2007 PLP 3160 (YLR)

AZIZULLAH M. MEMON, J.

Learned counsel for the appellant, having worked out the case law on the admissibility or otherwise of the visual evidence recorded through the. Video Camera/Cassette has cited Shahid Orakazi v. Pakistan Muslim League (Nawaz Group) and 8 others (2000 SCMR 1969) wherein relevant observations appear at page 2044, which read as under:

"

43. Where the case of contemnor depends wholly or substantially on his identification then the Court should exercise caution while relying on identification simpliciter without supporting evidence. When a visual identification is made after due observation of the video cassettes by the Court in the presence of the accused coupled with oral evidence to support it, the accused though may not be, depending upon the circumstances of each case, convicted on such evidence but if the visual evidence is supported by oral evidence or circumstances which the Court thinks were supportive of identification, the Court can take the same into consideration. In the present case, we find that though the direct evidence brought an record does not conclusively prove that the respondents were actively taking part in the event but admittedly they were present at the scene of occurrence. In this situation, the video cassettes recorded through the direct evidence brought on record does not conclusively prove that the respondents were actively taking part in the event but admittedly they were present at the scene of occurrence. In this situation the video cassettes recorded through the closed circuit cameras installed in the Supreme Court premises showing the- presence of respondents in the Supreme Court premises do furnish a corroborative piece of evidence against them, which can be relied upon the peculiar' circumstances of the case. We are fortified in taking the above view by the case of Collector of Customs v. Saeed-ur-Rehman (PLD 1989 SC 249), wherein video cassettes being the only conclusive evidence viz. ex facie proof of` guilt of civil servant was considered to be sufficient evidence for conviction under the relevant law. It would be advantageous to reproduce relevant passages from the report, which read as under:

"By making these observations the Tribunal has held such evidence to be admissible and also conclusive and sufficient in some cases but not in all. This appears to be a correct statement of the law. While reviewing the finding the Tribunal found that, (i) the only evidence that allegedly involved the appellants. had .disappeared; (ii) objective impressions of -the screening of the files record in a stereotype cyclostyled from that certain person was clearly identified in the recording clearly showing him taking money from some passengers; (in) it is not indicated how many scenes of that nature of each appellant were of each appellant were actually exhibited; (iv) there is no tangible evidence before us (Tribunal) to accept the findings of the Authorized Officer and the Authority. These conclusions could on the facts of the case be drawn by the Service Tribunal. They suffer from no legal infirmity. " " .If the video cassette recorded all the facts necessary to establish the facts required, to be proved then it was the appropriate course. That is a point which was not in controversy what was in controversy was whether the video cassette by itself established those required facts. This could be verified by the Authority and the appellate Authority by viewing them. " "(19) The Service Tribunal was, therefore, justified in attempting to resolve the issues requiring determination by referring to the video cassette or in its absence by other evidence. If the video cassette was the only evidence, the conclusive evidence, the ex facie proof of the guilt of the respondents, then its absence alone should not have been made the basis of exonerating the respondents of the charges .". "(20) It follows, therefore, that the mere loss or destruction of the video cassette could not be itself be sufficient to exonerate the respondents of the charges competently framed and properly enquired into. If, it were so it will encourage and reward criminally and subversion of orderly and established procedures of the Authorities and Institutions. (21) in concluding these .appeals, we cannot .help noticing certain features of the case which are alarming and which deserve a thorough probe by the Federal Government at an appropriate level. In the first place the closed Circuit T.V. system is an invaluable aid to monitor and record unobtrusively the performance of the various functionaries covered by it. It is good and substantial evidence. It enables prompt and effective remedial measure. Why in these cases things were allowed to continue unattended, unabated for eighteen months without any action having been taken. According to the allegations the culprits- were identified, their delinquencies had been recorded and photographed, fleecing of the passengers, travelling on international flights was widely taking, place yet the monitoring and supervising officers delayed the disciplinary and remedial action for such a long time. After all why was there such a callously permissive attitude on the part of those who' should have known better, should have reached differently. Secondly, why were not the duplicate or copies of the video cassettes prepared by the mechanical process. This was neither expensive nor technically tedious. It appears that a calculated risk for no obvious or plausible reason was taken. Thirdly, knowing the importance of these video cassettes and the prize that they were, their safe custody, it appears was not properly ensured. How could pilfering from such a custody took place is itself somewhat surprising and what is more the mere registration of a criminal case was considered sufficient in the matter, Fourthly, and this is important for the establishment of rule of law in the country mandated by the Constitution, why did the higher and the responsible officer of the department -fail to respond to the process of the Special Judge duly served on him when called up to testify in the theft case and that case ended in straight acquittal on the ground of no evidence " Reference can also be made to the following case law relating to admissibility of video-films/cassettes in evidence; R. v. Turnbull [(1976) 3 All ER .549); R. v. Cook [(1987) 1 All ER 1049] and Collector of Customs v. Saeed-ur-Rehman (PLD 1989 SC 249). (44) It is a matter of common .knowledge that unfortunately in our society at times, even the eye-witnesses of an occurrence hesitate to appear as witnesses either because of fear or involvement in the prosecution controversy during investigation stage and/or before the Court or due to the fact that they .are influenced, harassed or intimidated by the opposite-party. This being so, the Court should be dynamic and not static while appraising the circumstantial evidence brought on record in such cases. While appraising such evidence, if the conscience of the Court, on material placed before it, is satisfied that factually the person charged with contempt has committed the same, it should record the conviction ignoring the technicalities of procedure provided the contemners have been given a fair trial for defending themselves pursuant to the charges levelled against them. In case where there is no direct evidence to show in what manner the offence was committed, the Courts must examine the probabilities in the light of indirect evidence or circumstantial evidence, which once found to have been established may well-furnish a better basis for decision than any other kind of evidence. It would also proper to refer to some well-established principles relating to appraisal of circumstantial evidence by Court. Reference may be made to the case of Khurshid v. The State (PLD 1996 SC 305), wherein it was observed:

"While appraising the circumstantial evidence the Court is to keep in mind the location of the incident. If the place of incident is a place when no witness was available and the accused had the exclusive knowledge about the incident, the simpliciter denial on the part of the accused will not be sufficient to nullify the circumstantial evidence of `the nature which directly connects him with the commission of the offence charged with. But he should raise plea of the nature, which on being tested on the touchstone of probabilities warrants a reasonable hypothesis of his innocence." "Though the Courts are supposed to follow the well-settled principles of criminal jurisprudence, namely, that an accused person is presumed to be innocent that the prosecution is to prove a criminal case against an accused person beyond reasonable doubt and in case two views are possible the view which favours the accused persons, should be preferred; and that all ,benefit of doubt should be extended to the accused, but at the same time, the Court should also take notice of the changing circumstances of the present days. Even in cases where eye-witnesses are available they refuse to appear as witnesses in support of the prosecution case; either because of fear or on account of being won over by the accused party. The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that 1'aclually the persons charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the investigat ing agency/prosecution, provided the same have not prejudiced the accused in the fair trial. The people arc losing faith in the criminal judicial system for the reasons that in most of the criminal cases the criminals get away without being punished on technicalities." In Talib Hussain v. The State (1995 SCMR 1538), it was observed as follows:

"Where there are indications design, in the preparation of a case resting on circumstantial evidence; the Court should be on its guard against the possibility of being deliberately misled into false inference." "Where undersigned coincidence of circumstances are proved and the chain of such circumstances is so strong that no other explainable conclusion eau be drawn except the guilt of the accused the Court is bond to draw inference against .him. The circumstantial evidence must be so clear, cogent and convincing that the facts could not be accounted for on any other rational hypothesis than the guilt of the accused. In such a situation unless the accused creates a reasonable doubt regarding natural conclusion which can be drawn or produced strong evidence of exculpatory nature, it may be difficult to discard such circumstantial evidence." In Syed Khalil Mehmood v The State (1991 PCr.LJ 757 at 763), it was held:

"Circumstantial evidence means the evidence afforded not by the direct testimony of an eye-witness to the tact to be proved; but the bearing upon that fact or other and subsidiary facts which are relied upon as inconsistent with any result other than the truth of the principal Fact. Circumstantial evidence is evidence of facts from which the facts `ill issue' may be inferred as a natural or probable conclusion " In Muhammad Arshad v. The State (1992 SCMR 1187), at page 1191-E of the report, it was observed:

"Circumstantial evidence could be relied upon where either direct evidence is not forthcoming or had not been found satisfactory, In Lejzor Teper v. The Queen (PLD 1952 PC 119), it was observed:

"Circumstantial evidence may sometimes be conclusive; but it must always be narrowly examined if only because evidence of this kind my be fabricated in order to cast suspicion on another." In M. Ata Muhammad Khan v. The Crown (AIR (37) 1950 Lahore 199), it was held:

"The well- recognized, almost elementary, rule is that to find a .man guilty of a criminal offence on circumstantial evidence, the facts proved must all be consistent with the theory of his guilt and incompatible with the theory of his innocence.... " Admittedly, the video recording of the alleged pointation of place of incident by the accused/appellant further leading towards recoveries of the bones of the deceased and other related material was not screened/displayed before the Trial Court and the same was not considered as evidence, circumstantial or otherwise for .the purpose of assessment of the entire evidence produced by the prosecution in A support of its case. The defence has a right to pray for the cross-examination of the Investigating Officer/Officers and. the Mashirs of all events as recorded through the video camera and such an exercise is necessarily to be undergone by the Trial Court. Keeping in view the above quoted observations of Honorable Supreme Court, the case needs to be remanded to the Trial Court where the prosecution shall be at liberty to make an application for producing further evidence as recorded through video camera and cassettes and the accused shall be entitled to pray, for further cross-examination of Investigating Officer and Mashies. Appeal is disposed of with direction that case stands remanded to the Trial Court for all the purposes relevant to the production of circumstantial evidence on the record. The parties are directed to appear before the Trial Court on 15-5-2007. H.B.T./S-63/K Case remanded.