In its judgement on the video tape, involving suspended accountability court Judge Arshad Malik, the Supreme Court cited a number of case law in which an audio or video was either discussed or admitted in evidence subject to fulfillment of certain conditions.
The three-member bench’s ruling
authored by Chief Justice Asif Saeed Khosa referred to at least 17 case law in
this connection.
There were five judgements in which
the admissibility of an audio tape or video in evidence before a court of law
and the mode and manner of proving the same have been discussed in Pakistan and
abroad. It, advantageously, recorded a summary of the case law chronologically.
Some 12 reported cases were
referred to in the ruling in which a video recording or footage was held to be
admissible in evidence upon fulfillment of some conditions.
According to the decision, the
precedent cases showed that in the matter of proving an audio tape or video
before a court of law, some 21 requirements are insisted upon.
One of them is that the person
recording an audio tape or video may be a person whose part of routine duties
is 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.
Another requirement is that no
audio tape or video can be relied upon by a court until the same is proved to
be genuine and not tampered with or doctored. A forensic report prepared by an
analyst of the Punjab Forensic Science Agency, in respect of an audio tape or
video is per se admissible in evidence in view of the provisions of Section
9(3) of the Punjab Forensic Science Agency Act, 2007.
Under Article 164 of the
Qanun-e-Shahadat Order, 1984, it lies in the discretion of a court to allow any
evidence becoming available through an audio tape or video to be produced.
Yet another requirement is that
even where a court allows an audio tape or video to be produced in evidence
such audio tape or video has to be proved in accordance with the law of
evidence. Accuracy of the recording must be proved and satisfactory
evidence, direct or circumstantial, has to be produced so as to rule out any
possibility of tampering with the record.
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. The person recording the
conversation or event has to be produced.
Another requirement is that the
person recording the conversation or event must produce the audio tape or video
himself. The audio tape or video must be played in the court. An audio tape or
video produced before a court as evidence ought to be clearly audible or
viewable. 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 identified by any other person who recognizes such voice or person.
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. The voices recorded or the persons shown must be properly identified.
The evidence sought to be produced
through an audio tape or video has to be relevant to the controversy and
otherwise admissible. Safe custody of the audio tape or video after its
preparation till production before the court must be proved. The transcript of
the audio tape or video must have been prepared under independent supervision
and control.
Yet another requirement is that the
source of an audio tape or video becoming available has to be disclosed. The
date of acquiring the audio tape or video by the person producing it before the
court ought to be disclosed by such person.
An audio tape or video produced at
a late stage of a judicial proceeding may be looked at with suspicion. A formal
application has 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.
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