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Petitioner: BEGUM AGHA ABDUL KARIM SHORISH AND 2 KASHMIRI VS Respondent: SENIOR JUDGMENT
Court Name: Lahore High Court Judge(s): Maulvi Mushtaq Hussain, Muhammad Akram Title:BEGUM AGHA ABDUL KARIM SHORISH AND 2 KASHMIRI vs SENIOR
JUDGMENT
Reported As: 1973 P Cr. L J 482 Result: Petition allowed Judgment JUDGMENT MUHAMMAD AKRAM, J.-This is a petition made by Begum Agha Abdul Karim Shorish Kashmiri to this Court under Article 201 (a) (b) of the Interim Constitution of Pakistan, 1972 and section 491 of the Criminal Procedure Code calling in question the validity of a detention order passed by the Government of Pakistan against her husband. 2. The detenu, Agha Abdul Karim Shorish Kashmiri is the Editor of the Weekly Chatan, Lahore. It is alleged in this petition that respondent No. 1, Sardar Abdul Wakeel Khan, Senior Superintendent of Police, Lahore arrested the detenu on the 17th of August 1972 at about 1 p. m. At the Lahore Airport when he was about to board a plane for Multan where he was due to address a public meeting. Some of the members of the staff of the Weekly Chatan contacted the respondent in order to find out the reasons for his arrest. They were informed that he was wanted in connection with a case registered against him at the Civil Lines, Police Station, Lahore. But on enquiry it transpired that actually no such case was registered against him at the Police Station. However afterwards, from a news-item; published in The Pakistan Times dated August 18, 1972, it transpired that according to a press Note issued by the Ministry of Interior Government of Pakistan the detenu was arrested and detained under the Defence of Pakistan Rules, 1972 for a period of three months in connection with his alleged "statement made in Lahore at a public meeting of August 5, 1972 making insinuations against the Government of Iran". The petitioner has averred in this petition that this reason given out to the Press for the illegal detention of her husband was altogether false and a distortion of the true facts. 'The detenu did not say anything at all against the Government or Shehanshah of Iran as a pact of the public speech in question made outside Mochi Gate, Lahore, on the 5th of August
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1972. According to the petitioner what had actually happened was that somebody from among the audience at the public meeting had asked a question from the speaker about the role played by Iran during the recent crises through which Pakistan has passed: But the detenu spontaneously parried the question with a view to divert the attention of the public to another topic. According to the petitioner it was noteworthy that the detenu did not say anything on this subject in his Weekly "Chatan" or at any time during the course of his various speeches delivered before and after the meeting in question held on the 5th of August 1972. The petitioner vehemently asserted that the impugned order was passed mala fide against her husband by the respondents. Recently a public controversy ensued between the Governor of the Punjab and the detenu over the award of two contracts in respect of the installation of barbed wire on the boundary wall of tine Governor's House and the collection of toll tax at the new Ravi Bridge, Lahore. In that connection on the 28th of July 1972 the Governor at a public meeting held outside Mochi Gate, Lahore threw a challenge to the detenu to substantiate his allegations other--wise he shall order his arrest and prosecution for having made these false and malicious allegations against him. On this the detenu publicly replied to the Governor's challenge stating that he did not attribute these allegations to the Governor and that he bad merely drawn the attention of the public to the two con--tracts in which some of his relatives were reported to tm involved. On this the Central Government by a notification issued on the 9th of August 1972 appointed Mr: Justice Mushtaq Hussain, Judge of the Lahore High Court as a Commission of Enquiry to go into the two allegations forming the subject-matter of the public controversy between them. The detenu appeared before the Commission in Lahore on the 16th of August 1972 and made a statement expressing inter alia his inability to participate in the proceedings until the Governor has resigned. The proceedings before the Commission were held on the 16th and, 17th of August 1972, and the report of the enquiry was yet to be submitted to the P-resident, when the detenu was arrested at about mid-day on the 17th of August 1972. It is alleged in this petition that in these circumstances the arrest of the detenu was made for collateral purposes with a view to satisfy the ego and personal vendetta of the Governor against him. It is further alleged that the detenu has addressed several mammoth public meetings all over the Province and criticised the policies of the present Government in power. He has also beep writing to the same effect in his Weekly "Chatan". In doing so ac exercised his legitimate right of freedom of speech and expression to inform the public about the true state of affairs in the country. According to the petitioner these public speeches and the writings of the detenu have elicited tremendous response from the public and this has weakened the hold of the party in power in the Province as well as at the Centre. Therefore, in the opinion of the petitioner for these personal as well as party reasons the respon--dents, in gross abuse of their lawful authority, arrested the detenu for male fide and ulterior reasons. The petitioner has averred in her petition that the detenu is a law-abiding citizen, a great patriot and an eminent journalist of very long standing. He has not done anything objectionable to warrant his preventive detention. On these allegations the petitioner filed the above petition in the High Court on the 18th of August 1972 and prayed for the production of the detenu in Court with a view to satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. 3. This petition is opposed by all the three respondents Nos. 1 to 3, the Senior Superintendent of Police, Lahore ; the Government of Punjab and the Government, of Pakistan respectively. Respondents Nos. 1 and 2 filed their joint written statement and respondent Nos. 3 has separately filed its written reply. Respondents Nos. 1 and 2 controverted the allegations of the petitioner. According to them the detenu, Agha Abdul Karim Shorish Kashmiri was wanted by the police in a case F. I. R. No. 553 dated the 16th of August 1972 registered against him at the Police Station, Old Anarkali, Lahore, under section 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960, Rule 49 of the Defence -of Pakistan Rules read with section 500/504 of the Pakistan Penal
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Code for delivering an objectionable speech on the 6th of August 1972. The case was under investigation with the Police Inspector Sultan Ali, it was in that connection that he arrested the detenu at first on the 17th of August 1972, at the Lahore Airport when he was about to leave for Multan and lodged him in the Police Station, Civil Lines at Lahore. Afterwards the detention order in question passed by the Central Government under Rule 32 of the Defence of Pakistan Rules was received during the night and served on the detenu in the morning of the 18th of August 1972 in the judicial lock-up where he was already lodged. His detention was ordered on account of the objectionable remarks made by him in the course a public speech delivered outside Mochi Gate, Lahore on the 5th of August 1972 against a friendly Muslim country. In this speech he condemned a foreign Muslim country friendly to Pakistan. He cursed her and described her in most denigrated form. He was also disrespectful towards a high dignitary of that country. He was accordingly ordered to be detained with a view to preventing him from acting in a manner prejudicial to Pakistan's relations with foreign power. The respondents asserted that this detention had nothing to do with the alleged controversy between the detenu and the Governor. They denied that the detention of the detenu was male fide or that the impugned order was passed with a view to satisfy the alleged ego of the Governor or any other collateral purposes. 4. Similarly respondent No. 3 the Government of Pakistan, in its written statement contended that the detention of the husband of the petitioner was perfectly legal and not male fide. It had nothing to do with the controversy that was going on between him and the Governor. He was arrested on account of his objectionable speech in question delivered at the public meeting held on the 5th of August 1972 outside Mochi Gate, Lahore with a view to preventing him from acting in a manner prejudicial to Pakistan's relations with a foreign power. 5. At the hearing before us the parties were allowed opportunity to adduce their evidence. Respondents Nos. 1 and 2 produced six witnesses in support of their case. Respondent No. 3 examined the Deputy Secretary (Political) Interior Division of, Islamabad with a view to satisfy us that the detenu is not being held in custody in an unlawful manner or without lawful authority. The respondents also produced a number of documents in support of their case. In rebuttal the detenu appeared as his own witness and also produced a number of documents. 6. An important witness produced on behalf of respondents Nos. 1 and 2 is R. W. 3, S: I. Muhammad Yamin, Urdu Steno--grapher, Special Branch, Lahore. He was deputed by R. W. 2, Muhammad Bashir D. S. P. 7(S. B.), Lahore to cover the proceed--ings of the public meeting, held outside Mochi Gate, Lahore, on the 5th of August .1972 in the short-hand note books supplied to him for the purpose. He took down in short-hand the speeches of all the speakers who spoke at the meeting. The detenu Agha Abdul Karim Shorish Kashmiri also addressed the gathering. The witness prepared a verbatim record of his speech in short-hand in his short-hand note books produced in Court. After the meeting the Magistrate on duty, Mr. Sajid Hussain Shirazi (R. W. 1) appended his signatures to these short-hand notes taken by the Urdu Stenographer. S I. Muhammad Yamin further deposed that afterwards on the 7th of August 1972 he deposited these note books with R. W. 2, Mr. Muhammad Bashir Haleemi. He transcribed the entire speech delivered by the detenu from his short-hand notes. A copy of the Urdu transcrip--tion prepared by the witness is Exh. R. W. 2/1. In this the objectionable portion of the speech in question is Exh. R. W. 2/ 1-A. The testimony of this witness is substantially corroborated by R. W. 2, Mr. Muhammad Bashir Haleemi and R. W. 1 Mr. Sajid Hussain Shirazi, Magistrate on duty. The other witness of considerable importance is R. W. 4. Ghulam Rasool, Inspector of Police, Special Branch, Lahore. He independently prepared tape---recorder while the detenu was addressing the gathering in front of him within his hearing and in his presence. His speech was played back in Court as desired by the parties. This was also necessary in order to fully understand the background and the context in which the allegedly objectionable portion of speech was delivered by the detenu. Exhibit R. W. 4/1 is a verbatim record of the objectionable portion of
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the speech in Urdu correctly prepared by him in his grand from the tape-record. The petitioner has failed to establish that tape-recording in question and it: replay back in Court was manipulated by this witness by any artifices adopted by him. R. W, 6. Muhammad Rafique, S. H. O., Police Station, Old Anarkali, Lahore recorded the F.I.R. No. 553 of 1972 (Exh. R. W. 4/6) on the 16th of August, 1972 against the detenu. The investigation relating to this case against the detenu was made by R. W. 7 Mr. Sultan Ali, City Inspector Police, Lahore. According to this witness he arrested the detenu at 1-45 p. m. On the 17th of August 1972 at the Lahore Airport in this case under section 16 of the Pakistan Maintenance of Public Order Ordinance, 1960. Rule 49 of the Defence of Pakistan Rules, and section 500/504, Pakistan Peal Code for having delivered another objectionable speech to the public in Y. M. C. A. Hall, Lahore on the 6th of August 1972. 7. The detention order in dispute was passed by respondent No. 3, the Government of Pakistan. R. W. 5 Mr. M. Zia Hussain, Deputy Secretary (Political), Interior Division (formerly known as Home Affairs), Islamabad, appeared to support the action taken by the Government against the detenu. He deposed that in this connection the Secretary to the Government of the Punjab, Home Department, Lahore wrote vide letter No. 8/59-H-SPL-II/72, dated the 17th of August 1972 (Exh. R. W. 4/1) to the Secretary to the Government of Pakistan, Ministry of Interior, Islamabad infor--ming him about the objectionable speech in question made by the detenu outside Mochi Gate, Lahore on the 5th of August 1972. A copy of the English translation of this portion of the speech in question was also enclosed with this letter. This letter was sent through a special messenger by the Provincial Government. According to the witness the messenger also made over to him a copy of the entire speech of the detenu in Urdu. He examined the case under the rules and on the basis of the material laid before him he was satisfied that the speech of the detenu contain--ed material which could prejudice Pakistan's relations with an extremely friendly country. At the time the Secretary, Interior Division (Home Affairs), Government of Pakistan was away to Karachi and the witness then took the file to the Minister for Interior, Khan Abdul Qayyum Khan. He too was of the opinion' that the speech was obviously highly objectionable. He, therefore, gave his approval to the preventive detention of the detenu. A true copy of the aforesaid letter received from the Provincial Government is Exh. R. W. 4/l, Copy of the objection--able portion of the speech in question translated into English enclosed with this letter is Exh. R. W. 4/2. The witness deposed that Exh. R. W. 4/3 is true copy of the order of detention passed by Khan Abdul qayyum Khan, Minister of Interior. Exh. R. W. 4/4 is a copy of the detention order signed by the witness actually served on the detenu on the 18th of August 1972 and Exh. R. W. 4/5 is a copy of the Memorandum of the grounds of detention delivered to him. According to the witness it was necessary to detain Agha Abdul Karim Shorish Kashmiri because he had already delivered the objectionable speech in question which contained material prejudicial to Pakistan's relations with a very friendly foreign country and there was a well-founded apprehension that if allowed to remain at liberty he might make further speeches likely to endanger their good relations. In his cross-examination the witness admitted that no publication was given to the objectionable portion of speech in dispute in this country. Te Press Note (Exh. R. W. 4/6) issued by the Govern--ment was received by the Press Information Department at 22-00 hours and it was released to the public afterwards at 22-40 hours on the 17th of August 1972. The witness admitted that at the time of passing the detention order he was not aware that before it the detenu had already been' arrested by the S. S. P., Lahore. According to him he could have considered this matter about his previous arrest as well if brought to their notice. The witness was, however, positive that on the papers brought to him this detention was perfectly justified in the circumstances of the case. The witness repelled the suggestion put to him that the Provincial Government procured the detention order in question from the Ministry of Interior by suppression of facts.
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8. In rebuttal the petitioner produced the detenu Agha Abdul Karim Shorish Kashmiri as a witness. He deposed that on the 17th of August 1972, at about 1-32 p. m. When he was about to board a plane for Multan, a Sub-Inspector of Police in plain clothes contacted him in the departure lounge at the Lahore Airport. He told him that the Senior Superintendent of Police, Lahore wanted to speak to him. Soon afterwards he also arrived there and arrested the detenu. After his arrest the Senior Superintendent of Police took him in his car to the Lahore Cantonment North Police Station. The witness has vehemently denied that R. W. 7 Mr. Sultan Ali, City Inspector, Lahore had' arrested him at the Airport or that he took him to the Police Station. The witness admitted to have delivered a public speech outside Mochi. Gate, Lahore on the 5th of August 1972. It was correctly reported in the Weekly Chatan (Exh. A. W. 1/1) for the 14th of September 1972. He denied haying made any objection--able remarks in his speech against Iran. He maintained that in none of his speeches made before or after the 5th of August 1972, he even broached upon the subject of our relations with any foreign country. The witness is the Editor of the Weekly Chatan and according to him he has quite often written in favour of Iran in his paper. He even wrote editorial in praise of Iran. 9. It may be stated here that' during the course of the, hearing before us on the 31st of August 1972, Mr. Saeed Akhtar learned counsel for the petitioner raised an objection against the admissibility of the tape-recorded speech in question produced in' Court by R. W. 4. Ghulam Rasool, Inspector. Police, Special Branch, Lahore. In this connection he at first largely relied on the observations in Dr. Partap Singh v. The State of Punjab (AIR 1963 Pb. 298) cite before us. Hut afterwards in consultation with the detenu he did not press his objection to the admissibility of the tape-recording in the evidence. 10. Even otherwise we find that this objection bad no force. In this connection no reported case decided by the superior Courts in our country was brought to our notice. However, there are a number of decisions by the American Courts on the admissibility of the evidence furnished by the automatic devices for recording and reproduction of the talks and speeches. In Andrews v. United States (105 A M L R 322) the evidence based on conversation on telephone was held to be admissible provided the identity of the person with whom the witness spoke or the person whom he heard speak is satisfactorily established. Similarly Blair, J. Of the Supreme Court of Michigan in Boyne City, G. & A. R. C. O. v. Anderson (117 A M S R 642) observed :----. "Communications conducted through the medium of the telephone are held to be admissible, at least in cages where there is testimony that the voice was recognised . . . . . . The ground for receiving the testimony of the phonograph would seem to be stronger, since in its case there is not only proof by the human witness of the making of the sounds to be reproduced, but a reproduction by the mechanical witness of the sounds themselves." Similarly, in Brindley v. State (193 Ala. 43) testimony as conversation heard by a witness through a `detectophone' was admitted. The evi--dence obtained through the dictograph along with the statement of the operator thereby to explain the working of the instrument and demonstrate the principles on which it operated was held to be admissible. 11. In England in Buxton v. Cumming ((1927) 71 So. Jo. 232) Swift, J. Saw no reason why a dictophone record made by the witness should not be put in evidence. In Hopes v. H. M. Advocate (1960 SC (J) 104) an objection was taken that if this is permitted it would admit evidence which was illegally and irregularly obtained as a. Result of a deliberate trick on the part of the police. But on appeal 'the following observa--tions made by Lord Justice-General (Lord Clyde) on the point are quite instructive:- ' 'The Inspector's evidence of the conversation was as much primary evidence as the evidence from the replaying of tape--recorder. Each received it at the same time, the one recording it in human memory, the other upon a piece; of tape."
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In R. v. Mills ((1962) 3 All E R 291). a tape-recording machine was installed at a convenient place and the appellants were cautioned. They shouted incriminating remarks to one another. At the trial, a policeman gave evidence that he himself heard and remembered the various remarks which passed between them and that he could confirm from his human memory the accuracy of record of the conversation which were on the tape and which he had caused the machine to play back to him for the purposes of checking and improving his own note made from memory. In these circumstances the Court held that the evidence of the conversation was admissible because - "the tape-recorder was used by the policeman to perform the function which would otherwise have been performed by a pen or pencil in his own hand, and he used the record produced by that piece of machanism, which he was employing as his tool, to refresh his memory when he was giving evidence ; alternatively, the machine; albeit inanimate, was set by the policeman to perform the function of making a record, and. Very soon after the conversations had taken place, the police--man adopted as accurate the record which that machine had made, and thereupon it became his own record and was in all respects and for all relevant purposes the equivalent of a note made by him in this own note book, sufficiently shortly after the occurrence of the conversation, to which he wits entitled to refer when giving evidence." In that connection in another case in R. v. Maqsud Ali ((1965) 2 All E R 464) it was laid down that a tape-recording is admissible in evidence provided the accuracy of the recording can be proved and the voices recorded can be properly identified. In the opinion of the Court such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged. 12. We respectfully agree with the above observations of Lord Clyde in Hope v. H. M. Advocate. On principle there can be no difference of a trustworthy witness when he faithfully reproduces from what is recorded by him in his own memory or replayed from a tape-recording prepared by him with the bell of scientific device or automatic instrument that may completely a ensure its faithful recording and reproduction in Court. In a proper case under suitable circumstances a witness is permitted by law to refresh his memory from what was taken down by hi in pen or ink. There is no reason why he cannot be allowed to refresh his memory by playing back from tape-record prepared by him under identical circumstances. 13. In Dr. Partab Singh v. The State of Punjab cited before us on behalf of the petitioner, in this connection it was observed :--- "Mechanical' process of obtaining statements recorded on tape-recorder is fraught with possibilities of such tampering as to render a statement or conversation something quite contrary to what might have been stated by the speaker originally or in the first instance. After a statement or a conversation has been recorded, the tape can be replayed and, in most tape-recorders by reverse playing the recording cleared or wiped off. This means that words or sentences can be tampered with After tampering the tampered tape can be replayed on another tape---recorder and the second tape will produce recorded statement or conversation which will appear to be natural in continuity but which has in fact been so tampered with that it has lost its value as a correct representation of statement or conversation. If reliance is placed upon no more than record of a statement or conversation on the tape, it cannot be said to be basically reliable evidence. The only way to ensure the veracity of such statement or conversation, is to examine the person whose statement or conversation has been tape-recorded, to put the recording to him, and then to let him say what he has to say about the same. Without this to proceed to rely upon such piece of evidence is to tread on extremely unreliable grounds. The recordings, without examination of the persons whose statements or conversations have been recorded, cannot be taken as reliable piece of evidence which can be depended upon."
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On appeal in that case the Supreme Court of India in S. Partap Singh v. The State of Punjab (A I R1964SC72) remarked that :---- "There are few documents and possibly no piece of evidence which could not be tampered 'with, but that would certainly not be a ground on which Courts reject evidence 'as inadmissible or refuse to consider it. In the ultimate analysis the factor mentioned would have a bearing only on the weight to be attached to the evidence and not on its admissibility. Doubt--less, if in any particular case there is a well-grounded suspicion, not even say proof, that a…
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