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Official Citation: 2024 LHC 5682
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-08-21
Parties: National Accountability Bureau vs Ch. Parvez Elahi etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-08-21, officially reported as 2024 LHC 5682. In this matter between National Accountability Bureau and Ch. Parvez Elahi etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024LHC5682
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: National Accountability Bureau vs Ch. Parvez Elahi etc Case No.: Writ Petition No.48984/2024 Date of Judgment:2024-08-21 Reported As: 2024 LHC 5682 Result: Petition Dismissed
JUDGMENT
"Society wins not only when the guilty are convicted but when the criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly." - Brady v. Maryland, 373 U.S. 83, 87, (1963)
JUDGMENT Tariq Saleem Sheikh, J. - The Petitioner, National Accountability Bureau (NAB), has filed Reference No. 06/2023 (the "Reference") under section 24(b) of the National Accountability Ordinance, 1999 ("NAO"), against Respondents No. 1 & 2 and others, alleging corruption and corrupt practices. The Reference is currently pending trial before Accountability Court No. X, Lahore. 2. On 01.02.2024, the Accountability Court provided copies of the Reference along with the annexed documents/evidence to Respondents No. 1 & 2, as well as the other accused, in terms of section 24(b) of the NAO, read with section 265-C of the Code of Criminal Procedure, 1898 ("Cr.P.C."), and scheduled the case for indictment on 14.02.2024. However, the charges were not framed on that date, and the case was adjourned. 3. On 19.03.2024, Respondents No. 1 & 2 filed two separate applications before the Accountability Court. Respondent No.1 submitted that when the NAB initiated the proceedings, Mahr Azmat Hayat and Sohail Akram were among his co-accused and participated in the inquiry as accused persons. Subsequently, both received pardons and became approvers. Now, they are listed as prosecution witnesses in the Reference. Respondent No.1 asserted that the prosecution had deliberately failed to append the previous statements of these approvers with the Reference and had not provided their copies to him.
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4. In his application, Respondent No.2 stated that several persons joined the inquiry and investigation of the case. The Inquiry Officer's report dated 06.07.2023 reflected that he had recorded the statements of eleven (11) persons, namely Amir Allah Ditta, Farman Iqbal, Asjad Ali, Gulfam Shahzada, Malik Imran, Khurram Sultan, Waqas Shaukat, Muhammad Usman, Tariq Perviaz, the Secretary C&W, and Mahr Azmat Hayat. Respondent No. 2 alleged that the prosecution had intentionally withheld these statements when providing documents under section 265-C Cr.P.C. on 01.02.2024. He claimed he had a right to have these statements and requested the Court's intervention to ensure their copies were furnished to him. 5. The Petitioner/NAB contested both applications, contending that Respondents No.1 & 2 had no right to have copies of the aforementioned statements. 6. The Accountability Court accepted both applications by consolidated order dated 15.05.2024 (the "Impugned Order"). NAB has challenged that order before this Court through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"). The submissions 7. Mr. Waris Ali Janjua, Special Prosecutor for NAB, contends that the Impugned Order is perverse. He argues that it disregards key provisions of the NAO, particularly sections 24(b), 3, and 17, which prescribe a special procedure for filing references and conducting trials in Accountability Courts. He maintains that when a statute prescribes a particular process for prosecuting an offence, it must be adhered to strictly. Mr. Janjua further argues that "inquiry" and "investigation" are distinct legal concepts. The NAO differentiates between these two stages, with an inquiry as a preliminary step to determine whether the case should proceed to investigation or be dropped. He submits that section 265-C Cr.P.C. mandates only the provision of statements recorded during the investigation phase, not those recorded during the inquiry. He asserts that the Accountability Court overstepped its jurisdiction by ordering the supply of statements recorded during the inquiry phase. Mr. Janjua concludes that the Court's failure to recognize this distinction has resulted in a miscarriage of justice and prays that the instant writ petition be accepted and the Impugned Order be set aside. 8. The counsel for Respondent No.1, Mr. Muhammad Nawaz, Advocate, contends that Respondent No.1 is entitled to copies of the statements made by the approvers/witnesses, Azmat Hayat and Sohail Akram, before the grant of pardon, as these fall within the scope of "previous statements" under Article 140 of the Qanun-e-Shahadat 1984 (QSO). He asserts that the failure to provide copies of these statements not only violates the statutory provisions of section 265-C Cr.P.C. but also infringes upon the fundamental rights to treatment in accordance with the law, due process, life, liberty, and a fair trial, as guaranteed by the Constitution. 9. The counsel for Respondent No.2, Mr. Amir Saeed Rawn, Advocate, contends that Article 10A of the Constitution guarantees the right to a fair trial, which includes the full disclosure of evidence. He argues that an accused cannot effectively defend against charges if all evidence gathered during the inquiry or investigation is not disclosed. In particular, the prosecution is obligated to disclose exculpatory material to the defence. Mr. Rawn asserts that, in this case, the previous statements of 11 persons requested by Respondent No.2 are crucial to his defence, and he would be seriously prejudiced if they were not provided to him. Opinion 10. The NAO is a special law that aims "to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices."[1] Sub-section (a) of section 17 of the NAO stipulates that, notwithstanding any other law in force, the provisions of the Code of Criminal Procedure, 1898, shall apply mutatis mutandis to proceedings under NAO unless they are inconsistent with it. Sub-section (b) of section 17 states that, subject to sub-section (a), the provisions of Chapter XXII-A of the Code[2] shall apply to trials under the NAO.
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11. Section 265-C Cr.P.C. mandates that in all criminal cases, copies of statements and documents must be provided to the accused free of charge not later than seven days before the commencement of the trial. In the context of the present case, sub-section (1) of section 265-C is relevant and is reproduced below for ready reference: 265-C. Supply of statements and documents to the accused.- (1) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely: (a) the first information report; (b) the police report; (c) the statements of all witnesses recorded under sections 161 and 164; and (d) the inspection note recorded by an investigating officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any: Provided that, if any part of a statement recorded under section 161 or section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused. 12. In Zulfikar Ali Bhutto v. The State (PLD 1979 SC 53), the Supreme Court held that where the police officer does not record the statement of a witness as required by section 161 Cr.P.C. but writes it in the diary maintained under section 172 Cr.P.C. (presumably as a statement of the circumstances ascertained through the investigation) its copy should also be given to the accused because it is to be reckoned as a statement under section 161 Cr.P.C. 13. The object of section 265-C Cr.P.C. is to enable the accused to know the evidence the prosecution will present against him at trial so that he may prepare his defence and is not taken by surprise. In Muhammad Riaz and another v. The State (PLD 2003 Lahore 290), a Full Bench of this Court observed that this section was introduced to address the gap created by the abolition of commitment proceedings (Chapter XVIII of the Cr.P.C.) and enunciated the following principles: (a) The provisions of section 161, Cr.P.C. are independent of section 172 Cr.P.C. Section 161 requires an Investigating Officer to record statement of a person who is acquainted with the facts of the case separately and section 172 (which is independent) relates to maintenance of case diaries as record of the various stages through which the investigation has passed. It is only the case diaries which are meant to be treated as 'privileged' and shall not be made accessible to the accused. It clearly means that the statements recorded under section 161 of the Cr.P.C. are not privileged even if recorded in the body of the case diaries. (b) Section 265-C(1)(c) Cr.P.C. has impliedly repealed section 162 Cr.P.C. to the extent that it enjoins that when the prosecution produces a witness at the trial whose statement has been recorded under section 161 Cr.P.C., the court shall on the request of the accused direct that a copy thereof be provided to him [in order that any part of such statement, if duly proved, may be used to contradict the said witness in terms of section 145 of the Evidence Act, 1872 (Article 140 of the Qanun-e-Shahadat, 1984)]. (c) The word "witnesses" appearing in section 265-C(1)(c) Cr.P.C. has been used in the broad sense. It covers all those persons who are acquainted with the circumstances of the case and are examined by the Investigating Officer during investigation. (d) The accused is entitled, as of right, to get copies of the statements of all the witnesses recorded under section 161 Cr.P.C. irrespective of the fact whether they have been cited as witnesses in the calendar attached to the challan or not. (e) The statements of the witnesses and other documents mentioned in section 265-C Cr.P.C. must be supplied to the accused at least seven days before the commencement of the trial. (f) Section 265-C Cr.P.C. has no bearing on the question of admissibility of a document or the statement of a witness which is determined in accordance with the provisions of the Qanun-e-
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Shahadat, 1984. 14. The following two legal questions need to be answered before we address the issue raised in this case: I. Are the provisions of section 265-C Cr.P.C. exhaustive, and an accused cannot demand documents other than those specified therein? II. Is the prosecution obligated to disclose/turn over exculpatory evidence to the accused? We take up these questions seriatim.
Question I 15. The procedure outlined in Chapters XX and XXII-A of the Cr.P.C.[3] ensures a fair trial not only for the accused but also for the prosecution and the complainant.[4] Section 265-C, which falls under Chapter XXII-A, plays a vital role in this process by ensuring that the accused is fully informed of the prosecution's case and provided with essential materials to prepare their defence, thereby preserving the integrity of the trial. While the supply of the listed documents is a mandatory legal requirement, the question whether the list is exhaustive must be considered in light of the fundamental rights guaranteed by the Constitution and broader principles of fairness. Section 265- C should be understood as providing the minimum essential materials for the accused to defend themselves and respond to the charges adequately. Courts must retain the discretion to order the disclosure of additional documents whenever necessary to uphold fairness and ensure that justice is served. 16. Section 265-C Cr.P.C. must be read in conjunction with sections 94(1)[5] and 265-F Cr.P.C.[6] Section 94(1) allows the court to make an order for the production of any document if it is necessary or desirable for the trial. In Om Prakash Sharma v. Central Bureau of Investigation, Delhi (AIR 2000 SC 2335), while interpreting section 91 of the Indian Code of Criminal Procedure 1973, which is pari materia with our section 94 Cr.P.C., the Supreme Court of India held that the powers conferred under section 91 are discretionary and enabling in nature. The court should be allowed broad latitude in exercising this discretion, and higher courts should only intervene if the lower court's decision is unreasonable or inconsistent with established judicial principles. 17. The words "whenever" and "thing" in section 94 Cr.P.C. are significant. "Whenever" indicates that a court can exercise the power to require the production of any document or other thing at any stage during an inquiry or trial. The only condition is that it must be necessary or desirable for the proceedings. In The State v. Chaudhry Muhammad Usman (2023 SCMR 1676), the accused was facing trial for certain offences punishable under the Drugs Act 1976 and the Drug Regulatory Authority of Pakistan Act 2012. The Supreme Court of Pakistan considered the questions: (i) whether an accused can request the court, before the commencement of trial, to order the production of documents not covered under section 265-C Cr.P.C., and (ii) whether an accused can make such a request before presenting a defence, despite the existence of section 265-F(7) Cr.P.C., which provides that, after entering on his defence, an accused can apply to the trial court to issue any process for compelling the production of any document. The Supreme Court answered both questions in the affirmative. It ruled that any party may apply to the court for an order under section 94 Cr.P.C., which must allow its request if the condition mentioned above is satisfied (i.e., it is necessary or desirable for the proceedings). It clarified that section 265-F(7) does not control or limit the power of a court under section 94(1). "The provisions of these two sections differ from each other in their extent and scope. They are not opposed to each other. Section 94(1) affords both the parties to an inquiry or trial (not to the accused alone) the opportunity of causing the production of any document at any stage of such inquiry or trial, with the condition that the party applying for it must satisfy the court that the production of the required document is necessary or desirable for the purposes of the inquiry or trial. Section 265-F(7), on the other hand, only gives the accused
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another similar opportunity at the stage of his defence subject to a lesser condition, which is that his application should not be for the purpose of vexation, delay, or defeating the ends of justice." 18. The principle of law that can be deduced from the above discussion is that while section 265-C Cr.P.C. mandates the supply of specific documents to the accused, the court may also direct the prosecution to produce additional materials not explicitly mentioned in the section, and let the accused have access to them. However, in each case, the court must first determine whether the documents the accused requests are necessary or desirable for the trial and would foster justice and fairness. Courts derive this authority from section 94(1) Cr.P.C., and Articles 4 and 10A of the Constitution, which obligate them to ensure that every accused is dealt with according to the law and receives a fair trial. Question II 19. Exculpatory evidence is any information or material that is favourable to an accused in a criminal case. It can take many different forms. It could be direct evidence that points to the accused innocence, evidence that negates an element of the crime, evidence or information that undermines the credibility of prosecution witnesses, or evidence that reduces culpability or lessens the severity of the punishment. Exculpatory material can also encompass forensic evidence, surveillance footage, or investigative leads that suggest the involvement of other suspects/ offenders. 20. The prosecution's duty to disclose exculpatory evidence is fundamental to ensuring a fair trial and upholding the principles of natural justice. In an adversarial system, both the prosecution and the defence must have equal access to relevant evidence, with the prosecution bearing the responsibility not only to secure convictions but also to ensure justice. This includes disclosing evidence that may weaken its case if it serves the interests of truth and fairness. Given its vast resources and investigative machinery, the State wields more power than the average accused, particularly those with limited means. In many cases, the accused lacks the same level of legal expertise, investigative tools, or access to evidence that the prosecution possesses. This imbalance makes the disclosure of exculpatory evidence critical to ensuring a fair trial. Without such disclosure, the accused may be deprived of essential information that could prove their innocence or weaken the prosecution's case. Historically, failures to disclose exculpatory materials, whether through negligence or deliberate suppression, have resulted in numerous wrongful convictions and serious miscarriages of justice. 21. In the United States, the prosecution's duty to disclose exculpatory evidence is not just a procedural; it reflects the broader constitutional principle of due process as guaranteed by the Fourteenth Amendment of the U.S. Constitution. The Amendment ensures that no individual shall be deprived of life, liberty, or property without fair legal proceedings. In the context of a criminal trial, the suppression of exculpatory evidence violates this fundamental right by denying the accused a fair opportunity to present a complete defence. In Brady v. Maryland, 373 U.S. 83 (1963), the defence had requested extra-judicial statements made by Brady's accomplice, Boblit, but they were not provided. At trial, Brady admitted his involvement in the killing but testified that Boblit had strangled the victim. This version was supported by one of Boblit's confessions. The U.S. Supreme Court ruled that suppressing Boblit's statement violated Brady's due process, noting that the statement had been requested and was "material". The Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." The Court affirmed the Maryland Court of Appeals' decision, granting Brady a new sentencing hearing but not a new trial. It underscored that the goal of the criminal justice system is not just to convict but to ensure trials are fair and just, adding that a prosecutor should not be the "architect of a proceeding that does not comport with standards of justice."
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22. Several cases have further refined and expanded the application of the principle established in Brady. In United States v. Agurs, 427 U.S. 97 (1976), the U.S. Supreme Court clarified that the prosecution's duty to disclose exculpatory evidence applies even if the defence has not made a specific request for it. The Court identified three situations in which a Brady claim might arise: (a) when undisclosed evidence shows that the prosecution introduced testimony it knew or should have known was perjured; (b) when the prosecution fails to comply with a defence request for specific exculpatory evidence; and (c) when the prosecution fails to disclose exculpatory evidence, where the defence either makes a request for exculpatory evidence (such as asking for "all Brady material" or "anything exculpatory") or makes no request at all. The Court held that the prosecution's duty applies in the third scenario only if suppressing the evidence would be "of sufficient significance to result in the denial of the defendant's right to a fair trial." The Court explained that the duty to disclose exculpatory evidence arises from its exculpatory nature, not from the specificity of the request. The Brady rule applies both before trial, when the prosecutor must decide what evidence to disclose voluntarily, and after trial, when a judge may need to assess whether non-disclosure deprived the defendant of due process. The same standard of materiality applies in both contexts: the prosecutor's omission must be significant enough to affect the fairness of the trial. No constitutional violation requires the verdict to be set aside if it did not. 23. In United States v. Bagley, 473 U.S. 667 (1985), the U.S. Supreme Court held that the prosecution's failure to disclose evidence that could be used to impeach government witnesses does not automatically require reversal of a conviction. Instead, the Court ruled that such non- disclosure constitutes a constitutional violation only if the withheld evidence is "material." The standard of materiality requires a "reasonable probability" that, had the evidence been disclosed, the outcome of the trial would have been different. A "reasonable probability" is what is sufficient to undermine confidence in the trial's outcome. This standard applies regardless of whether the defence made no request, a general request, or a specific request for the evidence. The Supreme Court clarified that even if the prosecution's failure to respond fully to a specific request for exculpatory or impeachment evidence could impair the adversarial process, this impairment does not necessitate a different standard of materiality. Thus, the reviewing court can directly assess any adverse impact the non-disclosure may have had on the defence's preparation or case presentation. Consequently, the Court reversed the lower court's decision, which had required automatic reversal for failing to disclose the impeachment evidence, and remanded the case for further determination based on the "reasonable probability" standard. 24. In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court emphasized four key aspects of materiality under Brady for determining when suppressed evidence violates due process. First, evidence is deemed material if there is a "reasonable probability" that its disclosure would have led to a different outcome in the trial, without requiring proof that it would have resulted in an acquittal. The focus is on whether the suppressed evidence could have reasonably affected the verdict. Second, the materiality test examines whether the undisclosed evidence would have cast the case in a different light and undermined confidence in the outcome rather than assessing whether the trial evidence was sufficient to convict. Third, once a constitutional violation is established under the Bagley materiality standard, no further harmless-error review is needed, as this standard is stricter than the harmless-error test. Finally, the prosecution's disclosure obligation depends on the cumulative effect of all suppressed evidence favourable to the defence, not on an item-by-item analysis. The prosecutor, who alone may know what evidence is undisclosed, is responsible for evaluating the overall impact and disclosing it once the "reasonable probability" threshold is met. This duty remains, regardless of whether the police fail to inform the prosecutor about the existence of favourable evidence.
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25. Strickler v. Greene, 527 U.S. 263 (1999), once again highlighted the requirements for proving a violation of the Brady rule. In this case, the prosecution failed to disclose police notes and letters that could have been used to impeach a key witness's credibility in a capital murder trial. The Supreme Court reaffirmed that to prove a Brady violation, the accused must demonstrate three elements: (i) the evidence was favourable to the accused, either because it was exculpatory or impeaching; (ii) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (iii) prejudice resulted, meaning there was a reasonable probability that the outcome would have been different if the evidence had been disclosed. The Court concluded that although Strickler showed cause for not raising the claim earlier, the suppressed evidence was not material enough to undermine confidence in the verdict, given the weight of the other evidence presented at trial. 26. In Smith v. Cain, 565 U.S. 73 (2012), the state did not dispute that the eyewitness's statements were favourable to Smith and were not disclosed to him. The Supreme Court held that, under Brady, evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. A "reasonable probability" means that the likelihood of a different result is great enough to undermine confidence in the trial's outcome. Evidence impeaching an eyewitness's testimony may not be material if the state's other evidence is strong enough to sustain confidence in the verdict. In this case, the eyewitness's testimony was the only evidence linking Smith to the crime, and the undisclosed statements contradicted his testimony.…
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