Javed Iqbal vs The State and another

MUHAMMAD WAHEED KHAN, J. Through the instant petition in terms of sections 439, 435, Cr.P.C., the petitioner has called in question the vires of order dated 27.09.2021 passed by the learned Judge, Model Criminal Trial Court/ASJ, D.G. Khan, whereby hard disks, containing video of the occurrence, were ordered to be excluded from evidence.

2. I have heard learned counsel for the parties and have gone through the available record with their assistance and noted that the prosecution had submitted the challan in case FIR No.226/2020 dated 12.08.2020 registered under sections 302, 324, 34, P.P.C. with Police Station Kala, D.G. Khan, in which the petitioner (Jawed Iqbal) was cited as one of the accused. Apart from other evidence, the case of the prosecution hinges upon the hard disks containing video of the occurrence. I have scanned the record with the assistance of learned counsel for the parties and noticed that the said hard disks were got secured by the police during the course of investigation and the same were sent for forensic analysis. The Punjab Forensic Science Agency (PFSA) vide its report dated 1I.O9.2020 has given following opinion regarding hard disks:- "2. Examination of Item 1.

Item 1 was write blocked using Digital Intelligence Ultrabay 4d and imaged using Access Data F7'1(11 Imager 4.2.0.13. The analysis of Item was performed using Forensic Tool Kit (FTK) version 6.3.186. Important features were; Drive Model WDC WD5003ABYZ-0 Drive Serial NumberWD-WMAYPODM7V1W Source data size 476940 MB Sector count 976773168 HashMD5 checksum: 5e611e555b4921 f047 f100cf8fb4e3b SHAI checksum:d531686ff2e89ded5b 8614fc4a71e24464c27893

3. After receiving report under section 173, Cr.P.C., copies of the statements/evidence of the prosecution were supplied to the accused persons, as required under section 265-C of The Code of Criminal Procedure, 1898 "the Code" but the copies of the above said disks were not supplied to them. Resultantly, the petitioner preferred an application under section 265-C of the Code and the same was allowed vide order dated 21.06.2021 with the following observation:- "The I.O. during the investigation took into possession two hard disks containing video film regarding the occurrence which were sent to the office of PFSA for analysis. In this situation the same evidence is part of the record which was nor supplied to the accused at the time of delivery of copies under section 265-C, Cr. P. C. Hence, this petition is accepted and learned ADPP is directed to provide video film to the accused".

4. Thereafter, on 27.09.2021 hard disks containing video have been de-sealed in open court and was provided to Abdul Qayyum 1102/C, stated to be an expert of hardware by the prosecution but the said official after seeing the hard disks, showed his inability to make copies of the same, resultantly, the learned Trial Court had ordered to exclude the said disks from the evidence. I have also perused the report under section 173, Cr.P.C., in which it is clearly mentioned that the police has also attached the above said hard disks with the challan and submitted to the court accordingly, meaning thereby that the hard disk containing the video film of the crime scene is the evidence, the importance of which is paramount in nature to determine the fate of the case and guilt or otherwise of the accused persons and this was one of the piece of evidence, being relied upon by the prosecution. So, it was mandatory to supply copy of the same under sections 265-C of the Code, as the said provision of law is mandatory in nature. The modus operandi adopted by the learned Trial Court, whereby a constable, present in court was asked to prepare copy of the hard disks, was not proper rather unwarranted under the law. The court must have sent the hard disks to an I.T. Dept. of the investigating agency/police or to the Punjab Forensic Science Agency (PFSA) for preparation of its copies. It would not be out of place to mention here that it was not only the failure of the police/investigating agency of not preparing number of copies of the hard disks, matching with the accused challand in the case rather it is failure of the concerned prosecution branch as well, which has forwarded the challan without noticing that the requisite number of copies of the evidence/hard disks were not attached with it. This Court in case of "Nazim Ali v. Additional Sessions Judge and others" (2016 MLD 25) and the Hon'ble Sindh High Court in case of "Government of Sindh through Advocate-General, Sindh v. Fahad Naseem and 3 others" (2002 PCr.LJ 1765) held that movie film/video cassette comes within the purview of document, as defined under Article 2(1)(b) of the Qanun-e-Shahadat Order, 1984. The above said hard disk was stated to be containing the video film of the crime scene, so, it has much significance not only for the case of the prosecution but also for the accused.

5. Keeping in view the afore-stated facts and circumstances, I am of the considered view that the application of the petitioner regarding provision of the copy of hard disk was well within the domain of law and it is covered by section 265-C, Cr.P.C., which was allowed by the learned Trial Court but thereafter its exclusion from evidence, on failure to make its copies by a person, who was hardly-relevant to the case, was un-called for and was having without lawful authority, hence, the same is not sustainable. Resultantly, the instant revision petition is hereby allowed, impugned order dated 27.09.2021 is hereby set-aside and the learned Trial Court is directed to get prepared sufficient copies of the document/hard disk in question, equal to the number of the accused persons from any reliable laboratory of the police department and if it is not possible, from the Punjab Forensic Science Agency (PFSA).

6. Before parting with this order, I hereby observe that the court should complete this procedure within a specified period, without causing any delay in the trial.