Mina Gul Versus State

Order

S M Attique Shah, C.J .--- Accused-petitioner seeks his release on bail in case FIR No.l55 dated 26.05.2025 under section 9(l)/6 (d) of the Khyber Pakhtunkhwa Control of Narcotic Substances Act" 2019 of Police Station Jamrud, District Khyber.

2.As per the FIR ibid, a recovery of 5000 grams of 'Heroin' was made from the secret cavities of the vehicle being driven by the accused-petitioner at the relevant time.

3.Heard. Record Perused.

4.During the course of hearing, the learned counsel for the accused-petitioner mainly stressed on the point that the occurrence had not taken place in the mode and manner, as alleged in the FIR, besides no videography of the alleged recovery was made at the time of the purported seizure by the seizing officer, rather the one, referred to in the FIR, is in fact forged and fictitious and its genuineness is highly doubtful. Since the learned counsel for the accused-petitioner was pressing hard for the production and examination of the memory card / USB qua videography of the alleged incident, therefore, this court thought it fit to appoint Barrister Amir Khan Chamkani as Amicus Curiae, who in turn was directed to assist the court as to whether any memory card / USB securing the videography of the incident / occurrence can be requisitioned for playing and examining the same in the open court in presence of the learned counsel for the parties in wake of the serious allegations of the accused-petitioner qua genuineness of the alleged videography and, that is how, he is before the court.

5.As per the opinion of Barrister Chamkani, it is the discretion of the court either to requisition or play the videography in the open court or otherwise. He emphasized that such discretion is neither automatic nor absolute and cannot be invoked as a matter of right by either party rather it is to be exercised only in those cases where the Court itself, in the interest of justice and in the peculiar facts and circumstances, deems it appropriate to do so irrespective of the fact that whether any party has made a formal request in this regard or not. Even authenticity or otherwise of such a videography, he added, cannot be assessed in isolation or at the preliminary stage and any evaluation of the evidentiary value of such a recording must be preceded by a forensic examination and certification by a competent authority such as the Punjab Forensic Science Agency (PFSA). Expounding further on the evidentiary role of videographic material, Barrister Chamkani submitted that such evidence may at best, serve as a corroborative or circumstantial piece of evidence during the trial, however, an attempt to analyze or assign probative value to videography at the bail stage would amount to a deeper appreciation of evidence, which is neither permissible nor desirable under the law.

Since the other senior advocates having expertise in criminal matters were also present before the court, therefore, their input was also sought. The two senior Advocates namely, M/s Hizar Hayat Khazana and Shabbir Hussain Gigyani, Advocates were of the view that playing of videography is not permissible at bail stage rather it would be only the prerogative of the learned trial court to assess such issue during the course of trial. They added that such aspect of the case qua playing videogmphy in the open court in presence of the parties cannot be appreciated rather it would amount to deeper appreciation of the material available on the record of the case, which is not the domain of this Court while hearing a petition for bail. However, as against that, the view of Malak Nasrum-Minallah, Advocate was altogether different because as per his estimate the playing of videography at bail stage is most essential in order to dig out the hidden truth of the prosecution insofar as false involvement of innocent persons in concocted cases is concerned.

6.This court certainly appreciates the fair and valuable assistance of all the learned counsel, who appeared and ably assisted the court and specially Barrister Amir Khan Chamkani, who on court's notice graciously spared his valuable time, meticulously prepared the case and presented relevant case law from the superior courts in support of his submissions.

7.This Court is fully alive to the evolving contours of evidentiary standards in criminal jurisprudence particularly with regard to the use of videographic recordings in cases involving the alleged recovery of narcotic substances or other contraband items. It is trite law that videographic evidence when duly authenticated and shown to be free from tampering or manipulation can constitute a vital component of the evidentiary matrix. In this regard, reference may appropriately be made to the 'Silent Witness' doctrine, a recognized evidentiary principle, which permits the admissibility of video footage, photographic evidence or other digital recordings without the necessity of oral testimony from a sponsoring witness provided that the integrity, chain of custody and genuineness of the recording can be established through reliable technical and forensic means.

8.This Court is also mindful of certain recent judgments wherein the issue of disputed videographic evidence in the form of memory cards or USB drives was considered at the bail stage. Specifically, in Cr.M(BA)No.1745-P/2025 decided on 13.06.2025 and Cr.M(BA)No. 828-P/2025, decided on 25.06.2025, this Court having considered the submissions of the learned counsel for the accused-petitioners in view of the peculiar facts and circumstances therein, directed that the relevant memory cards and USB drives, alleged to contain videographic evidence of the recovery process be requisitioned and played in open court. But, certainly, it cannot be construed a precedent to be followed in each and every case. It is a settled principle of criminal jurisprudence that each bail application must be determined on the basis of its own peculiar facts and circumstances. The adjudication of bail is a judicial function not to be undertaken mechanically but through the careful application of the judicial mind to the factual matrix of the case at hand. No rigid formula exists for the grant or refusal of bail. The ultimate determination must rest on the merits of each individual case evaluated in its own context through a comprehensive and contextual analysis of the record. Moreover, there is a distinction between cases where videography is available and those where it is not. In cases without videography, the matters shall be decided on its own merits in accordance with the peculiar facts and circumstances, and, where videography is available, the cases shall also be decided on its own merits. Anyhow, Courts must exercise their discretion judiciously and with vigilance ensuring that miscarriage of justice is avoided, whether by granting bail inappropriately in serious cases or by unjustifiably denying bail where it is legally warranted.

9.However, after receiving valuable assistance from the learned counsel representing the parties and particularly the learned Amicus Curiae, this Court has arrived to an significance conclusion that notwithstanding the potential evidentiary significance of videographic recordings in recovery proceedings, such recordings may only be treated as corroborative or circumstantial evidence to be duly assessed during the course of trial. The playing or presentation of such videographic material at the bail stage is not permissible and certainly falls outside the scope of the limited judicial assessment undertaken in bail proceedings. It is a settled proposition in criminal jurisprudence that at the bail stage, the Court must refrain from embarking upon a detailed or microscopic evaluation of the evidence. Accordingly, this Court is of the considered view that requests for the presentation or playing of videographic material in open court during the bail stage are legally untenable. Court while seizing of the bail matter, at best, may take into consideration the forensic report issued by a laboratory duly designated and accredited for such purposes solely for the purpose of forming a tentative view regarding the authenticity, veracity and genuineness of the disputed videographic material. Such consideration, however, must be confined to assessing whether the forensic findings prima facie support or otherwise the claim of tampering, fabrication or manipulation of the recording. It bears emphasis that a conclusive determination regarding the admissibility and evidentiary value of such videographic evidence can only be made by the learned trial Court during the course of the trial. As such, it is the bounden duty of all seizing officers and investigating officers to ensure that where videographic recordings are made of the recovery proceedings, the same are duly subjected to forensic examination by a competent authority and the reports thereof shall be placed on record verifying the authenticity, continuity and integrity of the videographic material. The submission of such forensic reports forms an essential part of the investigative process and serves to safeguard the evidentiary sanctity of digital recordings.

10.Anyhow, on a tentative assessment, the material available on record clearly reflects that the accused-petitioner was apprehended red-handed at the spot and a substantial quantity of narcotic substance viz. 5000 grams of 'Heroin' was recovered from the vehicle which he was found driving at the relevant time, in respect of which, the FSL report is also in the affirmative. Apart from that, keeping in view the nature and quantity of the narcotics involved, it appears highly improbable that such huge quantity or a large amount of contraband could have been falsely planted against the accused-petitioner, that too, when he did not plausibly dispute his presence on the spot nor could show that he was not in conscious knowledge of the concealment of the contraband in the vehicle. Being so, this court does not feel persuaded to grant him the concession of bail as he being prima facie linked with the commission of the offence. Moreover, individuals engaged in the trafficking, transportation and distribution of narcotic substances are not merely violating statutory provisions but are, in fact, perpetrating heinous crimes against society at large. Such activities have devastating consequences, particularly for the youth, the most vulnerable and impressionable segment of the population, who are often the primary targets of drug proliferation and abuse. In view of the grave and far-reaching consequences of such offences, this Court is of the firm view that cases of narcotics require careful examination and appreciation at all stages.

Needless to remark that at the tail end of the proceeding, when asked about the availability / existence of any Laboratory such like Punjab Forensic Science Agency, the learned Advocate General duly assisted by Mr. Fazal Qayyum Khattak, Deputy Secretary (Judicial). Home and Tribal Affairs Department replied that about 26 Kanals of land has been acquired by the provincial government at Hayatabad while an amount of 16.5 billion rupees as per NESPAK assessment would be required for the establishment of such Laboratory, which will be equipped with all types of facilities. Mr. Fazal Qayyum, Deputy Secretary further elaborated that as per notifications dated 09.08.2024 and 20.08.2024 (copies placed on file), the missing facilities have been provided to different laboratories, so functioning under the umbrella of the provincial government while the facility of 'Digital data Forensic and Extraction' is presently available at Counter Terrorism Department Laboratory, CTD, HQ Peshawar vide the ibid notification dated 20.08.2024. The learned Advocate General is directed to furnish a detailed and comprehensive report qua the establishment of such laboratory as well as existing facilities of the forensic laboratories functioning in the province, within a fortnight positively, through the Additional Registrar (Judicial) of this court for the perusal of the Bench in its Chamber.

Copy of this order be endorsed to the worthy Inspector General of Police, Khyber Pakhtunkhwa, the worthy CCPO, Peshawar, all the worthy Regional Police Officers as well as all the District Police Officers of their respective Regions and Districts shall ensure the strict compliance of the ibid directions, as specifically highlighted in the later part of Para-9.

11.For the reasons discussed above, this bail petition being without substance is dismissed.

The observations recorded in this order, being purely tentative in nature, shall in no way prejudice the proceedings before the learned trial court where the case be decided on its own merits after recording evidence.

JK/69/P Petition dismissed.