or rejection of evidence but exception in that Article support the present scenario of the case. Even otherwise parties should not be suffered due to the act of Court is also a celebrated principle of jurisprudence.
4. Defence proponents’ theory regarded de novo trial as a premium to fill the lacunae whereas prosecution staunch response supported the concept because evidence with full protocols is already there but has not been brought on record properly.
5. Heard the proponents and the opponents’ stances, looked into the relevant law provisions and precedents; record and evidence perusal requires that principles for presentation of such types of evidence during the trial should be highlighted first.
6. 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 here in following provision of Qanun-e-Shahadat Order, 1984:-
139. Evidence as to matters in writing: Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation: A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration The question is, whether A assaulted B. C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant, as showing A’s motive for the assault, and evidence may be given of it though no other evidence is given about the letter.
The above 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.
7. 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 Qanun-e-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. Whereas Electronic Transaction Ordinance defines words “electronic”, “electronic document”, and “information” in following terms:
(l) “electronic” includes electrical, digital, magnetic, optical, biometric, electrochemical, wireless or electromagnetic technology;
(m) “electronic document” includes documents, records, information, communications or transactions in electronic form;
(o) “information” includes text, message, data, voice, sound, database, video, signals, software, computer programs, codes including object code and source code:-
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 non-tempered 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.
8. The second status of such audio/video clips/snaps is of material thing (physical evidence) or real evidence which is produced for the inspection of Court. The status of tapes, photographs, films etc. as real evidence has well been explained in para 19.22 at page 531 of a book “Murphy on EVIDENCE” by Peter Murphy, 6th edition with following observations;
“Although in modern law visual and audio recordings may be regarded as documents, at least for some purposes they have a further, important potential to supply matter of evidential value, because of the possibility of direct perception. A tape or film may yield detail and nuances over and above the mere text of matters recorded therein. Some detail of the circumstances of the recording, some visible characteristics, some inflexion of the voice may put a different complexion on the recorded matter, as compared with a mere transcript of the words spoken or the things done. The sound or accent of a voice, the physical appearance of a thing or person may resolve some ambiguity or clothe with meaning some unexplained passage in the text. The recordings are, therefore, to that extent real evidence and often have an effect similar to a view or the production of a material object. To the extent that recordings are admissible as real evidence, it is no objection to admissibility that the evidence is meant to, and does in fact, convey information because it is offered for direct observation by the Court, and not as a species of hearsay.”
In our system such evidence is admissible as per following proviso to Article 71 of The Order:
Provided further that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection:
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. as held in case reported as “Nazim Ali versus Additional Sessions Judge and others” (2016 MLD 25). 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-e-Shahadat Order, 1984 has an overriding effect as per Article 165 therein.
10. While concluding above discussion, it is essential that case be remanded to learned trial Court for the purpose of bringing on record the cited forensic evidence (video/snaps) in accordance with law, therefore, it is 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. Appeals in hand are disposed of and case is remanded for the limited purpose cited above; learned trial Court shall complete the process of recording of such evidence as early as possible but not later than four months keeping in view the dictum laid down by the Hon’ble Supreme Court of Pakistan in Ishtiaq Ahmad Mirza’s case, supra and after hearing both the parties shall decide the case afresh on the basis of entire evidence including recorded earlier. During this process, the accused/appellants shall remain behind the bars as under trial prisoners.
(A.A.K.) Appeals disposed of
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