LAHORE: The Lahore High Court (LHC) has ordered a de novo trial of four men convicted of gang rape as digital evidence (videos/photos) against them has been presented during the trial proceedings as a surprise to the defence.

Nauman, Asif, Awais and Muhammad Akbar faced trial before a sessions court of Multan in a gang rape incident of 2018 and were convicted in 2020 under sections 376(ii) & 509 of the PPC.

During hearing of the appeals of the convicts before the LHC, it was agitated that a video containing some evidence relating to episode of crime and snaps showing acts of the accused persons/appellants were generated from the mobile phone of one of the accused by an expert of the Punjab Forensic Science Agency (PFSA).

The video and snaps were exhibited in the evidence through the statement of the investigating officer in the form of DVD which though was not played or shown in court nor was a copy of it given to the accused/appellants.

In his verdict on the appeals, Justice Amjad Rafiq observes that 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 (LHC) 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 incredible.

Whereas, he says, other side foresees 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. However, he notes, the admissibility of forensic evidence is expected to be compromised because it has been brought on record against the law and principles of evidence.

The judge observes that an evidence in the form of audio/video clip/photo as material thing/real evidence would only be exhibited and produced for the inspection of a trial court in the statement of an investigating officer who collects it during the investigation albeit through secondary evidence as well. It shall be accepted and used as evidence if it confirms the requirement and standards set by the Supreme Court, he adds.

The judge states that it is trite that before using such evidence in any form i.e., as document or as material thing/real evidence, a copy of it must be supplied to the accused to avoid using it as surprise evidence which is against the principles of fair trial and due process.

Justice Rafiq says the forensic evidence in this case was collected during the investigation, therefore, does fall in the categories of statements under section 162 of CrPC and can safely be provided with copies to the accused.

The judge holds that it is essential that the case be remanded to the trial court for the purpose of bringing on record the forensic evidence (video/snaps) in accordance with law, therefore, it is directed that the trial court shall call an expert who shall prepare required copies of such video evidence/ snaps etc., which shall be handed over to the accused persons with a surety that it may not be misused and time may also be given to them for preparation of their defence.

He further says that the video clips/snaps shall be exhibited and played in the court with strict moral standards and in camera only in the presence of lawyers for the parties and relevant witnesses so as to face any cross-examination to facts/information contained in such forensic evidence.

The judge disposes of the appeals remanding the case to the trial court with a direction to complete the process of recording of evidence as early as possible but not later than four months after hearing both parties shall decide the case afresh on the basis of entire evidence including recorded earlier. During all this process, the appellants would remain behind the bars as under-trial prisoners.

Published in Dawn, October 28th, 2022