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Petitioner: GOVERNMENT OF SINDH through AdvocateGeneral, Sindh VS Respondent: FAHAD NASEEM JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui, S. A. Sarwana Title:GOVERNMENT OF SINDH through AdvocateGeneral, Sindh vs FAHAD NASEEM
JUDGMENT
Reported As: 2002 P Cr. L J 1765 Result: Order accordingly Judgment JUDGMENT ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- This revision application under sections 435, 439 and 461-A, Cr.P.C. Is directed against the order, dated 28-5-2002, by the learned Judge, Anti-Terrorism Court, Hyderabad and Mirpurkhas Divisions, at Hyderabad. 2. Briefly stated the relevant facts giving rise to this revision application, are that the respondents are facing trial under Anti-Terrorism Act, 1997, on the charge of committing offences punishable under sections 365-A, 368, 302, 109, 201 and 120-A/34, P.P.C. Read with sections 7 and 8 of the Anti- Terrorism Act, 1997. The prosecution case is that the respondents abducted deceased Daniel Pearl, an American Journalist and subsequently, committed his murder. During the course of trial, in Special Case No,26 of 2002, the prosecution produced a video, cassette containing a film showing slaughtering of deceased Daniel Pearl with knife, whereby his neck was shown to have been cut through and through. This video cassette was received by an F.B.I. Agent at the American Consulate. The cassette was admitted in evidence and was brought on record of the proceedings. The original was returned to F.B.I. And an authenticated copy Was made a part of the case proceedings. 3. The learned Advocate appearing for the respondents submitted an application on 15-5-2002, stating that the video cassette has been produced by prosecution witness No,12 and has been brought on record as Article 1. It was further averred in the application that the video cassette has been displayed in the presence of prosecution, the defence and other persons in the Office of Superintendent Jail, Hyderabad, where the case is proceeding. It was contended in the application that the defence intends to establish that the said video cassette is fake and is not genuine. It was
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stated in the application that the said video cassette can be prepared, of any person, who is alive. It was prayed that a certified copy of the video cassette available on the record of the Court be supplied to the accused persons. The learned Advocates for the accused/respondents stated in the application that the prosecution witness who has produced the video cassette in Court has prepared 4 copies from the original cassette and that the CNN Reporter has already seen the video cassette and has reported the same as Well. The copies of the said video cassette have already been supplied to the Government of Sindh. Government of Pakistan and the Government of U.S.A. According to them it was required by the accused/respondents for the purpose of defending the charge. 4. The learned trial Court heard Mr. Rai Bashir Ahmed, a learned defence counsel, as well as Mr. Raja Qureshi, learned Advocate-General, Sindh. The learned Advocate-General, Sindh, opposed the grant of application for the reason that if the copy of the video cassette is given to the defence side, there will be a massacre of Muslims in the world. 5. The learned trial Court after hearing Advocate for the parties held that the video cassette has been exhibited as Article 1. It has been produced by P.W. John Moligan, and has become part of the proceedings which forms basis of the prosecution charge against the accused persons. The learned trial Judge further held that he deemed it fit to grant the copy of cassette for proper adjudication of the case. He, therefore, allowed the application and directed the supply of the certified copy of the cassette on payment of usual cost. 6. Being aggrieved with the above order, the learned Advocate-General has preferred this revision application. It is averted in the memo. Of revision petition that the application for certified copy of video cassette was submitted under sections 265-C/548, Cr.P.C. Read with Article 87 of the Qanun- e-Shahadat Order, 1984, on the premises that it was a case property and, therefore, it should be made available to defence. It is further contended in the revision petition that according to defence the video cassette has been prepared through modern devices, therefore, it is a document and thus, it should be provided to the accused persons. According to memo. Of revision petition three earlier applications in this behalf were rejected and there was no fresh ground for granting the application. It is further stated in the memo. Of revision that the accused persons and the defence counsel had agreed to view the video cassette in Court for the purpose of cross- examining P.W. 12, Mr. John Moligan, through whom the video cassette was brought on record and after watching the video cassette, the prosecution witness No,12, was extensively cross-examined by the defence. 7. The following grounds have been urged in support of the revision application and assailing the impugned order:-- (1) The video cassette is being sought at belated stage when the prosecution witnesses have already been subjected to cross-examination. (2) The contents of the video cassette are extremely sensitive and, therefore, it is neither in the interest of prosecution nor defence to supply the copy thereof to the defence and the national interest requires the withholding of release of the video cassette. It should not be viewed by the public at large nationally and internationally, which is likely, 'in the event of release of the video cassette to the defence. (3) The contents of the video reflect a gruesome murder by way of slaughtering which will create fear in the mind of the public at large and if viewed by the public it is likely to create a sense of fear and insecurity in the general public nationally and internationally. The viewing of the video reflecting the slaughtering of deceased would be instrumental to acts of terrorism internationally and could result in massacre of Muslims and religious sects nationally and internationally. (4) The seeking of video recording and grant of the same is likely to incite hatred and contempt on religious, sectarian, or ethnic basis, to stir up violence and is likely to affect the external affairs of
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Pakistan. The release of the video cassette is likely to affect the daily business and disturb civil life, if it is exhibited from any channel of electronic media. 8. We have heard Mr. Raja Qureshi, learned Advocate-General, for the applicant/State and Messrs Abdul Waheed Katpar and Rai Bashir Ahmed, learned Advocate for the respondents. 9. The first contention raised by the learned Advocate-General is, that, video cassette is not a document and is a crime article, therefore, accused persons are not entitled in law to have the certified copy thereof. In this regard he has referred to section 29, P.P.C. And Article 2(1)(b) of Qanun-e-Shahadat Order, 1984, in which the term document has been defined. These sections read as follows:-- ' Section 29, P.P.C. "Document". The word "document" denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter. Explanation 1.--- It is immaterial by what means or upon what substance the letters, figures, or marks are formed, or whether the evidence is intended for, or may be used in, a Court of justice, or not. Illustrations.--- A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document. ' A cheque upon a banker is a document. A power-of-attorney is a document. ' A map or plan which is intended to be used or which may be used as evidence, is a document. Explanation 2.--- Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed. Article 2(1)(b), Qanun-e-Shahadat Order, 1984. Interpretation.--- (1) In this. Order unless there is anything repugnant in the subject or context. (b) "document" means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter. Illustration.--- A writing is document. Words printed, lithographed or photographed are documents; ' A map or plan is a document; ' An inscription on a metal plate or stone is a document; A caricature is a document. 10. He has further submitted that the video cassette is not a document and is a crime article because it contains a film showing gruesome manner of murder of the deceased and said act is an offence under section 8(c) of the Anti-Terrorism Act, 1997, and the accused/respondents have been charged with the commission of offence under section 8(c) of the Anti-Terrorism Act as well. For the sake of convenience the provisions contained in section 8(c) are reproduced below:-- "Section 8. Prohibition of acts intended or likely to stir up sectarian hatred.--- A person who, (c) distributes or shows or plays a recording of visual images or sounds which are threatening abusive or insulting; shall be guilty of an offence if--- (i) he intends thereby to stir up sectarian hatred, or (ii) having regard to all the circumstances, sectarian hatred is likely to be stirred up thereby." 11. He has further referred to Articles 5 and 40 of the Constitution of Islamic Republic of Pakistan, 1973, which read as under:-- "5. Loyalty to State and obedience to Constitution and law.--- (1) Loyalty to the State is the basic duty of every citizen. (2) Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.
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Article 40. Strengthening bonds with Muslim world and promoting international peace. The State shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means." 12. The learned Advocate-General has further referred to Article 87 of the Qanun-e-Shahadat Order, 1984, which is reproduced below:-- "87. Certified copies of public document.--- Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof as the case may be and such certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies." 13. While concluding his arguments, the learned Advocate-General laid great emphasis on the point that if video cassette is released there is a potential risk of being put the same on any web site resulting in public display which is against the national and international interest of the country. However, he frankly referred to a news item in daily "The News", according to which the video cassette was already being displayed on web sites in America. The F.B.I. Issued a prohibition order restraining the display of the video cassette. For few days the display of video cassette, on web site, was discontinued but it was again put on five web site channels. The prohibition order issued by the F.B.I. Was not obeyed for the reason that it was against the fundamental rights guaranteed in the Constitution of the United States of America. He, however, submitted that notwithstanding, the display of video cassette on several web sites, the learned trial Court was not justified in granting the application for supplying the certified copy of the video cassette, for the reason that so far, unauthorized and unauthenticated versions of the video cassette are being displayed on the web sites and in the case of release of the certified copy an impression would be given that it is being shown under the authority of the Court. 14. On the other hand, the learned Advocates for the respondents have vehemently refuted all the contentions raised by the learned Advocate-General, Mr. Abdul Waheed Katpar, the learned senior counsel appearing for the respondents/accused has submitted that the learned Advocate- General has referred to the definition of document contained in Article 2(b) of the Qanun-e- Shahadat Order, 1984, but a bare perusal of this Article shows, that the contention, that video cassette is not a document is untenable. He has drawn our attention to second illustration, to Article 2(b) of Qanun-e-Shahadat Order, 1984 which says that the words printed, lithographed, or photographed are document. He has maintained that, according to definition contained in the said Article, and section 29, P.P.C. The document denotes any matter expressed or described upon any substance by means of letter, figures or marks. He has contended that the video cassette consists of the figures recorded by modern device on a film and as such it is fully covered within the definition of document. 15. He has further submitted that the accused persons are fully entitled to obtain the certified copy of the video cassette which has been admittedly brought on record, by virtue of the provisions contained in section 548, Cr.P.C. Which reads as under:-- "548. Copies of proceedings.--- If any person affected by a judgment or order passed by a Criminal Court desires to have a copy of any order or deposition or other part of the record he shall, on applying for such copy, be furnished therewith: Provided that he pays for the same, unless the Court, for some special reasons thinks fit to furnish it free of cost."
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16. He has further argued that with the release of video cassette, there should be no embarrassm ent, to the Government, as it is already in possession of the Government of Sindh, the Government of Pakistan, the Government of U.S.A. And is being displayed on five web sites. He has further given an undertaking that the defence shall not release the video cassette to any web site or T.V. Channel and it will be shown to an expert only for the purpose of leading the evidence and establishing that the video cassette is a fake one. 17. Mr. Rai Bashir Ahmed, learned counsel for the respondents has submitted that the prosecution witness who produced the video cassette has conceded in cross-examination, that, the modern science has so much developed, that, a fake cassette can be made similar to the Article 1, produced by the prosecution. The learned counsel has vehemently argued that on legal plane, the respondents are entitled to obtain the certified copy of the video cassette as admittedly it has been made a part of the Court proceedings, and all the apprehensions expressed by the learned Advocate-General are absolutely unfounded, because admittedly the video cassette in question is already being shown round the clock on at least five different web sites, and so far, no such consequences have followed as apprehended by the learned Advocate-General. The learned counsel was holding a C.D. In his hand at the time of arguments and stated, that a day earlier, one boy handed him over a copy of video cassette which was now in his hand. He submitted that, it shows that the video cassette is available freely, all over the world. However, the respondents/accused require a certified and authenticated copy of the video cassette so that it may be provided to an expert for establishing that it is a fake video cassette and no conviction can be recorded on the basis of said video cassette. During the course of arguments he has stated that the accused persons are not shown in the video cassette and the learned trial Court has rightly directed for supplying of the certified copy of the video cassette, because the refusal would seriously prejudice the defence of the accused persons. 18. I have carefully considered the contentions raised by the learned Advocates for the parties. After a very anxious consideration I am of the opinion that the entire argument of the learned Advocate- General on the point of law is based on the wrong premise. The averments made in the memo. Of revision to the effect that the application for certified copy of video cassette was submitted by the learned defence counsel under section 265-C and Article 87 of the Qanun-e-Shahadat Order, 1984 as well as under section 548, Cr.P.C. Is factually and legally incorrect. A perusal of the application on record shows that no particular section is cited in the application. In the absence of any particular provision of law, cited by a party, it is the duty of the Court to examine under which provision of law an application or any other proceedings have been initiated. It has to be decided on the basis of substance contained in the application or any other pleading. A perusal of the application dated 15-5-2002 shows that the learned counsel for the respondents has merely submitted that P.W. No,12, has produced a video cassette, which has been shown to the prosecution, defence and other persons in the office of Superintendent- Jail and it has been brought on record, which is required to be shown to an expert who shall be examined in defence to establish that the video cassette is a fake one, therefore, a certified copy be directed to be supplied to the defence. Now, if we peruse section 265-C, Cr.P.C. It speaks of supplying of statement and documents to be accused free of costs before the commencement of trial. It does not speak of entitlement of a person to obtain certified copy of a document or any part of the record. So far, Article 87 of the Qanun-eShahadat Order, 1984 is concerned, it provides the procedure for supplying the certified copies of public documents, by the public officer, who is authorized to deliver such copies. It has nothing to do with the right of any person affected by judgment or order for obtaining the certified copy of an order, deposition etc. The right to obtain a document, and the procedure, manner and the person authorized to issue the certified copies are absolutely distinct matters.
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19. I am of the considered opinion that Mr. Abdul Waheed Katpar, the learned senior defence counsel has rightly submitted that the accused/respondents are entitled for the certified copy of the video cassette by virtue of the provisions contained in section 548, Cr.P.C. He has drawn our attention to the contents of section 548, Cr.P.C. A perusal of this section shows that it does not speak of a document, as such. It says that, "if any person affected by a judgment or order passed by a criminal Court desires to have a copy of any order or deposition or other part of the record (underlining is mine) he shall, on applying for such copy be furnished therewith". According to Mr. Katpar, the video cassette is admittedly a part of the record and whatsoever, be the status of the matter forming part of the record, a person affected is entitled to be furnished with the copy thereof. I am persuaded to agree with -the submission of Mr. Abdul Waheed Katpar. Since the entitlement of an affected person under section 548, Cr.P.C. Is not confined to a document, therefore, the entire arguments directed on the point that the video cassette is not a document but is a crime article, therefore, the respondents are not entitled for the certified copy of the video cassette is totally misplaced. Even otherwise, the video cassette falls within the purview of document for the reason that the definitions of document contained in section 29 of the Pakistan Penal Code and Article 2(b) of Qanun-e-Shahadat Order, 1984, leave no scintilla of doubt in my mind, that, the video cassette squarely falls within the purview of "matter expressed or described upon any substance by means of letters, figures or marks". The Explanation 1 to section 29, P.P.C. Further supports this view which says that it is immaterial by what means or upon what substance, letters, figures or marks are formed. 20. Section 3(16) of the General Clauses Act, 1897, describes document as follows:-- "Section 3(16), 'document' shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used for the purpose of recording that matter." 21. A perusal of the above section also shows that the definition is inclusive and not conclusive and further it pertains to any matter written, expressed or described upon any substance by means of letters, figures or marks which is intended to be used or which may be used for the purpose of recording that matter. The word "matter" has been defined in the Chambers 20th Century Dictionary (New Edition 1983) as, "that which occupies space, and with which we become acquainted by our bodily senses". I am, therefore, of the opinion that the video cassette, is a matter expressed through figures or marks and thus falls within the purview of expression "document" defined in the Pakistan Penal Code, Qanun-e-Shahadat Order, 1984 and the General Clauses Act, 1897. There can be no two opinions on the point that a still photograph is a document. I, therefore, do not find any reason to exclude the movie film, which is also a photograph, from the purview of document. The contention that the movie contains such material, the display whereof is an offence under section 8(c), A.T.A., and therefore, it is merely a crime article and not a document is also untenable. It can be illustrated by an example. If a pamphlet, a banner, a booklet or an advertisement contains such material, the publication, distribution, display or exhibition whereof is an offence, it may be treated as a crime article. However, it will not lose its character as a documents and whenever produced in evidence in Court, it shall be treated as documentary evidence. The illustration can be multiplied, but I do not intend to do it, for the sake of brevity. I am further supported in my above opinion with the provisions contained in Articles 164 and 2(1)(c) of Qanun-e-Shahadat Order, 1984, which read as follows:-- "164. Production of evidence that has become available because of modern devices etc.--- In such cases as the Court may consider appropriate the Court may allow to be produced any evidence that may have become available because of modern devices or techniques." "2. Interpretation (1).--- In this order unless there is anything repugnant in the subject or context- (c) 'evidence' includes---
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(i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; and (ii) all document's produced for the inspection of the Court; such documents are called documentary evidence." 22. The attention of learned Advocate-General was drawn to the provisions contained in Article 164 of Qanun-e-Shahadat Order, 1984 and he frankly conceded that the video cassette was available because of modern devices and techniques, therefore, it was produced in evidence by the prosecution, under Article 164 of the Qanun-e-Shahadat Order, 1984. A perusal of the Article 2(c) above shows, that, the evidence has been subdivided in two categories. In first category, are included all statements which the Court permits or requires to be made before it by the witnesses in relation to the matter of facts and inquiry and such statements are called oral evidence. The second category, includes all documents produced for the inspection of the Court and such documents are called documentary evidence. Thus, every evidence produced before the Court is either oral evidence or documentary evidence. Applying this test to the testimony of P.W.12, I find, that his statement made before the Court falls within the category of oral evidence, and the video cassette produced by him falls within the category of documentary evidence. It is salutary principle of the interpretation of statutes, that all the provisions in a statute are to be read together. Applying this principle, when the provisions contained in Article 164 and Article 2(c) of the Qanun-eShahadat Order, are read together, they lead to the only conclusion that the video cassette produced by the prosecution and brought on record is a document. 23. Now I will revert back, once again, to the provisions contained in section 548,…
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