How to submit video evidence in civil court| how to submit audio and video recording as evidence in court | Audio & Video Process of submission Audio and video tape | how to prove in court of law
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| How to submit audio and video in court of law |
In these days the every where people making the videos and audio to use as a evidence in court of law. But they don't know how to prove the audio and video in court of law.
The following judgement is the procedure of submission of the video and audio in court of law.
Other wise your audio or video have not any legal status.
First of all the person who makes the video or audio, will be present in the court and submit himself the audio and the court also record his statement.
And the 2nd thing is this safe custody of the tape is compulsory
And fransic test is compulsory of the said tape.
And all the process honorable high court explain in the following judgement should be adopt
This is the latest judgement on the topic
For more information call or Whatsapp
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H C J D A 38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT LAHORE,
LAHORE
JUDICIAL DEPARTMENT
Crl. Misc. No.61551-M of 2022
Rana Muhammad Yousaf Khan Advocate v. The State, etc.
Date of hearing
08.12.2022
Petitioner by:
Petitioner in person.
Respondent
No.2 by:
Rana Shahid Mehmood Khan,
Advocate for respondent No.2.
State by:
Mr. Tariq Siddique, Additional
Prosecutor General and Mr.
Muhammad Naveed Umer Bhatti,
Deputy Prosecutor General.
MUHAMMAD WAHEED KHAN, J.- By
invoking inherent jurisdiction of this Court in terms of
Section 561-A Cr.P.C., the petitioner/accused Rana
Muhammad Yousaf Khan, Advocate has challenged the
vires of order dated 16.04.2022 passed by the learned
Magistrate Section 30, Gojra (respondent No.4), wherein,
application filed by the petitioner under Section 249-A of
Code of Criminal Procedure, 1898 (Cr.P.C) was turned
down and order dated 15.08.2022, whereby, Criminal
Revision filed against the order dated 16.04.2022 was
dismissed by the learned Additional Sessions Judge, Gojra,
District T.T.Singh, (respondent No.3), who upheld the
order of learned Judicial Magistrate.
2.
Complainant namely, Sheikh Abdul Waheed
(respondent No.2), lodged F.I.R No. 877/2020 dated
Cr. Misc. No.61551-M of 2022
2
17.10.2020 under Section 25-D of the Telegraph Act 1885,
at Police Station, City Gojra, District T.T.Singh against the
petitioner and the trial of above said case is pending
adjudication before the Court of first instance and during
trial proceedings petitioner filed an application u/s 249-A
Cr.P.C. for his acquittal but said forum dismissed his
application vide order dated 16.04.2022. Said decision was
challenged by the petitioner before the learned Additional
Sessions Judge, Gojra, by filing Criminal Revision Petition
which also met with the same fate vide order dated
15.08.2022.
3.
Learned counsel for the petitioner is not available
today but the petitioner present in Court, who is also an
advocate, submits that he is ready to advance arguments
himself. In support of this petition, the petitioner contends
that except one Compact Disc (CD) of a Call Data which
was allegedly procured by the Police vide recovery memo
dated 19.11.2020, the prosecution is not equipped with any
other incriminating material/evidence on record. During
the course of investigation, neither the mobile phone of the
accused/petitioner from which the call was allegedly made
nor the mobile phone of the complainant was taken into
possession by the investigating agency. As far as the
recovery of Compact Disc (CD) is concerned, the same
was produced before the Police by one of the prosecution
witness namely, Kamran son of Muhammad Ashgar and
admittedly, no forensic report qua the veracity and
genuineness of said C.D is available on record. Similarly,
co-accused persons namely Hafiz Muhammad Shafiq and
Mst. Ghazala Bibi were declared innocent by the Police
and their innocence by the Police has not been challenged
by the complainant at any Higher Forum of Police
Cr. Misc. No.61551-M of 2022
3
hierarchy; petitioner lastly submits that since the charge
against him is groundless and there is no probability of his
conviction in any manner, so, by accepting instant petition,
he be acquitted of the charge.
4.
On the other hand, learned Law Officer assisted by
the learned counsel for the complainant has candidly
admitted that except Compact Disc (CD) the memo of
which is annexed with this petition at Page No.36, there is
no other incriminating evidence available with the
prosecution and also admitted that said C.D has not been
forensically got analyzed/tested by the Police. It was
further apprised to the Court that report u/s 173 Cr.P.C.
against the petitioner is pending adjudication for the last
about two years in which not a single witness has been
recorded by the prosecution so far.
5.
I have heard the petitioner in person as well as
learned Law Officer assisted by learned counsel for the
complainant and have gone through the available record
with their assistance and noticed that petitioner had
basically sought his acquittal from the learned Trial Court
u/s 249-A Cr.P.C. For ready reference Section 249-A is
reproduced as under:-
249-A. Power of Magistrate to acquit accused at
any stage: Nothing in this Chapter shall be deemed
to prevent a Magistrate from acquitting an accused
at any stage of the case if after hearing the
prosecutor and the accused and for reasons to be
recorded, he considers that the charge is groundless
or that there is no probability of the accused being
convicted of any offence.
On going through the above provision of law, it is clear
that no embargo has been imposed upon the accused to file
such application seeking his acquittal at any stage of the
Cr. Misc. No.61551-M of 2022
5
MIRZA and 2 others versus FEDERATION OF PAKISTAN
and others” (PLD 2019 Supreme Court 675), has laid
down the following criteria regarding admissibility of an
audio tape or video in evidence before a Court of law and
the mode and manner of proving same before the Court:
(i)
No audio tape or video could be relied upon by a
court until the same was proved to be genuine and not
tampered with or doctored.
(ii)
A forensic report prepared by an analyst of the
Provincial Forensic Science Agency in respect of an
audio tape or video was per se admissible in evidence
in view of the provisions of section 9(3) of the Punjab
Forensic Science Agency Act, 2007.
(iii)
Under Article 164 of the Qanun-e-Shahadat Order,
1984 it laid in the discretion of a court to allow any
evidence become available through an audio tape or
video to be produced.
(iv)
Even where a court allowed an audio tape or video to
be produced in evidence, such audio tape or video
had to be provided in accordance with the law of
evidence.
(v)
Accuracy of the recording must be proved and
satisfactory evidence, direct or circumstantial, had to
be produced so as to rule out any possibility of
tampering with the record.
(vi)
An audio tape or video sought to be produced in
evidence must be the actual record of the
conversation as and when it was made or of the event
as and when it took place.
(vii)
The person recording the conversation or event had
to be produced.
(viii) The person recording the conversation or event must
produce the audio tape or video himself.
(ix)
The audio tape or video must be played in the Court.
(x)
An audio tape or video produced before a court as
evidence ought to be clearly audible or viewable.
(xi)
The person recording the conversation or event must
identify the voice of the person speaking or the person
seen or the voice or person seen may be
Cr. Misc. No.61551-M of 2022
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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 265-
K Cr.P.C available to the learned Trial Court are similar to
powers of High Court u/s 561-A of Cr.P.C.
6.
As observed in this case, the charge against the
petitioner was that he extended threats of dire
consequences from his cell No.0302-7004605 at the
mobile phone of complainant 0309-9107899 but
admittedly, neither cell phone or its Subscriber Identity
Module (SIM) nor the mobile phone of the complainant
was taken into possession by the Investigating Agency
during the course of investigation. Sole reliance of the
prosecution in this case is, on the audio C.D allegedly
prepared by above said Kamran. The relevant provision
regarding evidence prepared through modern devices is
Article 164 of QANUN-E-SHAHADAT ORDER, 1984
which is reproduced for ready reference;-
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.
However, in the light of Article 164 supra the august
Supreme Court of Pakistan in case of “ISHTIAQ AHMED
identified by
any other person who recognized such voice or
person.
(xii)
Any other person present at the time of making of the
conversation or taking place of the event may also
testify in support of the conversation heard in the
audio tape or the event shown in the video.
(xiii) The voices recorded or the persons shown must be
properly identified.
(xiv)
The evidence sought to be produced through an audio
tape or video had to be relevant to the controversy
and otherwise admissible
Misc. No.61551-M of 2022
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(xv)
Safe custody of the audio tape or video after its
preparation till production before the court must be
proved.
(xvi)
The transcript of the audio tape or video must have
been prepared under independent supervision and
control.
(xvii) The person recording an audio tape or video may be
a person whose part of routine duties was recording
of an audio tape or video and he should not be a
person who has recorded the audio tape or video for
the purpose of laying a trap to procure evidence.
(xviii) The source of an audio tape or video becoming
available had to be disclosed.
(xix)
The date of acquiring the audio tape or video by the
person producing it before the Court ought to be
disclosed by such person.
(xx)
An audio tape or video produced at a late stage of a
judicial proceeding may be looked at with suspicion.
(xxi)
A formal application had to be filed before the Court
by the person desiring an audio tape or video to be
brought on the record of the case as evidence.
In another celebrated judgment of the august Supreme
Court of Pakistan in case of “Member (Administration),
Federal Board of Revenue and others versus Mian Khan”
(PLD 2021 SCMR 1077), the Apex Court through its
esteemed judgment has observed as following:-
“It is an admitted fact that no regular inquiry was conducted
by the petitioner Department and the same was dispensed
with on the ground that the other evidence in the shape of
CCTV footage is so authentic that major penalty can be
imposed upon the respondent in the absence of regular
inquiry and while imposing the major penalty CCTV footage
was made the sole criterion to proceed against the
respondent. It is an apathy that the said CCTV footage was
never sent to the office of Forensic Science Laboratory for its
authenticity. In the absence of any forensic report qua the
authenticity of the CCTV footage, the same cannot be
considered a legal basis for proceeding against a person. In
the case of Ishtiaq Ahmed Mirza v. Federation of Pakistan
(PLD 2019 SC 675) this Court has held that with the
advancement of science and technology, it is now possible to
get a forensic examination, audit or test conducted through
an appropriate laboratory so as to get it ascertained as to
whether an audio tape or a video is genuine or not and as
such or video has been edited, doctored or tampered with or
not because advancement of science and technology has also
made it very convenient and easy to edit, doctor, superimpose
or Photoshop a voice or picture in an audio tape or video,
therefore, without a forensic examination, audit or test, it is
becoming more and more unsafe to rely upon the same as a
piece of evidence in a court of law. We have noticed that the
Cr. Misc. No.61551-M of 2022
7
CCTV footage was even not produced before the learned
Federal Service Tribunal. Even otherwise, mere producing of
CCTV footage as a piece of evidence without any forensic
test is not sufficient to be relied upon unless and until
corroborated and proved to be genuine. The passengers, who
allegedly gave the bribe, had also not been associated with
the departmental proceedings. No question of law of public
importance within the meaning of Article 212(3) of the
Constitution of Islamic Republic of Pakistan, 1973, has been
raised either in this petition to warrant interference by this
Court.
7.
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.
Cr. Misc. No.61551-M of 2022
8
8.
The other aspect of the case is that according to the
contents of F.I.R, co-accused Hafiz Muhammad Shafiq,
clerk of accused Muhammad Yousaf, Advocate, also
allegedly extended threats of dire consequences to the
complainant by using his mobile Phone No.0300-6683182.
Similarly, co-accused Mst. Ghazala also extended threats
and also called his name/abused the complainant. These
two co-accused persons were declared as innocent by the
Police and learned Law Officer assisted by learned counsel
for the complainant frankly, admitted that these findings of
the Police had never been challenged by the complainant at
any higher forum of Police hierarchy.
9.
So, for the reasons discussed supra, it is manifestly
clear that the charges levelled against the petitioner by
respondent No.2 Sheikh Abdul Waheed are groundless and
analyzing and viewing the incriminating evidence/material,
allegedly with which prosecution is equipped, there is no
probability of the petitioner/accused being convicted. Now
if the trial is allowed to proceed further that would be
travesty of justice, sheer mis-use of process of law and
wastage of precious time of Court as the petitioner has
already suffered rigours and agony of protracted
investigation and trial, since lodging of the F.I.R in
question, which had been lodged on 17.10.2020.
Resultantly, while exercising inherent jurisdiction
conferred upon this Court u/s 561-A Cr.P.C, this petition is
allowed and the order of the learned Magistrate dated
16.04.2022 to the extent of dismissing the application of
the petitioner under Section 249-A Cr.P.C and judgment
dated 15.08.2022 of the learned Additional Sessions Judge,
Gojra, District T.T.Singh in Criminal Revision Petition
Cr. Misc. No.61551-M of 2022
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set aside and petition filed by the petitioner u/s 249-A
Cr.P.C is allowed and trial proceedings before learned
Trial Court are hereby quashed and the petitioner
Muhammad Yousaf is acquitted of the charge.
(MUHAMMAD WAHEED KHAN)
JUDGE
This case was heard on 08.12.2022 and reserved. Today i.e.
13.01.2023, it has been announced in open Court.
JUDGE
Approved for reporting
JUDGE
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