mistakes in handling forensic evidence—videos and photos weren't shown in court or given to the accused. Legal standards for evidence weren't followed, leading to a new trial to correct errors and ensure fairness under judicial oversight.

اس کیس کو لاہور ہائی کورٹ، ملتان بنچ نے کئی وجوہات کی بنا پر ریمانڈ دیا تھا جیسا کہ فیصلے میں تفصیل ہے:

1. **فورنزک شواہد کا غلط داخلہ**: اپیل کے عمل کے دوران، یہ بات سامنے آئی کہ اپیل کنندگان کے موبائل فون سے حاصل کردہ ویڈیو اور فوٹو گرافی کے شواہد، جن کا پنجاب فرانزک سائنس ایجنسی (PFSA) نے تجزیہ کیا، کو صحیح طریقے سے تسلیم نہیں کیا گیا تھا۔ اور قانونی طریقہ کار کے مطابق ہینڈل کیا جاتا ہے۔ ثبوت عدالت میں نہیں چلائے گئے اور نہ ہی دکھائے گئے اور نہ ہی ملزمان کو نقول فراہم کی گئیں جس سے انصاف اور مناسب عمل کے بارے میں خدشات پیدا ہوئے۔

2. **قانونی اصول اور منصفانہ ٹرائل**: عدالت نے تسلیم کیا کہ ویڈیو اور فوٹو گرافی کے ثبوت، اگرچہ اہم ہیں، قابل قبولیت کے لیے سخت قانونی معیارات پر عمل پیرا ہونا ضروری ہے۔ اس میں ملزمان کو اپنے دفاع کے لیے نقول فراہم کرنا بھی شامل ہے، جو اس کیس میں نہیں کیا گیا تھا۔

3. **ڈی نوو ٹرائل**: ان طریقہ کار کی خامیوں کو دور کرنے اور منصفانہ ٹرائل کو یقینی بنانے کے لیے، لاہور ہائی کورٹ نے کیس کو ٹرائل کورٹ کے حوالے کر دیا۔ یہ ریمانڈ ایک محدود ڈی نوو ٹرائل کرنے کے مقصد سے تھا، خاص طور پر قانون کے مطابق فرانزک شواہد کو مناسب طریقے سے متعارف کرانے اور ان کو سنبھالنے کے لیے۔

4. **عدالتی نگرانی**: عدالت نے انصاف اور منصفانہ ٹرائل کے اصولوں کو برقرار رکھنے کے لیے قانونی طریقہ کار پر عمل کرنے کی اہمیت پر زور دیا، اس بات کو یقینی بناتے ہوئے کہ فرانزک شواہد سمیت تمام ثبوت پیش کیے جائیں اور ان پر مناسب طریقے سے غور کیا جائے۔

لہذا، ریمانڈ کو طریقہ کار کی غلطیوں کو درست کرنے، ٹرائل کے عمل میں انصاف کو یقینی بنانے، اور پیش کردہ شواہد کی مناسب جانچ اور غور کرنے کی اجازت دینے کا حکم دیا گیا، خاص طور پر PFSA کے ذریعے تجزیہ کردہ ڈیجیٹل ثبوت۔

The case was remanded by the Lahore High Court, Multan Bench for several reasons as detailed in the judgment:

1. **Improper Admission of Forensic Evidence**: During the appeals process, it came to light that video and photographic evidence obtained from the appellants' cell phones, analyzed by the Punjab Forensic Science Agency (PFSA), had not been properly admitted and handled according to legal procedures. The evidence was not played or shown in court, nor were copies provided to the accused, which raised concerns about fairness and due process.

2. **Legal Principles and Fair Trial**: The court recognized that video and photographic evidence, though important, must adhere to strict legal standards for admissibility. This includes providing copies to the accused for their defense, which had not been done in this case.

3. **De Novo Trial**: To rectify these procedural lapses and to ensure a fair trial, the Lahore High Court remanded the case to the trial court. This remand was for the purpose of conducting a limited de novo trial, specifically to properly introduce and handle the forensic evidence in accordance with the law.

4. **Judicial Oversight**: The court emphasized the importance of following legal procedures to uphold the principles of justice and fair trial, ensuring that all evidence, including forensic evidence, is presented and considered properly.

Therefore, the remand was ordered to correct procedural errors, ensure fairness in the trial process, and allow for a proper examination and consideration of the evidence presented, particularly the digital evidence analyzed by PFSA.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN.

(JUDICIAL DEPARTMENT)

CRIMINAL APPEAL No.364/2020.

Numan alias Nomi vs The State

CRIMINAL APPEAL No.380/2020

Asif vs The State

CRIMINAL APPEAL No.382/2020.

Awais vs The State

CRIMINAL APPEAL No.407/2020.

Muhammad Akbar vs The State

JUDGMENT

DATE OF HEARING: 19.10.2022

APPELLANTs BY:

Mr. James Joseph, Advocate for the appellant in

Crl.A.No.364/2020.

Mr. Zohaib Hassan, Advocate for the 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 the

appellant in Crl.A.No.407/2020.

STATE BY:

Mr. Hassan Mehmood Khan Tareen, Deputy

Prosecutor General.

COMPLAINANT BY: Mr. Muhammad Shahbaz Khan, Advocate.

…………………………………………………….

MUHAMMAD AMJAD RAFIQ, J:- 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.

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

Crl.A.No.364/2020, Crl.A.No.380/2020, Crl.A.No.382/2022, Crl.A.No.407/2022.

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.

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.

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.

Heard the proponents and the opponents’ stances, looked into the

relevant law provisions and precedents; record and evidence perusal

Crl.A.No.364/2020, Crl.A.No.380/2020, Crl.A.No.382/2022, Crl.A.No.407/2022.

requires that principles for presentation of such types of evidence during

the trial should be highlighted first.

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,

Crl.A.No.364/2020, Crl.A.No.380/2020, Crl.A.No.382/2022, Crl.A.No.407/2022.

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. Whereas Electronic Transaction

Ordinance defines words “electronic”, “electronic document”, and

“information” in following terms:-

(I)

“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

Crl.A.No.364/2020, Crl.A.No.380/2020, Crl.A.No.382/2022, Crl.A.No.407/2022.

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.

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:-

Crl.A.No.364/2020, Crl.A.No.380/2020, Crl.A.No.382/2022, Crl.A.No.407/2022.

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.

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

Crl.A.No.364/2020, Crl.A.No.380/2020, Crl.A.No.382/2022, Crl.A.No.407/2022.

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.

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,

Crl.A.No.364/2020, Crl.A.No.380/2020, Crl.A.No.382/2022, Crl.A.No.407/2022.

the accused/appellants shall remain behind the bars as under trial

prisoners.

(Muhammad Amjad Rafiq)

Judg

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