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Initializing Secure Chambers
Petitioner: Muhammad Israr son of Siraj alias Wali Muhammad, R/o Marghuz, District Swabi VS Respondent: The State etc
Court Name: Peshawar High Court Judge(s): Rooh-ul-Amin Khan, Ishtiaq Ibrahim Title:Muhammad Israr son of Siraj alias Wali Muhammad, R/o Marghuz, District
Swabi vs The State etc Case No.: Cr. A. No.1143-P/2019 Date of Judgment:2020-03-11 Reported As: 2020 PHC 272 Result: N/A Judgment Rooh-ul-Amin Khan, J. Through this common judgment we proposed to decide the instant criminal appeal whereby the appellant was convicted and sentenced to life imprisonment by the learned Judge, Model Criminal Court, Swabi, vide judgment dated 12.09.2019 in case FIR No. 353 dated 21.06.2007 under section 302 Police Station Zaida, District Swabi, and Cr. R No.245-P/2019 titled "Juma Said vs Muhammad Israr" filed by the complainant against the same judgment for enhancement of sentenced of the appellant from life imprisonment to normal sentence of death. The appellant Muhammad Israr has also filed Cr. A No.1142-P/2019 titled "Muhammad Israr ..vs..The State , wherein, he was convicted to one year R.I by the learned Judge, Model Criminal Court, Swabi, in case FIR No. 396 dated 12.06.2016 under section 15 AA, Police Station Zaida, Swabi and Cr. A No.1329- P/2019 titled "Hafiz Naveed Ahmad..vs..The State ", Cr. A No.1336-P/2019 titled "Rehmat Khan & Others..vs..The State" and Cr. R No.302-P/2019 titled "Faisal Khan..vs. Rehmat Ali & others" being emanating from the judgments of learned Additional Sessions Judge-I/Judge Model Criminal Trial Court, Hangu dated 29.10.2019 in case FIR No.198 dated 22.04.2006 under section 302/324/427/148/1 49 PPC of Police Station Hangu as in all the above noted cases, an important common legal question raised by the counsels for appellants which warranting an appropriate order by this court:- "Whether evidence of prosecution witness(s) in criminal trial(s) can be recorded by the Court through a video call, viber , Skype, IMO, WhatsApp, Facebook Messenger , Line Caller and Video Conference including such other modern devices and applications; if yes, whether such statement(s) would be legal under the law on the face of section 353 of the Code of Criminal Procedure 1898, which is couched in a language that except as otherwise expressly provided, all evidence taken under Chapters XX, XXI, XXII and XXII-A) shall be taken in presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader . And finally what would be
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the admissibility of such evidence under the provisions of the Qanun-e-Shahadat Order , 1984, particularly its Article 164? 2. During arguments in the case in hand, the above formulated question raised in the matrix of the following facts:- According to FIR, on 21.06.2007, complainant Juma Said, in company of dead body of his brother , namely; Abdullah deceased, reported in Police Station Zaida to the effect that on the eventful day he along with his brothers, Abdullah, Bahadar and son Saeedullah, after finishing their Tandoor work in Marguz Bazzar , was on the way to home and when reached near the house of one Nizar , accused Muhammad Israr, duly armed with firearm, emerged there and opened fire at the deceased, as a result, he got hit and died at the spot. Besides him, the occurrence is stated to have been witnessed by PW Bahadar Jamil and his son Saeedullah. A dispute over the cooking of bread between the deceased and the accused/appellant has been advanced as motive behind the crime. After completion of investigation, initially challan under section 512 Cr.P.C was submitted against the appellant before the learned trial court, where he was declared as proclaimed offender vide order dated 10.03.2008. On 09.06.2016, the appellant was arrested; as such supplementary challan was submitted against him before the learned trial court, where he was formally charge sheeted to which he pleaded not guilty and claimed trial, hence, evidence of the prosecution was invited. Since, PW Saeed Ullah was in Saudi Arabia in connection with earning his livelihood, hence, on 09.07.2019, his statement was recorded by the learned trial court as PW.9 via video call on IMO. In cross-examination, the said PW while replying to a question stated that he is present in his residential room at Saudi Arabia when his statement is being recorded. Similarly , in connected cases, statement of Faisal Khan complainant, an eyewitness has been recorded as (PW .6) through video call from Dubai. 3. The case was earlier fixed for 05.11.2019, wherein during arguments, learned counsel for the appellant-convict, at the very outset, raised a challenge mainly on the ground that recording evidence on any kind of video device from a foreign State, when a witness admitting the factum of his presence in his personal residential room, would not meet the requirement of section 353 Cr.P.C., according to which all evidence shall be taken in presence of the accused or when his personal attendance is dispensed with, in presence of his pleader . He argued that physical presence of a witness at the time of recording evidence is necessary before the court for the purpose of ensuring decorum of the court and to avoid any untoward situation. He further contended that in case of recording evidence through video call, if a witness intentionally offends or interrupt proceedings befor e a Public Servant sitting in the judicial proceedings, his action cannot be controlled by the presiding officer of the court and this shall not only violate the sanctity , decorum and prestig e of a court, but the disobedient and disdainful witness would also be beyond the punitive provisions of the law. He pointed out that apart from above, there may be every possibility of such witness being coached or tutored while giving evidence, and in that case, the witness will not be under the control of the Court. He emphasized that the advantage of the proceedings having been conducted in open court as required under section 352 PPC, in an evidence recorded through mobile device or video link, as the public would have no access to attend the proceedings like they could have in open Court. 4. When the learned AAG for the State and learned counsel for the complainant were confronted with the submissions of learned counsel for the appellant, they requested for time to meet the arguments addressed by learned counsel for the appellant. Their request was acceded to, hence, the case was posted to 07.11.2019. On the said date, learned counsel for the respondent/complainant requested for further time to assist the court. Mr. Gohar Ali Advocate, present in the court was also appointed as Amicus Curie to assist the court with research based studies on the issue. 5. Today arguments of learned counsel for the parties along with Mr. Ali Gohar Durrani, Advocate, amicus curae heard and research work on the point perused which reflects that except Pakistan and Australia, in all the developed countries of the world no endeavor is made to provide a specific provision for recording evidence via video link or modern electronic devices. The International Law provides certain provisions, according to which a witness not able to appear before the court, is allowed to record his statement through video link. Instance of the International Criminal Court (ICC) may be quoted here, which allows a witness, who is absent from the courtroom, to record testimony through video link subject to submission of application with reason of inability to personally
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appear before the court and the rules and regulations are to be followed. Article 69(2) of Rome Statute, Rule 65 of the ICCs Rules of Procedure and Evidence, Rule 61 of ICCs, Regulation of the Office of Prosecutor and Regulation 45, 46 and 47 of the ICCs, are statutory provisions regulating the procedure and arrangement for allowing and recording evidence via video or audio link. In April 1997, the Prosecution brought a Motion (application) before the Trial Chamber of International Tribunal for Former Yugoslavia in case titled, "Prosecutor Vs Zejnil Delalic" for allowing the recording of certain prosecution witnesses by means of video link. The Tribunal after scanning all the ICCs Laws regulating the provision of allowing appearance and examination of witnesses through video link, observed that:- "Video-conferencing is, in actual fact, merely an extension of the Trial Chamber to the location of the witness. The accused is therefore neither denied his right to confront the witness nor does he lose materially from the fact of the physical absence of the witness. It cannot, therefore, be said with any justification that testimony given by video link conferencing is a violation of the right of the accused to confront the witness. Article 21(4)(e) is in no sense violated." The Trial Chamber of ICC in the above titled case relied upon the earlier decision on the subject matter rendered in Tradic case, wherein law was set forth to the effect that the evidentiary value of the testimony provided by video link would be practicable and reliable subject to fulfillment of the required guideline enumerated in Para No.22 of the decision:- "The Trial Chamber acknowledges the need to provide for guidelines to be followed in order to ensure the orderly conducted of the proceedings when testimony is given by video link. First, the party making the application for video link testimony should make arrangements for an appropriate location from which to conduct the proceedings. The venue must be conducive to the given of truthful and open testimony . Furthermore, the safety and solemnity of the proceedings at the location must be guaranteed. The non- moving party and the Registry must be informed at the every stage of the efforts of the moving party and they must be in agreement with the proposed location. Where no agreement is reached on an appropriate location, the Chamber shall hear the parties and the Registry and make a final decision". 6. The Courts, in various foreign jurisdictions, have employed the use of technology for the purpose of recording of evidence. The United State of America (US) allows the video conferencing and its Federal Court of Claims have provided guidelines for the use of video conferencing. Similarly , the Supreme Court of Florida, while dilating upon the issue of recording evidence by means of video conferencing, in case titled, "David Harrell Vs State of Florida" (Fla. 1998) made the following observations:- "We also acknowledge that possible audio and visual problems can develop with satellite transmission. It is incumbent upon the trial judge to monitor such problems and to halt the procedure if these problems threaten the reliability of the cross-examination or the observation of the witness' s demeanor . Our court is mindful of the importance of today' s decision. Yet, we are also mindful that our society and indeed the world, is in the midst of the information Age. Computers are the norm in America n households and business; an infinite amount of information is available at our finger tips through the internet and satellite technology allows us to travel the world without ever leaving our living rooms. The legal profession has also benefitted from these technological innovations. Legal research that once took hours or days is now available in seconds through computer and internet databases. Clients can reach their attorneys anywhere in the world through the use of cellular and video innovation. The list goes on and on. Indeed, our very own court takes pride in the recent technological advancements that have been made. Oral arguments before the court are broadcast live via satellite throughout the state. These same arguments can be viewed online, along with the parties briefs. The Florida Supreme Court Website has received world wide acclaim for opening up the court house doors to the general public. All of these steps provide greater access to the judicial system, which in turn increases public trust and awareness. That being said, it becomes quite clear that courtrooms of this state cannot sit idly by, in a cocoon of yesteryear , while society and technology race towards the next millennium. Fortunately , the courtrooms of this state have not been idle nor are they speeding at a reckless pace. Recent changes in the courtroom have included the use of
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audiotape stenographers as well as video transmission of first appearance, arraignments, and appellate oral arguments, just to name a few . We recognize that there are generally costs associated with change. Nevertheless, technological changes in the courtroom cannot come at the expense of the basic individual rights and freedoms secured by our constitutions. We are confident that the procedure approved today , when properly administered, will advance both the access to and the efficiency of the justice system, without compromising the expectation of the safeguards that are secured to criminal defendants." In Minnesota Court of appeals (US) in a case titled, "State vs Sewell , the appellant, namely , Jaffery Edward Sewell challenged his conviction for seco nd degree felony murder on the grounds that the trial court' s allowance of testimony through Interactive Television (ITV) impaired his constitutional right of confrontation and prosecutorial misconduct during final arguments deprived him of a fair trial. The appeal was heard and finally the Court concluded that the testimony of a witness recorded through ITV did not violate the Confrontation Clause Rights under the sixth Amendment to the United States Constitution or Article 1, section 6 of the Minnesota Constitution when the use of ITV was an extension of Minn.R.Crim P.21 The statements made by the prosecutor , during closing argument, did not prejudice appellant or deny him a fair-trial. The use of video link/skype/video conference in Court proceedings and for recording of evidence of witnesses is in practice all over the world. In the United States of America in case titled, "Maryland Vs Craig (497 U.S. 836(1990) which is a leading case on the subject, the Supreme Court of United States has held that recording of evidence by video conferencing did not offend the Sixth Amendment (Confrontation Clause) and accepted child witness testimony via a one-way video. In case titled, "David Harrell Vs State of Florida" (709 So.2nd 1364 (Fla.1998), the Florida Supreme Court sustained a robbery conviction based on largely on the two-way video testimony of complainants testifying from Argentina. In United States Vs Gigante (166 F.3rd 75, 84 (2nd Cir.1999) , the U.S. Court of appeals concluded that video-conferencing did not violate the U.S. confrontation clause. This case involved the testimony of a witness procured through video conferencing technology because the witness was too ill to testify at trial. The Court decided that two-way video technology adequately met the central concerns of the Constitution because the witness was sworn; he was subjected to full cross-examination; he testified in full view of the jury, Court, and defence counsel, and gave his testimony under the eye of Gigante- the defendant himself. In Ireland, section 13 of the Criminal Evidence Act, 1992 enacts that any person other than the accused whether he be within or outside the State can give evidence through television link. Such evidence is also required to be video recorded. Similarly , in Australia, section 47-C to 47-E of the Federal Court of Australia Act, 1976, deal with recording of evidence through video/audio links or other appropriate means. New South Wales has enacted Evidence (Audio and Visual Links) Act, 1998 No.105 (NSW) to facilitate the taking of evidence, and the making of submissions, by audio links and audio video links. In the United Kingdom, the Access to Justice Act, 1999, allow video conferencing to be used for civil hearing. On the other hand, section 51 of the Criminal Justice Act, 2003, enables the Court to allow witnesses (other than the defendant) in the United Kingdom to give evidence by live link if the court is satisfied that giving evidence in this way is in the interest of efficient or effective administration of justice. Moreover , under Youth Justice and Criminal Evidence Act, 1999, evidence of vulnerable, intimidated or other witnesses can be recorded through video links. In Canada, rule 1.08(1) of the Rules of Civil Procedure permits trial evidence by telephone or video-conference then it is open to the Court on motion or on its own initiative to make an order directing a video-conference on such terms as are just. In South Africa, Section 158(2) of the Criminal Procedure Act, 1977 (Act No.51 of 1977), as amended by the Criminal Law (Forensic Procedures) Amendment Act, 2010, specifies the instances in which a court may allow evidence to be taken through close-circuit television or similar electronic medium. 7. In yet another instance, the Federal Court of Australia also allows recording of evidence through video- conferencing, either in case of absence or protection of witnesses. The Federal Court Act, 1976 of Australia has left the recording of evidence through digital video link at the discretion of the court. According to the Act ibid, any proposal for recording evidence shall be decided by the court, after hearing parties to the proceedings. It further provides that the law for enabling a person to place proposal before the Court for recording testimony via video sources or the court or judge may allow evidence on own initiative keeping in view the benefits of use of video
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links. Likewise the Federal Court Rules 2011 have been framed which provide elaborate guidelines for video conferencing in the court proceedings. Besides, complementary legislation has been enacted in Australia and New Zealand which enable both the courts in each country to take evidence via video conferencing from a witness in the other country . In addition, the Hague Convention of March 18, 1970 on the taking of evidence abroad, in civil or criminal matters provides for a frame work may be used to facilitate the taking of evidence via video conferencing in countries that have acceded to that convention, subject to certain prohibitions or restrictions existing in the acceding countries. On 14th September , 2005, the Attorney General Australia tabled a Bill for amendment in the Crime Act 1914 to create new video link evidence provision applicable to the proceedings for terrorism and other related offence and proceeds of crime proceedings relating to those offences. The Bill received Royal assent and it was enacted under the name and style of "Law and Justice Legislation Amendment (Video Link evidence and other Measures) Bill 2005, which allowed evidence by using video link from overseas witnesses who are unable to travel to Australia to be put before the court using video link technology . For monitoring the conduct and demeanor of the witness, the presence of an Australian observer at the witness end was held to be necessary . The Bill also amended the foreign Evidence Act, 1994 to reflect in corresponding terms that admissibility of foreign evidence, such as video tapes and transcript for terrorism offences, where video link itself is not possible, again changing the onus on the defendant to prove a substantive adverse effect on the right to fair hearing. In essence, the Australian State generally provides for the witness to record evidence on video link in order to reduce movement to the court and even to the access to minimize the threat or danger to life in terrorism cases. 8. In the Indian legal system, evidence is collected under the Indian Evidence Act, 1872, whereas in criminal cases the Criminal Procedure Code specifies the procedure of collecting and recording evidence, so much so the court has the power to compel a person to appear before it for giving evidence. Indian statute does not have specific provision for recording evidence via video link, however , through judicial pronounce ments, the amendment made in Evidence Act by insertion of sections 65-A and 65- a special provision as to admissibility of Electronic Recording was introduced and stretched, rather broadly interpreted that the frame work and parameter for the use or admissibility of Electronic evidence also include the evidence recorded throug h video conferencing. Initially , question recording evidence through video facility befell before the court of Magistrate as a trial Court at Mumbai India, in a complaint case registered against Dr. Praful B. Desai by Mr. PC Singh. During trial, the prosecution submitted an application for examining of Dr. Greenberg (settled in USA) through video link, which was accepted by the trial court. The respondent challenged that order before High Court which was allowed and by setting aside the order of trial court, the application for examining the witness through video link was rejected. The complainant, as well the State approached the Supreme Court of India through Special Leave Petition (Criminal (SP). The Supreme Court on scanning the Criminal Procedural law, Evidence Act and judgments of various courts allowed the application for recording testimony of witness via video link vide judgment dated 01.04.2003, reported as "the State of Maharastra Vs Dr. Draful B. Desie" (AIR 2003 SC 2053) . On disposal of the appeal the Supreme Court set-aside the impugned judgment of the High Court and the trial Court/Magistrate was allowed to have the evidence of Dr . Green berg recorded by way of video conference. 9. In Pakistan, Article 164 of the Qanun-e -Shahadat Order , 1984 ("the Order 1984") deals with the production of evidence that has become available because of modern devices, etc, and by adding/inserting proviso to the said Article, conviction on the basis of modern devices or techniques may be lawful. For the sake of convenience and ready reference, Article 164 of the Order , 1984 (ibid) is reproduced below:- "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. Provided that conviction on the basis of modern devices or techniques may be lawful". The word "evidence" provided in the above quoted Article is defined in Article 2(1) (c) of the Order , 1984, which 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 documents produced for the inspection of the Court, such documents are called documentary evidence. Similarly , under Article 2 (b ) of the Order , 1984, "document" means 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, for the purpose of record that matter . Illustrations A writing a 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. Article 2(1)(c ) of the Order , 1984 speaks about the "evidence" but it is interesting to note that the Legislature has not defined meaning of the evidence rather has mentioned that evidence "includes" a statement that the court "permits or requires" to be made and/or all documents produced. It is settled principle of law that the word "include" is always used in "interpretation clause" in order to enlarge the meaning of the word and phrase occurring in the body of a statute. Similarl y, the words "etc" inserted in Article 164 of the Qanun-e-Sh ahadat Order , 1984, also enlarge the meaning of the Statute to the extent of the modern devic e which will include all modern scientific devices of the present age. Reading of the above quoted provision of the Qanun-e-Shahadat article well make it abundantly clear that production of evidence through modern devices has been left to the discretion of the trial court. Such evidence may only be allowed if the court considers it appropriate. Article 130 of Qanun-e- Shahadat Order , 1984 though aims to regulate procedure for production and examination of witness in court, but in absence of any such provision in Criminal or Civil Procedure Code, the court shall exercise its discretion and may adopt any appropriate procedure for recording of evidence. 10. Chapter-XXV of the Code of Criminal Procedure, 1898 "the Code" particularly , section 353 thereof, lay down a mechanism of taking and recording of evidence in the inquires and trials in criminal case, however , it does not provide specifically for taking of evidence through video conferencing, but at the same time, there is no provision in the Code which prohibit taking and recording of evidence in this manner . For the sake of convenience…
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