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Friday, May 24, 2024

The videotaping saga: Some lessons from the past

Almost every crime of conventional nature be it pocket-picking to an act of terrorism involves the recording of evidence by means of electronic evidence through electronic devices. Even though our law enforcement agencies are capable, however; due to the lack of resources the desired results cannot be achieved. Barrister Muhammad Ahmed Pansota, an advocate of high court practicing in Lahore explains this issue with further details that everyone should know about.

It goes without saying that the world today has become a global village. With every passing day new technologies, inventions are taking place. One of the most challenging steps which are being faced by our criminal justice system in the modern era is the use of modern devices for the recording of evidence. Almost every crime of conventional nature be it pocket-picking to an act of terrorism involves the recording of evidence by means of electronic evidence through electronic devices. Even though our law enforcement agencies are capable, however; due to the lack of resources the desired results cannot be achieved. The purpose of writing this article is to shed some light on the use of modern devices for the purpose of recording evidence in order to achieve the desired results.

The steps taken at the governmental level are not enough in helping achieve the desired results. The government is only focusing on structural changes like changing or deputing a Station House Officer (SHO) on an SHO. It is the need of the hour that the government should come up with policies that should be based on available resources in order to help achieve the desired results. The entire criminal justice system is very much dependant and connected with the appreciation of electronic evidence. It is true that legal appreciation of such kind of evidence is the discretion of the court due to incompetent investigation and patchy laws.

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A domestic perspective

Before proceeding with the topic further, we need to know the legal definition of the two words i.e. Electronic and Evidence. “Electronic” includes electrical, digital, magnetic, optical, biometric, electrochemical, wireless, or electromagnetic technology as defined under Section 2 (I) of the Electronic Transaction Ordinance, 2002.

The term ‘Evidence’ includes all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence, and all documents produced for the inspection of the Court; such documents are called documentary evidence under Article 2 (c) of the Qanoon-e-Shahadat Order, 1984. According to Phipson the term ‘Evidence’ can be defined as ‘Any fact which possesses probative force”.

From the definition of evidence provided by the Qanoon-e-Shahadat Order, 1984 the term ‘video recording’ does not find a place as a piece of evidence. However; the law has recognized video recording as a valid piece of evidence in terms of Section 3 of the Electronic Transaction Ordinance, 2002.

It is interesting to note that video recording is a more sacred piece of evidence even in the absence of witnesses. The same is still given recognition and is termed as credible and confidence-inspiring evidence. But the question which remains to be answered is how and what methodology needs to be adopted to make such kind of evidence credible and confidence-inspiring evidence even in the absence of witnesses. The answer to this question lies in the provisions of Qanoon-e-Shahadat Order 1984 more particularly and specifically, Article 164 of the Qanoon-e-Shahadat Order 1984 helps in answering this question.

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International law on using video recording as evidence

As per Indian law, the Information Technology Act, 2000 specifically defines video recording as an electronic record under Section 2 (t) of the Information Technology Act, 2000. The term used in Indian law is an electronic record, not electronic evidence.

The Supreme Court of India in the case titled as Anvar Versus P.K. Basheer (Civil Appeal No 4226 of 2012) Justice Kurian Joseph, speaking for a Bench that included Chief Justice Rajendra M. Lodha and Justice Rohinton F. Nariman, overruled an earlier decision of the Supreme Court rendered in the year 1995 in the case titled as State NCT of Delhi Versus Navjot Sandhu alias Afsan Guru reported as (2005) (11) SCC 600, popularly known as the Parliament Attacks case.

It is pertinent to mention here that the Anvar case was rendered in the same manner as in 2007, the United States District Court for Maryland had handed down a landmark decision in the case titled Lorraine Versus Markel American Insurance Company wherein it was held by the United States District Court for Maryland that “when electronically stored information is offered as evidence, the following tests need to be affirmed for it to be admissible; is the information relevant; is it authentic; is it hearsay; is it original or, if it is a duplicate, is there admissible secondary evidence to it; and does its probative value survive the test of unfair prejudice”?. In American Federal Courts the law of evidence is contained in the Federal Rules of Evidence.

As per the law prevailing in the UK, the Association of Chief Police Officers (ACPO) uses the following four guidelines for the authentication, credibility, and integrity of evidence.

  • No action taken by the law enforcement agencies, persons employed within those agencies, or their agents should change data that may subsequently be relied upon in court.
  • In circumstances where a person finds it necessary to access original data, that person must be competent to do so and be able to give evidence explaining the relevance and the implications of their actions.
  • An audit trail or other record of all processes applied to digital evidence should be created and preserved. An independent third party should be able to examine those processes and achieve the same result.
  • The person in charge of the investigation has overall responsibility for ensuring that the law and these principles are adhered to.

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Importance of proving video evidence

The most basic and common form of defense to deny the admissibility of digital evidence is that it can be altered. The question regarding the admissibility of video and audiotape recordings came up before a Larger Bench of the Supreme Court of Pakistan in the case titled Asif Ali Zardari and another Versus The State reported as PLD 2001 SC 568 wherein the conviction and sentence awarded by the Lahore High Court were set-aside which was based on the videotape recording. The said audiotape recording has not been rebutted by the accused to date.

More recently in the case titled as Mian Khalid Pervaiz Versus The State through Special Prosecutor ANF and another reported as 2021 SCMR 522 a Full Bench of the Apex Court was pleased to hold that “Documentary evidence in defence recorded by means of the automated information system was held to be admissible in evidence in terms of Article 164 of the Qanoon-e-Shahadat Order 1984 but in case of denial, the law required that such evidence generated through the automated system must be proved in accordance with the law. It was further held that Courts had been empowered to receive and to make use of such evidence collected through modern technologies”.

Likewise, in the case titled Ali Haider alias Papu Versus Jameel Hussain and others reported as PLD 2021 SC 362 a Full Bench of the Apex Court, while interpreting the provisions of Article 164 of the Qanoon-e-Shahadat Order 1984 was pleased to hold that For the law to serve people in today’s technologically complex society, courts need to understand and be open to science and its principles, tools and techniques. Legal decisions of the courts must fall within the boundaries of scientifically sound knowledge. A judge and more so a trial judge acted as a gatekeeper of the scientific evidence and must, therefore, enjoy a good sense and understanding of science.

As science grows so will the forensic techniques, tools and devices; therefore, courts must be open to developments in forensic science and embrace new techniques and devices to resolve a dispute, provided the said technique and device and well established and widely accepted in the scientific community as a credible and reliable technique or device. Article 164 of the Qanoon-e-Shahadat Order 1984was the gateway to allowing modern forensic science to come into courtrooms. Article 164 provided that courts may allow being produced any evidence that may have become available because of modern devices and techniques. Proviso to Article 164, provided that conviction on the basis of modern devices and techniques may be lawful. Article 164 read with Article 59, inter alia, allowed modern forensic science to enter courts through the credible and valued scientific opinions of experts as evidence, in order to arrive at the truth”.

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A common defense against using video evidence in Pakistan

In the case titled as Ishtiaq Ahmed Mirza and 2 others Versus Federation of Pakistan and others reported as PLD 2019 SC 675 it was rightly held by a Full Bench of the Apex Court that “The advancement of science and technology has now made it very convenient and easy to edit, doctor, superimpose or photoshop a voice or picture in an audiotape or video, and therefore, without a forensic examination, audit or test of an audiotape or video it is becoming more and more unsafe to rely upon the same as a piece of evidence in a court of law. It must never be lost sight of that the standard of proof required in a criminal case is beyond a reasonable doubt any real doubt about an audio or video not being genuine may destroy its credibility and reliability”.

In the case titled as Ali Raza alias Peter and others Versus The State and others reported as 2019 SCMR 1982 a Full Bench of the Apex Court while dilating upon the provisions of Article 164 of the Qanoon-e-Shahadat Order 1984 was pleased to hold that “Court invested with wide powers under Article 164 of the Qanoon-e-Shahadat Order 1984, to make use of evidence generated by modern devices and techniques”.

In the case titled as Asfandyar and another Versus Kamran and another reported as 2016 SCMR 2084 a Two Member Bench of the Apex Court was pleased to hold that “Mere producing of CCTV footage as a piece of evidence in court was not sufficient to rely upon the same unless and until it was proved to be genuine. In order to prove the genuineness of such footage, it was incumbent upon the defence or prosecution to examine the person who prepared such footage from the CCTV system. Under Article 164 of Qanoon-e-Shahadat Order, 1984 trial court may allow the production of Closed-Circuit Television (CCTV) footage but it was incumbent upon the defence to prove the same in accordance with the provisions of the Qanoon-e-Shahadat Order, 1984.

The defence had to produce, the concerned person who had prepared the footage from the CCTV system in order to prove the same. The adverse party was to be given an opportunity to cross-examine the said witness regarding the genuineness or otherwise of the said footage. Mere production of CCTV footage as a piece of evidence in court was not sufficient to rely upon the same unless and until it was proved to be genuine. In order to prove the genuineness of such footage, it was incumbent upon the defence or prosecution to examine the person who prepared such footage from the CCTV system”.

In 2002, a US court ruled that “the fact that it is possible to alter data contained in a computer is plainly insufficient to establish untrustworthiness”. (the US Versus Bonallo, 858 F. 2d. 1427-1988-Court of Appeals, 9th).

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Some recent developments

Recently, the authenticity and genuineness of audio and videotape recordings came to light in a press conference conducted by some of the members of the opposition party i.e. Pakistan Muslim League (N) wherein the video recording of an ex-Judge of the Accountability Court was played wherein he was heard by saying that the sentence and conviction awarded to the ex-Prime Minister of Pakistan were wrong and that he was pressurized in giving such a decision. The members of the opposition party termed the said video recording as “genuine”. However; the authenticity and genuineness of the said video recording is yet to be proved as the same is yet to be produced in a Court of Law in a pending appeal before the Islamabad High Court as additional evidence in terms of Section 428 of the Criminal Procedure Code 1898.

Likewise; more recently, an audio recording of an Ex-Chief Justice of Pakistan was made by taking the extracts from a speech which he had delivered while speaking at a function while addressing Judges, and to the members of the Bar. A forensic of the said audio recording was conducted which proved that the said audio recording was false, fabricated and the same could not be used as credible, reliable, confidence-inspiring evidence. The members of the opposition party i.e. Pakistan Muslim League termed the said audio recording as “genuine”.

However; Senior Advocates of the legal fraternity i.e. with the likes of Barrister Chaudhry Aitzaz Ahsan Sahib Sr. ASC have termed the said audio recording as “fabricated”. In order to prove the authenticity of the said audio recording a Writ Petition bearing No 4209/2021 titled Salahuddin Ahmed, President Sindh High Court Bar Association Versus Federation of Pakistan through Secretary Ministry of Law, Islamabad and 5 others has also been filed before the Islamabad High Court wherein the Petitioner has prayed that an independent commission is appointed to inquire into the authenticity of the purported audio recording.

However; as against this the maintainability of the Writ Petition has been questioned by the High Court. The criteria to determine the authenticity and the credibility of audio and video recordings has been eloquently explained in detail by a Full Bench of the Apex Court in the case titled as Ishtiaq Ahmed Mirza and 2 others Versus Federation of Pakistan and others reported as PLD 2019 SC 675.

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Analyzing the challenge

A person is seen in the video with the following details; stealing a vehicle from outside the house of the owner; owner name and house address confirmed; daylight occurrence; the face of the accused/culprit recognizable; recorded from a home CCTV on the memory card, and not connected with any network. The proposition is straight and simple but in legal practice, this is unseen occurrence. In order to prove this case in every tier of criminal justice system, challenges are;

  • Investigation and collection of evidence: Procedure adopted for the collection of data of the memory card.
  • Presentation of electronic device on police file: The main step which connects the crime with the criminal is the presentation of evidence. The quality of the evidence will definitely affect the level of appreciation of the evidence.
  • Appreciation of such recorded video: This is the place where discretion comes into play. Only the quality of the presentation can affect the appreciation level. There is no yardstick to measure the discretion but there are certain measures that can improve the appreciation of such recorded evidence.

A possible solution to the challenge

The defence is always looking for loopholes to tear the well-knitted net of prosecution’s evidence. A small hole in the net can become a reason for the acquittal of the culprit. In the given scenario of using video recording as evidence, the investigation and prosecution need to devise a mechanism for collecting data from the available data medium.

Different prosecutions came up with different solutions. Some took a print of a screenshot of the CCTV in which the accused can be easily seen and identified. And on the basis of that screenshot, the accused is nominated and connected with the occurrence. Others after identifying the accused, arrest him and make effective recovery and on the basis of recovery and other circumstantial evidence connecting the accused with the occurrence.

There might be many ways to do the same thing but the only thing that matters is that no bogus witnesses should be placed as witnesses in the memo. The reason is that memos are the most important documents while dealing with electronic evidence and if the witness of the memo is intact, then the material of the CCTV footage will surely be appreciated and will be considered.

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The memos are somehow the piece of thread through which the CCTV footage is knitted in the web of the prosecution case as a piece of proof against the accused person. If the thread is not strong, the proof will not be considered part of the net. Obviously, it will take place for the discretion of the court to play its part. Finally, it will be the discretion of the court to appreciate the same proof with its own standards.

Should video recordings be used as evidence?

The decision of High Court of Judiciary in Hopes Case 1960 Scot Law Times 264. The Court laid at 469 “Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged”.

The use of modern devices, modern technology for video recording is regarded as a valid piece of evidence and the same can be termed as admissible in law. The same has been approved and acknowledged around the globe. This is indeed a unique step towards the recording of evidence the first of its kind and can be termed as a step in the right direction!.

    

 

The writer is an advocate high court practicing in Lahore and is a founding partner of Ahmed & Pansota (Advocates & Legal Consultants). He started his career with Cornelius, Lane & Mufti after doing Bar-at-Law from Inns of Court School Law, London, and was called to the bar at Lincolns Inn, London, in the year 2005.

Barrister Pansota also figures as a legal analyst in a weekly talk show called Zanjeer-e-Adal on Capital TV, and appears on other national TV channels. He also writes for various newspapers on current legal issues. He tweets @pansota1.

The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.