MUHAMMAD AMJAD HUSSAIN S/O MUHAMMAD JAMEEL KHAN (Appellant) VS THE STATE (Respondent)

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iN THE HI GH COUR TOFS INDH, KARACHI Prcsent:

Mohammail Kaim Khan Agha l' Mr. fustice Zulfiqat Ali Sangi l' -Mr.lustice sPL. CRL A.T. JAIL APPEAL NO.202 OF 202]' SPL. CRL A.T. APPEAL NO.08 and 09 OF 2022 SPL. CRL A.T' IAIL APPEAL NO'10 and 13 OF 2022 Mr. Mehmood A. Qureshi, Advocate for Appellant in Appeal Nos'202/2021ar:d and 09 of 2022 Mr. Mansoor Mir. Advocate for Appellant in Appeal Nos'08 N4r. Iitikhar Ahmed Shah, Advocaie for Appellant in Appeal No'13 of 2012.

appeals and Applicant NIr. Faisal Siddiqui, Advocate for the Complainant in all iir CMA No.12863 of 2022.

Mr. Muhammad Iqbal Awan, Addl' Prosecutor General Sindh' Date of Hearing 03.11..2022

Date of Aru-rouncement 08.17.2022

ORDER

ONMI SC. APPLI CATION NO.1 2863 0 F 2022

Rahim Sawati' Mohammad Karim Khan Agha, |' Appellants Mohammad Muhammad Imran Sawati, Ahmed Khan @ Ahmed Ali @ Papu Shah Kashmiri' @ Sawati were charge sheeted Nluharnmad Amiad Hussain Khan and Ayaz Ali (Old Special Case No'17 oI to face theil triai in Special Case No'23(vii) ot 2020 section 302/207/202/109/34PPC' 2016) arising out of FIR No 104 of 2013 under at PS Pirabad' Karachi' The r/n, section 11-N/11-V(ii), 7 of ATA 1997 registered judgment daled 77 '12'202L passed by appellants were convicted vide impugned Karachi (Central) whereby the the learned Judge, Anti-Terrorism Court No'VII' appellants were convicted and sentenced as undet:- Accused Muhammad Raheem Sawati s/o Syed ]{1bib' Allrz Ali

i)Amjad l{ussain alias Sawati s/o Muhammad Shireen' Muhammad Khan alias Ahined Ali Khan s/o ftf"i"^* a Jameel Kha+ Ahmed @ Papu Shai Kashmir'i s/o Abdut Baqi convicted t9r tfi ojjelce punishable S"tUo^ 7(1)(a) of AT A' 1997 r/w Sectit n 21-I of ',t]"' ATA 1gg7 t""t"*ua them io suffer R'I' for life and to p'ry {ine-of they shall suffer S'l' ns.2,00,0007- (iwo Lacs) each in case of default for six months each.

ii)AccusedMuhammadRaheemsawatis/oSyedHabib.AyazAli Amjad Hussairl uiiu, su*utl s/o Muhammad Shireery Muhammad Khan alias Ahmed Ali zu'rr" rZo Mu'hammad iameel Khan, Ahmed the offence a ;*" i}t"n irtrr*i.i s/o Abdul Baqi convicted^for PPC and, p""itf*frf" under Section 302 PPC r/w section 109 /34

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and t-o oav fine of Rs'1'00'000/- sentenced them to suffer R'I' for life (one Lac) tr'"y shali iuifer S't' for six months each.

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iii)Accused Ayaz Ali alias Sawati s/-o- Muhammad Shireen' Muhammad et"i"J H"tt"in Khanp#" s/o Muhammad Jameel Khan' shah Kashmiri s/o Abdul Ahmed Kh"" "ii';'*;h;;;'eiio Baqi and rt'f"rt"i-trn J- ft*an Sawaii s/o Muhammad Raheem under Section 201 PPC Sawati convic#i";t;fftnce punishable of and sentenced in"rn to R'I' for seven vears and to pay line "ff"t Rs.50,000/- €i;;'ih";;;;d) each in ca'" of default thev shall suffer S.I' for six months each' Muhammad Shireen' i.,) Accused Ayaz Ali alias Sawati s/-o Muhammad o*#;;;;;;" Khan s/o Muhammad Jameel Khan' Papu shah Kashmiri s/o Abdul Ahmed Kll"" ;ii;t"Ah^;; Ati @ Baqi and M;;;;; i"''an sawiti s/o Muhammad Raheem Section 202 PPC under Sawati convicffi;;";fftnce punishable for six months and to pay fine of and sentenced'ii"'" tt-*ff"t R'I' each in case of default they Rs.25,000/- ir*t"iy'fi"" ino""ta; each' shatl suffer S I' for three months of the sentences were ordered to run-toncurrentiy and benefit' A1i to all the accused persons Fine section 382-8;;t;;;"";;;ded of the amount, tf ,;;;;;;;re ordered to pay the legal heirs deceased u/ s'544 Cr'P'C'

convicted and sentenced for their 2. '-' Essentia\ the appellants were all Parveen Rehman who was a Director of the involvement in the murder of Ms Orangi Pilot Project (OPP)' their convictions in either late

3.All the appellants filed appeals against the concerned parties were fixed for regular or early 2022 which after notices'to date the complainant filed

CMA

one day before that hearing on 02.11'2022' Sawati V State under Spl Cr'ATA No'9 of 2022 Muhammed Raheem 12863/21in and 561-4 cr.pc through a legal heir of the Section 42g R/w section 375 of the additional evidence in relation to the video recording deceased to take by this court or of the appellant namely Muhammed Raheem Sawati interview taken by iearned ATC VII Karachi' this court directilrg it to be we from the learned counset for the compl'ainant 4. After briefly hearing might effect the unru"u"t' as the outcome of the application issuecl notice to all counsel c'n02'1L'2022 appeal which was waived by their learned eaclr appellant's respective submissions on the all agreed to make their rtho by consent c otrrplainant' s application on 0311'2022' had for the complainant contended that the complainant 5. Learned counsel the deceased (le8al' this application as she was the sister of locus standi to move

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hcir); that the cornplainant even under Section 25 of the ATA had the ability to move an appeal against acquittal and as such the complainant could also apply for additional evidence to be recorded at any stage of the case and that even otherwise this court could take notice of the additional evidence by taking suo

evidence did rnoto notice of the application; on merits he stressed that additional under not necessarily mean new evidence and that such evidence could be taken was needed s.42g Cr.PC even at the appellate stage; that the additional evidence of as the foundation of the prosecution case was the confessional statement appellantRaheemsawatiwhowasthemainaccusedinthecaseandthevideo before the rebuts the fact that he contended that he never made a statement had police; that the video recording which was the new/ additional evidence only just come to the attention of the complainant and her counsel who wete

unaware of its existence at the time of the trial and as such the additional

evidence s1-rou1d be admitted and the application be allowed' In support of his

contentions he placed reliance on the cases of Ishtiaq Ahmed Mirza v

FederationofPakistan(PLD2019SC675),NasirKhanvTheState(2005PCr.L J 1), Zahira Habibullah H' Sheikh v State of Gujarat (2004) 4 Supreme Court Cases 158), Salehon and Another v The State (1971 SCMR 260)' Fazal Elahi v (PLD 1952 Lahore 388), Mojia Ratna v The State (AIR 1961

MP 10)'

t'i "-Stut" Zuhrab Gul v The State (20L7 yLR1376), Taqi v The State (PLD 1991 Quetta 39), Muhammad Shafi v Muhammad Asghar (PLD 20045C875)' Nawaz Khan v

Ghulam Shabbir (1995 SCMR 1007), Shahid Orakzai v Pakistan Muslim

League (Nawaz Group) (2000 SCMR 1969), State of Gujara v Patel Vishnubhai

Chaturdas and Ors. (R/Cr' Appeal No'19 /7996 arrd Cr' Rev' Appl.

(AIR 1971 Supreme Court No.2982/1995), R. B. Mithani v State of Maharashtra complainant and

6.Learned APG did not suPport the application of the contended that the aPPlication did not meet the requirements of 5'428 Cr'PC as it

was not necessary as the Prosecution had already produced the best evidence

before the trial court concerning the conlession of appellant Raheem Sawati in

termsofRaheemsawati'sactualconfessionbeforethepolicewhichhadbeen believed and. relied upon by the trial court in convicting the appellants and as

suchnofurtherevidenceinthislesPectwaseitherneedednornecessary.He drewourcontentiontothelactthatthreesePalateJlT,shadalreadysubmitted been aired on television in 2016 their separate reports and that as the video had notice of it and it was not deemed all and sundry including the prosecution had I

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as necessary evidence as the best evidence had already lreen producecl in thil; case by the prosecution and as such the application was devoid of merit and should be dismissed. In support of his contentions he placed reliance on the cases of Shafiq Ahmad v The State (PLD 2008 Peshawar 100), Asfandyar and others v I(amran and others (2016 scMR 2084), State (through collector of Customs) (2005 YLR 3280), Dildar v The State (PLD 2001 SC 384), Ishtiaq Ahmed Mirzav Federation of Pakistan (PLD 2019 SC 675), The state v Ahmed omar sheikh (2021 SCMR 873), Nasir Khan v The State (2005 P Cr. L J 1),

7.Learned counsel for the appellants submitted that the complainant had no locus standi to move the application as she was not the complainan! that she was not the legal heir of the complainant and that such application could only be moved by the APG; that the video was completely in admissible under Article 38 and 39 Qanoon-e-Shahadat Ordinance 1984 which was recorded whilst the appellant was in police custody before armed police; that the video was aired on 24 News Channel in the year 2016 and as such it was in the public domain befote even the matter was challaned and in fact had been exhibited before the trial court by a prosecution wikLess and as such it was not new or additional evidence al a1l ls it was already part of the case file and as such the application to bring this aclditional evidence was completely frivolous and was designed only to further delay the appeals being heard and prolong the agony of the appellants; that the video evidence was not necessary as the hial court by placing reliance on the con-fession of the appellant Raheem Sawati and using the confession to convict the appellants despite it being retracted rendered the video superfluous andwasnotneeded;thattheapplicationwasorrlybeingmadesolateintimein order to attempt to fill in the lacuna's in the prosecution case and as the

application was devoid of merit and frivolous and had been filed on-ly for the

purpose of clelaying the hearing of the appeals it should be dismissed' In support

oI there contentions they placed reliance on the cases of Sartaj and others v

Mushtaq Ahmad (2006 SCMR 1916), Aiiaz Ali v Ali Nawaz (PLD 2022 Sindh

12), Hayatullah v The State (2018 SCMR 2092),Dildat v The State (PLD 2001 SC

(1984 PSC 297)' The State v 384), National Bank of Pakistan v Mumtaz Ahmad

I(haistaRahman(2013MLD1872),GhulamRasoolvTheState(PLD2013Sindh Naveed v The 214), A1lah Wasaya v The State (2018 MLD 489)' Muhammad State (1999 SCMR 828)' State (PLD 2019 SC 669),Mrazhar Naeem Qureshi v The

Asif Jameel v The State (2003 MLD 676), The State v Ahmed Omar Sheikh

I

Qtt (2021 SCMR 873) and Ishtiaq Ahmed Mirza v Federation of Pakistan (PLD 2019 sc 675).

8.Wehaveheardlearnedcounselforthecomplainant,learnedAPGandthe learned counsel for the appellants on the limited guestion of law involved concerning the recording of additional evidence without touching the merits of the case which will be decided at the time when the appeals are heard and considered the relevant law including the case law cited at the bar' Turning to the question of maintainability in terms of the locus standi of the complainant to make this application'

9.Admittedly the complainant was the driver of the murdered Parveen Rahr]ranwhohassinceexpired'Assuchhislegalheirscouldhavemovedthe however the application has been moved by the a legal heir of the application deceased (sister of the deceased) and as such under the relevant law it is difficult

to see how such an application is maintainable especially since the courts have

held that sisters of the deceased are not the legai heirs of the deceased. In this

respect reliance is placed on the cases of Sartaj (Supra) and Aijaz Ali (supra)'

,i0.-.Anotherobstacleinthewayofthecomplainantisthatevenifwetrcatthe compiainant as being a complainant in the case as she is a legal heir of the

deceased is the restricted role which a complainant has in a criminal trial' section

,{93 CI.PC which d.eals with this aspect of the case is set out below for ease of

leference;

"493. Public Prcsecutor may plead in all Courts in cases under his charge ' T'\rc Pttblic Plearlers pinately instruitei'd to be undrr his direction' p'rriirr"ni, *oy ippro, and plead without any uritten authoity before ony Court in iniih ary case of which he has charye is,unfur inquiry' trinl o,r"approl, anil if any priaati person instructt 1pl':d:: to prosecute "anY-Person in any bourt in any such case, the Public Ptosecutor shall shall'conduct thi prosecution, ind the pleailer so instructed act therein, unilet iis directions' (bold added)

11.we find that s.493 Ci.PC makes it clear that any counsel appointed by the prosecutor or at best assist the complainant sha11 act under the directions of the prosecutor and as such it was only the prosecutor who could have filed this

application after being assisted by/consulting with the counsel for the the complainant' In this case cornplainant if he deemecl it necessary and not by to conduct the trial and the appeal since the prosecutor whose primary duty it is

has opposed the application it is diJficult to see how such application made bI,

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the counsel for the complainant is maintainable keeping in view the limitcd role of the complainant under 5.493 Cr.PC. In this resPect reliance is placed on the cases of National bank of Pakistan V Mumtaz Ahmed (Supra), State v Aclvocate general V Khaisat Rahman (Supra) Ghulam Rasool (Supra) and Allah Wasaya (Supra).

1"2. It appears that the only option left for the complainant is for this court to take notice oI this application as was held by the Supreme Court in Istiaq's case (Supra) in the following terms whilst discussing 5'428 Cr.PC:

"Lbrder this section an appellate court cafl take additionttl eoidence on its owtr or llpott an application of a party to the appeal, i.e. the appellant, tlrc State or the complainant but irt botlr sitch cases tlrc appeltate court l rlrs to record its teasons wlty it thinks that taking of additional eoidence is necessary. The necessity of takutg nLlditionnl et,idence at the appellnte stnge ntLst be felt by the appelLnte cotLrt itself antl tlrc same is not to depend upon uimt n party to tlrc Ltppenl tlinks of such necessity.(bold added)

13.Although for the reasons which will become aPParent when we consider the application on merits were are not Palticularly inclined to take up this application on our own in the interests of justice we do so and will now consider the application on merits.

Turning to the application fot calling additional evidence on merits' 74, At the outset we find that reference to s.375 Cr.PC in the application is o{ appeais no relevance as this section only applies to conJirmation cases and these r.1o not concern confirmation of a death sentence as only life imprisonment and

othet lesser sentences were handed down to the appellants'

15.The relevant section cited in the application is therefore section 428 Cf.PC which is set out below for ease of reference;

"428, Appellate Court may take further eoiileflce or direct it to the Apltellate be tal<en. (1) ln de:ating with any appeal under this Chapter' Court, if it thinks aililitional eoiilence to be necessary' shall record its rensons,andmayeithertakesuchnidenceitself,ordirectittobetnkenby Magistrate, oi, a'hen the Appellate Court is a High Court' by a Court of a Session or a Magistrate'

(2)lMen the additional eoidence is tal<en by tlu Court of Session or the Magistrate, it or he shall certify such eaidence to tle Appellate Court, and such Court shall thereupon prcued to dispose of the appeal'

4el accusetl or his

(3)llnless the Appellate Court otherwise directs' tlu euidence is taken' pleafur shall be present when the additiorul subiect to tht

(4)The taking of euidence under this section shall be an inquiry ' prortisions of Chapter XXV, as if it were attached to the Lb. It is relevant to reproduce para's 4 and 5 of the affidavit sets out the complainants CMA filerl by the applicant which in essence purpose/object of 5'428 CI'PC and unclerstanding of the legal requirement and to be adduced now could not be the reason why the evidence which is sought 4 and 5 are reproduced as under;

producecl at the time oI the trial' Para's that the "4. Tlnt it is most respectfutly and most humbly submitted ptesent Applica't'io' t'o' Lun pia b seek directions from this Honorua'b 'le Courttorecordadditionaleaidenceinrelationtotheaideorecordingofthe Mu.hammad Rahim Sawati' lt is irtteruieto of tht appetlant namely Mr' submitteil tn-'t [iu' is no bai on the filing of the Applicat-ion fo'r stage' as th: ofl-:y rccoriling of ailditional eoidence at Appellate aitilitional eoiilence by the two tequiremen't' 7o' r"o'ding of the L898 is that firstly tlrc Appellate Cou* undet Sectioi 428 Cr'P'C' of the case' Seanilly' that sanrc be 7o' the iust decision "'""o'y the eoidence wal iitt"' not aoailable at the time of tilal or the from proilucing same pafiy ,on"*oa was preoeflted 'by contrcl ot bg reason of misundetstanding i-iri,*"on"'" beyond its Honourable High Court at the tim'e or a mistake' It ii settled law that the ettidence if tht same is of hearing oi''n l'pp*f' may tlke additional trccessary pr the iusi dec*ioi of the call' The main obiect of Sectiotr is 425 Cr.p.C, iiti, ,n relotioi to taking of adilitional eaidence or thtough carelessnes's that a guitty petson shoulil not escape should not or innocent person igrrcrant ?roceldings of the Tial Coufi or be rorongly when the Court' through some carelessness' "'u"i ignoranu, lmd omitted to record the circumstantial eoidence essential for

ixplanation or for reaching the truth' at tlis Appellate strrye

5.That the present Application has been filed aforemeniioned oideo recording of the intentietu of the oi*)r* "i:;;;r"; n"' come ittto Mr' Muhammad Rahittt Sawati has onlv "r;rly after the lt;dgment the knowledge of the AP1licant/Complainant Court No'Wl' was annourtced by the leamed Anti-Terrorism in Special Case No'23ktii)2020' lt is submitted that thc iirr*, Appellant aforementioned oideo tecotrling of the interrtiew ?f ,the "rirrrrr1 not in the knowledge Mr.Muhammad Rahii Sawati was ;; ;;ri Complainant/Applicant attherefore' the time when the triat proceeilings were being conducted' it is clear tlmt tlrc with lur at the time of the ti*l and hence stznrc rDEs not aooilable ' -r,tn by the same *o, pteuented from producing tlu present,circumstances Application is wlriclt were -ttl,nintainable beyonit her contd' Hence' Court nny nia it i' imperntizte thnt this Honourable tltc uideo, jirrrrstty be ptensed to tnk additionnl euidence' in relalion to

L11a

MtL,hnttnnad Rthi'nt recording of the intentiezo of the Appellant namely the learned Atrti- Sauati intiruiew, by itself or direct it to be taken by Terrorism Court No.Vfi, Karuchi" (bold added)' to balance the interest of 17 . To our mind in deciding this application we need accused to a fair trial which is now the parties and in particular the rights of the which reads as under;

enshliued in our Constitution by Article 10(A) iglils and "10A. Right of fair trial' Fot the dttermination of his cioil obligations or in any ciminal charge against him a percon shall be entitled to a fair trial and due process" ' satisfied' The

18.Section 428 CI'PC seems to have two limbs which need to be secondly that it was not first is that the additional evidence is necessary and has only recently come to light' It is aiso well available at the time of the trial and settledthatadditionalevidencecannotbead'ducedundersection42SCr.PCifits case' In this respect reliance is purpose is to li1l in lacuna's in the prosecution 2001 SC 384) where it was held as placed on the case of Dildar V State (PLD under;

the lnzp s Cottrt "9. Tlrcre cart be no cnuil rpith the proposition that under as a zoitness or exnruine fiLy Pers(nt is entportarcd to sufilfion any Person in nttendnnce tltouglt not stmrmoned as a tpitnesslt or re-call and

re-exnmitte nny such petson if his cuitlerLce !pP'nn. t: essentinl to thc appenl rtttfut ittst decisiott of tlu: case. Lilcu'ise, ht denling tuith nny the Appellate Court 'J,'riirrii*i of tle Cotlr of crintinal Procedure' if necessary, it nny eitler take such considers adrlitionnl euidence to be Magtstrnte or a Court o.f Scssion ,",r,rirrc uu| * direct it to be tnken by a thete is a fider clause to tlrc after rccortllttg its reasons' Howeait' exercise of suclr potoets anil these ptoaisions ol"?t.to be utilized intirmities or Jill up a at tlrc appellate stage to cure the inhercnt that srtclr case' It is utell'settled by notu 'i"r*r'rt itr the prosecution lacuna eztidence was ,r" to be exercised' only whete the-additional eitlrer trot aoailable at the trial ot tlv pafiY concerned tucts circumsta,nces beyond its nrcucnted ftom producing it eithet by 'control or by reoso" oJ misunderstatding or mistakc' qttotedlereinnbo" t:"'1

10.A pttin reading of the prouisions 'o :l'-1t::,.:"1:t: hrn, conferred on a Court for slt'tttlttotxltlr t1 ,,iruirrlt p*riut piruirc been and re-exanrining a tttitness already examined' uittrcss ot 'l,pip'au,rtty re-calling to bc the tiisuetion oesteil in a Court appeats public in the nature of urrestricted neztefiheless such power being aPpears-to be essential trust call only be exercised if such ettiilence lacwn it a case ,r'i, ariision of tle cise and not to fill in the ";";;;; ii,""t "negligence' inefficiency' cadessness atd , gross recklessness of a party' '{n impottant atd relettant groutil for the' some eaid'ence is iliscoaeted, exercise of ttiscretion *oy t"'wherc

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collectccl earlicr despite tlur:

stfusequetfilq u'liclr could not be atlducittg rlilisellcc earlier or where e party Toas praaented from ils 'rrrir"'rin'rrttrr" triat for cittaotdinary reasons beqorul '"l"rnot ^i 'n"But in ihe instdnt casc pltolocopics of tlocunrcnts and power, ,un,n nlnrod otr. record therefore non'production of such docwnttls ttt ')r'l)l,r#i"ro",ii,t or othent'ise amountetl-to slwcr ncgligertct ,i,,,t*ia"'ti'y We nrc t'ortified it tltis t'ieru nnd carelessness on the part of prosecution ' 'i,r',,,,i),r,,,,n, PLD 1952 of the Farlcral tourt rendered in AIi t'' Crou'n (as lis lotdsltilt by Abdti Raslid' FC 71 in trtlriclr tt FulI Bench lunded .C'l' zdtiilt the pou'et' is giz'en secttons 375 thett torts) rulerl tlnt tlrc ternts irt -by Cr'P'C' the llnrler section lt28' nntl 428, C;.P.C' t'ary to somc extent' eaitle,nce " if it tlinks Appellate Court 'fla1 caJl for adiliti.onal but must giae reasons fot its aitilitional eaidence to be necessary" need be giten but the arlditional action. llttder section 375' ""- ""to"t,'point mrLst be upott a bearing ttllon the guiLt Ln, elidence required T'he essenti'at questiot-for tlrc Court being itr itnrocertce of tlu accused" ' persoru tha tlmt of the guil'i o'' innocence of the nct:used eitlwr casc casr. is tnott behueetr tlrc troo secliotts in relation to tltis distinctiott such nn ,r):;;;; ,,," real' Tlrc limitations of sectiott 428 are.obrtious' ruhiclr is not oPerate to order, stnting reasons, toor'tkl ':'1"!" :':id::'e by iriuty ,rrk*t tu such re'aso'ts' Feilersl Cour-t cautionerl is to emplrasising tlnt the powers must be exetcisecl iuilicially' that ottin ntpu* the fainrcss and sa1t, so as to presefi)e -essential 'ri1"'r-iiirii,l,r"' * u"t' - parties' They should n.ot be utitized to

cure all the infirmities in p'o'""iion r:o'n in the Appellate th' Cozrt''.(boid added)

case of reiterated by the Supreme Court in the lg. This position was recently held as under with Omar Shaikh (2021 SCMR 873) which The State V Ahmed respect to additional evidence;

of lattt thnt It is by nou a settled pinciple of cnm " 1.3 . .inat ,1dnt,'::u:::'""

flre to be cautious in alloloing the prodttction of the nppellate courts ruhen such t'tct ruas additional eoidence at an appellate stage, especialLy of thi party.

it' ns noailnble and in the knowledge ":!'"t^ .':--!*Ouce Court to fhe undehyiig reason for the Appellate additional eaidenu' the accuscd exercise restraint is that it ig;t preiudice the.Tasc

of'the ptosecution ca'se' Thetefote' or be used to fitl the to"'noi the saiil eaidence could' not hatse been collecteil earlier' unless the said party was ptettented fronr despite due diligence or where and prodtcing at the ttial for reasons beyond ii' 'o*' collecting to allow power' the appellate courts its conttol and -:re.,not ';;";;;;;" of such additionat eztidence' (bold added) "' " "(i) rhe ,**,! ,',,',)" :''u..:.'.1!-[:: !,,i";:;u'f;ff11,",7i],'^i,'Til,*,n' defence counsel summonea a gratte flashed in the netuspaper ttnt his deai bidy roos recooered from p"t't**.Lm yln,t waj^summoned on Altttough tn" in a courtuard. "ia- of an of the depnce iut'the said Postmortem'report uns the application not.

other particulars ruere unknoun person tolrcse p;;;;^;'

and

4tz prosectrtion tlnt as to Itrtotur. It is nlso not brougltt on record by tlrc horo and on uthose pointaiion the said dend-body uns tecottercd' No doctor who effort uas made by the prosecution to produce the conifncted the Postfioftefl anil prepared tIrc rcpott' At this stage' that the leanred counsel for parents of Daniel Pea cannot.clain be t.o their^negligence \oru, *a bruios'teft by piosecutio,n clue "Titiea Uy irruoking iurisdiction unilersection 428' Cr'P'C' Thc 'C.ourt, "remain iipafiial and they are not fieant up thc -to fill patty' So ';;;trr;ir; ani other infirmities lelttheby -eit.het of rntrdet lacunas/gaps rcmaineil fail to establish factum through cogent eoidence.(bold added) ' ' ' " charge was

20.The trial of the appellants commenced on 07'11'2016 when the the iudgment in the trial was frametl and was completed on 17 '12'2021when about 5 years to complete and handed down. The trial had therefore taken 2021 and January 2022 by the thereafter appeals were filed in December is about 6 years ago' This was a high appellants against there conviction which the print and electronic media' profiie case which was widely reported in both Thevideoinquestionwhichissoughttobeproducedbytheapplicantwasaired on TV News Channel in 2016 at the very initial stages of the trial as conceded video was therefore known and by lealned coursel for the complainant' This public from that date including the openli, available to any member of the if they had wanted to obtain it for the purpose prosecution and the complainant period' The person who recorded the of a trial which proceeded over a 5 yeN have been traced out relatively easily at that time as it was a recent video coulcl made by the prosecution under video and an application could' have been maker exhibit it through the evidence of its Section 540 Cr.PC to the trial court to arrdenabledtheappellantstoclossexamineonitifitdeemeditnecessary'The been proven through forensic analysis authenticity of the video could also have as required under the law'

nor Ior the applicant neither the prosecution 21. According to learned counsel days ago not this videds existence until a few the complainant had ever heard of years ago while the trial was over 6 withstandillg the fact that it aired it only came to Learned counsel for the applicant has contended that proceed.ing.

of Ms Rehman s book who found it on the his knowledge through a tesearcher attention' Now in this day and age internet a few days ago and brought it to his such on technology through the internet tfuough search engines of great reliance been found on as google we have little, iJ any' doubt that this video could have or the 9 the i.ternet if due diligence had been exercised by the prosecution

\tt compiainant during the trial especially as it was widely shown on the televisiou' that the video had been One of the counsel for the appellants had contended google search and found .l uploaded on you tube in 2016' Thus, we did a simple thatthevideohadindeedbeenuploadedontheinternetin2016andthatithad such in our view it beggars belief been viewed over 7,000 times up till now' As not have found this evidence that the prosecution and the complainant could searches on open source during trial if they had carried out basic due diligence on the part of the prosecution and materiai. In our view this was clear negligence negligence to fill in the lacuna's complainant and they cannot rely on their own right to a fair trial under Article in their case which would preiudice the accused that the accused is the favored child of 10 (A) of the Constitution keeping in view thelawwhoinacriminalcasealwaysreceivesthebenefitofevenasingledoubt. seek to adduce this evidence This is more so as in this case the prosecution after more than one year of the completion of the trial where the appellants and sentenced and have already been languishing in iail { have been convicted for around 7 or 8 Years each' is the fact

22.What is even more damaging to the complainant's application This is because one of the ,,.that-this is not new or additional evidence at all' us to p.999 B of the paper book which learned counsel Ior the apperlants directed istlreevidenceofPW26BabarBakhatwhohadexhibitedaJlTreportatP.l039 of the of the paper book which at serial No' (vii) clearly shows that the members applicant seeks concerned JIT had in their possession the evidence which the at all This is therefore not new evidence nor,v to adduce through the appiication' at report was exhibited by the prosecution and was considered by a IIT whose Since learned counsel for the trial and was considered by the trial court' was assisting the prosecution during the trial the assertion by the applicant was new evidence which had recently come applicant and her counsel that this on a book to light of which they had no knowledge following tesearch belied by the evidence on record as adduced concerning Ms Rahman is totally would have been aware as he by the prosecution of which the applicant's counsel the prosecution the case tfuoughout and assisting was intrinsically involved with has recently time. Thus, we do not find that the video is evidence which at the in the JIT come to light as it was known ye'us ago and was even mentioned cannot be which was exhibited at trial by the prosecution and as such report under 5'428 Cr'PC at this late staEe', admitted as additional evidence

q1,l facts and

23.In acldition to allow such applications based on the particular circumstancesofthiscasewouldvirtuallyopenthefloodgatesforanyshoddy years a{ter the completion of the trial when the prosecution to be strengthened and sentenced and then have to go appellants might have alread'y been convicted can be heard on account of the through yet further delay before there appeal which was available to it at the time plosecution producing additional evidence of the trial had it done its due diligence' which is one of the

21.We also see no necessity in allowing this application as we understand that the video key requirements under Section 428 CI'PC evidence which is sought to be adduced in evidence is not necessary as it relates which the trial court placed to tlle rehacted conJession of one of the appellants It aPPears that one year after the trial the reliance on in convicting the appellants' the prosecution case with respect applicant is seeking to yet further strengthen of one of the appellants) when the to this aspect of the case (i'e the conlession point of view concerning the tliai court has already agreed with the prosecutions APG himself has conceded that the atlmissibility of the conJession and the as the prosecution has already relied on the additional evidence is not required as opposed to a video ,bBst,g.vidence being the confession of the appellant recording with no providence and as such we find that it is not evidence because the trial court has needed/necessary to produce this additional of one of the appellants despite it being retracted alread.y believed the conJession and thus appeilant which this additional evidence in USB form relates to by the evidence cannot be adduced as additional we find on this count as well the video evidence under S.428 Cr'PC'

to earlier in this order also

25.Article 10(A) of the Constitution as referred appeal against conviction heard expeditiously encomPasses the right to have an right' of a person which is a fundamental especially as it concerns the liberty years each the appellants have already been in jail for about 7 to 8 In this case evidence as such to allow this additional pending triai and now appeal and to be proven which admissibility would need which is by way of video recording are with the guidelines laid down in Istiaq's case which guidelines in accordance of reference is only likely to greatly extend the agony of set out below for ease of there for months if not years more and further delay the hearing the appellants not the own but on account of the applicant appeais through no fault of their evidence which is already on record and prosecution wanting to adduce further the finding of the trial court in the imPugned is unnecessary keeping in view

9rs judgment in relation to the retracted confession and as such this application cannot be allowed on this count as weII'

26.The case of Ishtiaq Ahmed Mirza V Federation of Pakistan (PLD 2019 SC 675) \aid, down the following guidelines conceming the admissibility of video/audio tape evidence as under;

LL, The preceilent cases mentioned abozse show that in the matter of proaing an auilio ta?e or oiileo before a court of law the following

requirements arc insisted uPon:

o No nudio tape or ttideo can be relied upon by a court until the same is prooed to bi genuine and not tampercd aith or doctoted' n A forensic report ptepared by an analyst of .tlte P.unjnb Forensic Science p-er se adruissible in egunry i, irrprit o1 an nidio tape or ttideo is ,iiariu in rtiitu of the proaisions of section 9(3) of the Punjnb Forensic Science AgencY Act, 2007.

I * L)nder Article 164 of the Qanun-e-shahattat Otder' 1984 it lies in tlrc attailable througlt discretion of a court to ntliro any eaidence becoming an audio ttpe or oideo to be ptoduced' * oideo to be ptoduced in Eaen ruhere a court allo,ats an audio tape or euidence such audio tape or uideo has to be protted in accordnnce tuitlt the laut of eoidence.

* Accuracy of the recording mttst he protted and satisfactory eoidence' so a6 to rule out any direct oi circuntstantial,Tas b be yroduced possibility of tampering ruith the rccord' * Art audio tape ot oid'eo sought to be ptoduce-d in.eoidence must be tlp con''ei'otion as and ulrcn it utas made or of the actual record o7 th' epeflt as and wlen it took Place '

* The petson recording the conaersation or euent has to be producerl'

n Tlrc person recording the conuersation or euent must produce the audio tape or rtideo himself '

* Tlrc audio tape or oideo ruustbe played in tlte court'

* as eaidence ougli to be An audio tape or aideo produced bet'ore a court clearlY audible orsieu'able '

* or eaent must identifil the t'oice The person recording tht conaersntion the aoice ot person seetl ol ,tru prrron speaking or tlw person seen.or -kay recognizes such ttoice or be identified by'nny other person rt'ho persotx.

q -16

or * AtLy otlrcr person pfesent at tlrc time of nmkirtg of t'Irc conoersntion taking place of the eaent may also testifl rn su,lpol,t,:f tle conttersttiott shoutn ifl the ltfieo' huori i., the iudio tape or the euent * shoutn must be pr.operly identit'ied' The uoices recorderl or the persons * through nn nudio tape or oitleo hts The euidence sought to be'produrert and othertt'ise admissible ' to be relettant to tlrc conttooersy n safe custody of the audio tnpe or uide-o after its preparatiotr till be proaed' production iefore the court mtlst * tlideo must hazle been prepared Tlrc trnnscript ,7 tt,, ooaio fupe or und.er independent superuision and control' or ztideo be a ulose Tlrc parson recordirtg nn audio tape .t.nay .personnncl lrc tape or pnrt of routine duties is uco'ding of nn audio, -aideo the audio tape or uideo t'or tlrc ir',"'"ii ,rii, , person wlro h'" "Jord'd eoidence ' purpose of taying s trfiP to procure ttideo becoming aonilable has to bc Tlte source of an audio tape or disclosed.

tape or aideo.by the person prorlucing it t The date of acquiring tlu nudio xtchperson' iefrre tlrt'couit ougit tobe disclosedby at a late stage of a judicinl proceedi'trg Att atdio tape or aideo produced rttny be looked al toith suspicion' bet'ore tlrc c'ourt by tlrc person A formal application has to be filetl on the recortl of tlte case desirirtg an nudio tape or ztideo to be brought as cxidence.

case of Mian Mulutmnnd Nrutnz Shnrif lus

12.As tlre trinl court in the attl oft'iciio ini-ns h* appeal against his conaiction tlready betonrc functus uy tt" i'ioi-- is preseitly pending before the ,entence recorded 'ourt Uo*'oi'a'-ii*pre' tlrc only Court rulich can tnkt: Islamnbad Higlr Court, ut High Courl' the relertant oideo in u'ia"'" oi case is tlrc -Isla.mabnd take ndditiontl eoidtnce under sectiotr lslamabatl. An appellate Co'ut i" as follotls:

428, Cr.P.C, u'hich propides

take futthet ,eaidence.,ot direct it to

428.Appellate Cottrt may tlrc be talcen. (1) In denling u'iti oiy nppe.al trnder this Chnpte.r' it inint<s additionat euidence to be eccssatv' irii,iiri Cr,r:r,, 4 ma1 eitlrcr tnkc such euide 'ntt itsclf' or shalL record ils rensons' antl'- is n tvtogi''tiot' or' tolrcn.the Appellate Court direct it to be taken Uy ' 'r by a Coutt of Session or t Magrstratc' , High Court, or is tnken by the Coutt of Session 0) Wtere the additionat euidence tt rc A p p e t t t t c ii' ',i,1,' i, i," ;'";; ;:;' h it"' t't'v s u ch i t' i de n ce .t.o p.roceetl to dtspose of ri,, tltc Cottrt.

^ tnd such Court sh:n'11- t:he;;upon nppenl, or his ollurutise directs' the accused G) Llnless the Appellate tnken', ';'";r;;;;l;;, the additionat euidence is 'ou'1 pi"'nt'uhen

Qrr

(4)1'lre t*ing of euidence undcr this se ction shnll be suhiect to tltt prot isions of Chapter XXV , ns if it were an inquiry ' etidcrtce orr L)nder this section an appellnte court c n take additional i'a' the ir, ou,, or upotx mt a.pptication of n pnrty to -tlrc- appeal'cnxs thc tlrc State or'il,, co"'ploi"ant brrt m both' such "ppa,tort, court has to rccord its rcasons why it thinks that appellate ol tlLirrg of ailditional eaiilence is necessary' The tecessity b11 must be felt ta,t<ini aaa*ional eaidence at the appeltate stflge in, oipan* cowt itself and the same is not to clepend uport necessity' At'ter 'feeling what' a pafiY to the appeal thinks of such raasons tlrc necessity"of taking additional eaidence nnrl after recording fu, ,,rrh nrceisity tie appellate court nny either take such ertidence ',"rrrilri, ,/rirrrt ii to be tiken by n Magistrate or'.whe.n the appellnte Whert tlrc ,ri,it it , High Court, by a Cottt of Session ot a Magistrate' or the Magistrttc it additional urlidrre is taken by tlrc Court of Session court anrl the nppellatc o, lrc sl*tt certit'y such eaideice to tlrc appellate iourrt shnll thei proceed to decide the appeal on tlte basis of tfu pre- 1nrtfiilly becotnittg rt ex,irting ettidence as roell as the additionat etiden<:e pnut oi ttw tecord' lt is, tltus, obttious that in the context of the present e,ither on its otorr l ir:nottr', 4 tlrc Islamabad High Court' lslnmabad' the appellant namely Mial ntotion or on an application subnitted by Mulrnttmnd Natoaz Slnrif, feels tlu nicessity of taking adtlitional e'o,irlenu in the form of the relet'ant aitleo then it may record its reasorrs nnd may tlrcn folloto s.teps mentioned in for feeling suci neceisity -the.

that in a casc thc section 428, Cr.P C. It goes witliout saying -such only aftcr rcleaant aideo may be taken as (additional) eoiilence aboae for proaing a contplying with the requitements detailed aiaio'iefire ct court of law'(bold ad'ded) We are also not lmpressed by the timing of the application which was

date and time fixed to be heard and made one day belore these appeals were only been discovered a few days before apparently the additional evidence had of a coincidence especially since the the hearing. We find this to be too much reproduced above seems to have come ianguage as used in the affidavit as would have needed some research along directly from reported case law which arrd' pima facie it appears that the r,vith preparing the application and affidavit we find the hearing of the appeais which appiication was made in order to delay { to be most disaPPointing'

SummarY' above in particular;

28.We dismiss the application for the reasons mentioned of the prosecution at the

(a)This video was already in the knowledge in the JIT report which was time of the trial and was even mentioned the trial through a prosecution exhibited by the prosecution during witness and as such ttrere is no q""'tio" of this so called additional

J

t-l'18

evidence only just comiug to light. Even otherwise it could have beetr founcl during the trial by either the prosecution and/or the complainant exercising due diligence and as such it cannot be allowed I as additional evidence since it is an attempt to fill in the lacuna's in the prosecution case by attempting to strengthen the prosecution case'

(b)The aclditional evidence is not necessary as its PurPose is to bolster a conlession which albeit retracted the trial court relied uPon to convict the appellants and as such the evidence is already on record in terms oftheretractedconfessionandtheexistenceofthevideothroughthe exhibited llT report.

(c)To allow the additional evidence at this late stage one year after the convictions and sentences had been handed down to the appellants based on the particular facts and circumstances of this case would causeprejudicetotheapPellantsandwouldbeinviolationonArticle 10 (A) of the Constitution.

(d)Even if the apptication was allowed it would further preiudice the l accused by delaying there appeals by months if not years as the Piece oI evidence which is sought to be adduced would have to under go on slringent tests before it could even be held to be admissible based in the principles of admissibility laid down in Ishtiaq's case (Supra) respect of such tYPes of evidence.

29.Resultantly the appiication is dismissed and all the aforesaid appeals being No's Spl. Cr. AT Jail Appeal No'202 of 2021, Spl' Cr' A'T' Appeal No'08 of

2021, Spi. Cr. A.T. Appeal No'09 ot 2021, Spl' Cr' A'T' Jail Appeal No'10 of 2021

ancl Spl. Cr. A.T' Jail Appeal No'13 of 2021 sha1l be fixed for hearing on

lo.ll,.2o22atg.l5amwithdirectintimationnoticetoallthelearnedcounselfor the appellants, learned APG and learned counsel for the complainant'

30 The application stands disposed of in the above terms' Vlt JUDI}E zr 6 ') ) i lrr

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