S M ATTIQUE SHAH, J. Through present petition, petitioner has expressed his grievance against the interlocutory order dated 10.02.2022, whereby, his application for sending Video for Forensic report regarding its originality has been dismissed.
2. Heard. Record perused.
3. As the record unfolds, it was the petitioner who brought a suit against the respondent for recovery of rupees five million as damages under the Defamation Ordinance, 2002 which was contested by the respondent by filing written statement, however, after closure of evidence, the petitioner submitted an application for sending the video to the Forensic Laboratory for expert opinion. Learned trial court, after receiving reply and hearing the learned counsel for the parties, dismissed the said application through the impugned order. Since the matter in question revolves around the forensic examination of the video (Ex.PW-1/1), therefore, this court would confine itself only to that extent. By now, it is possible with the advancement of science and technology to get a forensic examination, audit or test conducted through an appropriate laboratory, so as to get it ascertained as to whether a video or tape is genuine or not and such examination, audit or test can also reasonably establish, if such video has been edited, doctored or tampered with or not. The august Apex Court in case titled lshtiaq Ahmad Mirza and 2 others v. Federation of Pakistan and others reported as PLD 2019 Suprem e Court 675, the requirements for admissibility of an audio tape or video in evidence before a court of law and the mode and manner of proving the same has been discussed at length, which are reproduced below for ready reference:
(i) No audio tape or video could be relied upon by a court until the same was proved to be genuine and not tampered with or doctored.
(ii) A forensic report prepared by an analyst of the Provincial Forensic Science Agency in respect of an audio tape or video was per se admissible in evidence in view of the provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007.
(iii) Under Article 164 of the Qanun-e-Shahadat Order, 1984 it laid in the discretion of a court to allow any evidence becoming available through an audio tape or video to be produced.
(iv) Even where a court allowed an audio tape or video to be produced in evidence, such audio tape or video had to be proved in accordance with the law of evidence.
(v) Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, had to be produced so as to rule out any possibility of tampering with the record.
(vi) An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.
(vii) The person recording the conversation or event had to be produced.
(viii) The person recording the conversation or event must produce the audio tape or video himself.
(ix) The audio tape or video must be played in the court.
(x) An audio tape or video produced before a court as evidence ought to be clearly audible or viewable.
(xi) The person recording the conversation or event must identify the voice of' the person speaking or the person seen or the voice or person seen may be identified by any other person who recognized such voice or person.
(xii) Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.
(xiii) The voices recorded or the persons shown must be properly identified.
(xiv) The evidence sought to be produced through an audio tape or video had to be relevant to the controversy and otherwise admissible.
(xv) Safe custody of the audio tape or video after, its preparation till production before the court must be proved.
(xvi) The transcript of the tape or video must have been prepared under independent supervision and control.
(xvii) The person recording an audio tape or video may be a person whose part of routine duties was recording of an audio tape or video and he should not be a person who has recorded the audio tape of video for the purpose of laying a trap to procure evidence.
(xviii) The source of an audio tape or video becoming available had to be disclosed.
(xix) The date of acquiring the audio tape or video by the person producing it before the court ought to be disclosed by such person.
(xx) An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion.
(xxi) A formal application had to be filed before the court by the person desiring an audio tape or video to be brought on the record of the case as evidence.
4. It is abundantly clear from the above requirements and; mode and manner of proving an audio tape or video that any party can make a request for forensic examination of an audio tape or video through an appropriate laboratory, so as to get it ascertained as to whether the audio tape or video is genuine or not through moving a proper application in this respect to the concerned court.
In the present case, it is evident from the available record that the entire suit is based upon the video (Ex.PW-1/1) and; the burden of proof lies on the shoulder of petitioner to prove it through satisfactory oral and; documentary evidence while on the other hand, it is the discretion of the learned trial court to allow the petitioner to prove his case qua the genuineness of the video through the forensic examination from an appropriate laboratory in the attending circumstances of the case. After closure of evidence of both the parties, the petitioner moved an application for sending the video (Ex.PW-1/1) to the Forensic Laboratory in order to ascertain its genuineness and; originality, however, the said application has been dismissed by the learned trial court through impugned order by holding that, at this stage, the court is not bound to collect evidence for the parties rather to decide the case on evidence brought on record. It is apparent from the impugned order that the learned trial court has totally overlooked the fact that the petitioner was seeking expert opinion of the impugned video regarding its originality or otherwise and production of additional evidence in light thereof. Besides, the learned trial court also failed to appreciate that by virtue of Order XVIII, Rule 17, C.P.C., the additional evidence can be allowed at any stage. Even if one or the other party had failed to produce all the material documents and/or failed to request for proper examination of the disputed documents/signatures/video, the court had ample power to do the needful so as to advance justice rather than injustice. The concept of bar against filing the gaps is no more available in our jurisprudence and the law including the precedent law on Islamic Principles; which are being made applicable progressively to the proceedings before the courts and other forums which are required to record/admit evidence 1992 SCMR 1778 Zar Wali Shah v.
Yousaf Ali Shah and 09 others. No doubt, the trial is at the verge of conclusion, but in order to ascertain it as to whether the video in question is genuine or not, there is no harm, even at this stage, to accept the request of the petitioner qua sending the video (Ex.PW-1/1) for forensic report regarding, its originality and; genuineness in terms of the judgment (supra), in the larger interest of the justice and as such, the impugned findings of the learned trial court are liable to be set aside.
5. For the reasons discussed above, instant revision petition is allowed, impugned order dated 10.02.2022 is set aside and; resultantly, the application of the petitioner for, sending video (Ex.PW- 1/1) for forensic report/expert opinion in order to ascertain its originality is allowed and; the learned trial court is directed to proceed accordingly.