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Petitioner: Shaikh AIJAZUR REHMAN VS Respondent: THE STATE (NAB) through Director-General JUDGMENT
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Ali Sain Dino Metlo Title:Shaikh AIJAZUR REHMAN vs THE STATE (NAB) through Director-General
JUDGMENT
Reported As: PLD 2006 Karachi 629 Result: Petition dismissed Judgment JUDGMENT ' ALI SAIN DINO METLO, J.---Petitioner Shaikh Aijaz-urRehman, facing trial before the Accountability Court No,11, Karachi, by way of this constitutional petition, seeks direction to the trial Court for recording remaining cross-examination of prosecution's last witness Inspector Ghulam Asghar Jatoi in his voice in audio cassette, mainly on the ground that he was giving evasive replies to the questions put to him in cross-examination. The request, which was made by the learned counsel on 29-3-2006 after cross-examining the witness for eight days i,e, on 15-2-2006, 20-2-2006, 22-2- 2006, 16-3-2006, 17-3-2006, 24-3-2006, 27-3-2006 and 28-3-2006, was rejected by the trial Court on 1-4-2006 on the ground that evidence was being recorded properly according to the law and there was 'no cogent reasons or lawful necessity' for recording evidence in witness's voice in audio- cassette. 2. Learned counsel for the petitioner, at the very outset, stated that the petitioner had full confidence in the integrity, efficiency and impartiality of the Judge presiding the trial Court. Nevertheless, he contended that there was no prohibition in law to record evidence in audio or video cassettes, which, according to him, would being more accuracy. He further argued that in past also some special Courts had done so in some 'high profile cases'. He cited the cases of Mian Muhammad Nawaz Sharif and Daniel Pearl in which the Anti-Terrorism Courts had recorded evidence in audio cassettes. 3. The learned A.D.P.G.A. Vehemently opposed the petition on the grounds that in law there was no provision for recording evidence in audio tapes: that petitioner's case was not a high-profile case: that the request was made when only a part of cross-examination of prosecution's last witness
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remained to be recorded: and that there was no valid reasons or justification for the suggested innovation of procedure, particularly when the petitioner had full faith in the efficiency and impartiality of the learned Judge of the trial Court. 4. As:regards the precedents of recording evidence in audio-tapes by Anti-Terrorism Courts in the two cases referred to by the learned counsel for the petitioner, it may be mentioned that they do not have any binding or even persuasive force under any law. Moreover, equality before law is one of the cardinal principles of jurisprudence recognized by all civilized societies. It is enshrined in Article 25(1) of our Constitution. All, high or low, are equal before law. Justice must be evenhanded. It should not be selective even in the matters of procedure. ' It will not be desirable to adopt different procedures in the trial of cases simply on the basis of high or low status of the parties. Judges should not be respecters of persons. Perhaps, it is for this reasons that Themis is portrayed as blind. Even a law prescribing different procedures for the trial of cases according to the status of the parties might not stand the test of reasonable classification. Any attempt for giving special treatment to a case on the basis of high status of a party may have the effect of undermining common man's confidence in the independence, impartiality and fairness of judiciary. 5. The procedure prescribed under Chapter XXV of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code), providing for recording evidence in writing only, is quite comprehensive. It is in vogue and has successfully catered for administering justice for the last more than a century without any serious complaint, criticism or demand for change from any quarter. Indeed, it has stood the test of time. Nevertheless, there might be a desire for recording Court proceedings in audio or video-tapes or such like other devices, but mere desire, howsoever strong it may be, without sufficient urgency and utility, may not be sufficient for judicial innovation. For the present there seems to be no urgency and there will be no utility of adopting such procedure in the present case. However, the proposal might be considered at some appropriate time. But before taking any decision in that regard the issue will have to be examined thoroughly from different angles including its utility and feasibility. One of the important legal requirements for recording evidence, as contained in Articles 131 and 133 of Qanun-e-Shahadat, 1984, is to exclude irrelevant and inadmissible evidence from being recorded. While recording evidence in audio or video cassettes, all evidence, relevant as well as irrelevant, admissible as well as inadmissible, will stand recorded as soon as it comes out from the mouth of the witness. Some modalities will have to be worked out for excluding such irrelevant and inadmissible evidence: for authentication of recorded cassettes: as well as for preparation and certification of their copies. Availability of human and material resources will also be an important factor for consideration. Moreover, the procedure, if adopted, will have to be generally for all cases and not for one particular case. The task will be easier for the legislature. 6. As regard the contention of learned ADPGA that, in view of the petitioner's full confidence in the efficiency and impartiality of the Judge of the trial Court, there was no justification for recording evidence in witness's voice in audio cassette, it may be mentioned that even lack of confidence would not provide a justification for doing so. A Judge need not be that much apologetic only for the purpose of showing his impartiality. 7. As regards the contention of witness's giving evasive replies, it may be mentioned that adequate provision in the shape of section 363 of the Code was already there for recording remarks respecting demeanour of a witnesses whilst under examination. 8. In view of the above, it is clear that the trial Court in refusing to record evidence in witness's voice in audio-cassettes did not commit any illegality or irregularity so as to warrant interference by this Court in exercise of its constitutional jurisdiction. It was therefore, that the petition was dismissed by a short order passed on 14-4-2006 and these are the reasons for that.
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(Sd.) ALI SAIN DINO METLO, J ' RAHMAT HUSSAIN JAFFERI, J.---Brief facts giving rise to the present petition are that the Accountability Court No,II, Karachi is trying reference No,28 of 2002 against the petitioner that was filed by the Chairman NAB. The trial Court was examining last witness investigation officer. The prosecutor concluded examination-in-chief of the said witness. The defence counsel cross- examined the witness on various dates when on 28-3-2006 the trial Court reserved his cross- examination for want of time. On the next day viz. 29-3-2006 the petitioner moved an application for recording the evidence of investigation officer in audio-cassette on the ground that witness was giving evasive replies to the questions put to him by the defence counsel. The learned, trial Judge after hearing the parties' counsel dismissed the said application under the impugned order dated 1-4-2006. 2. The learned advocate for the petitioner has stated that the witness was giving evasive replies to his questions put to him therefore in order to maintain transparency of the proceedings, the evidence may be allowed to be recorded in audio-cassette, which will give a clear picture of the conduct of the witness before the trial Court. He has further stated that previously the evidence used to be recorded by hand but with the introduction of typewriters the evidence is being recorded through typewriters followed by scientific modern devices such like computers; that in developed countries entire evidence is not only recorded through computers but is also recorded on audio and video; that Article 164 of the Qanun-e-Shahadat, 1984 has been introduced with an aim to make the judicial process run parallel to the scientific progress and make the instruments like modern devices to record evidence, admissible in law and that the Court is required to adopt modern methods and devices available with the advancement of science to meet the requirement of time without compromising the basic principles of Cr.P.C. The learned advocate for the petitioner has shown no grievance against the trial Judge or expressed no confidence in him but stated that it will help the trial Court in seeking verification what the witness had earlier deposed. He has referred to the proceedings concluded by the Anti-Terrorism Court in the cases State v. Mian Muhammad Nawaz Sharif and State v. Ahmed Umer Shaikh [Denial Pearl's murder case] and argued that the said Court recorded the evidence of all witnesses in audio-cassettes. Conversely, the learned special Prosecutor NAB has stated that there is no provision in the law for recording the evidence in audio-cassette; that the trial Court has recorded the evidence properly in accordance with law and the petitioner has no grievance against the trial Judge in recording such evidence; that the entire evidence is complete. Only .a portion of the cross-examination is required to be recorded therefore he has requested for the dismissal of the petition. 3. I have given due consideration to the arguments gone through the material available on the record and relevant provisions of law. Chapter XXV of the Code of Criminal Procedure (hereinafter referred to as the Code) deals with the mode of taking. And recording evidence in inquires and trial of cases. This Chapter has 13 sections from sections 353 to 365.Section 353 deals with the evidence to be taken in of accused under which it is required that all the evidence is required to be taken in the presence of the accused or when his personal attendance is dispense with, in the presence of this pleader. Section 354 provides that the Magistrate or :sessions Judge should follow the manner, mentioned in the other sections to record the evidence in inquiries and trials other than summary trials. Section 355 deals with the recording of evidence in trials of certain cases by First and Second Class Magistrates. Section 356 deals with the recording of evidence in other cases. Its subsection (1) deals with the trial before the Courts of Session and inquiries under chapter XII under which the evidence of each witness is required to be taken down in writing in the language of the Court by the Magistrate or Sessions Judge, or in his presence and hearing and under his personal direction and superintendence and further required to be signed by the Magistrate or Sessions Judge.
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Subsections (2), (2-A), (3) and (4) deal with the language i,e, English or other language in which the evidence is given by a witness, memorandum of evidence when the Magistrate or the Judge himself does not take down the evidence and to take down the evidence in the hand of Magistrate or Sessions Judge and in his presence or hearing and under his personal direction and superintendence. Section 357 empowers the Provincial Government to allow any Magistrate and Sessions Judge to take down the evidence in his mother tongue. Under section 358, option is given to the Magistrate in cases under section 355 to take down the evidence of any witness in the manner provided in section 356, or, in the manner provided under section 357. Under section 359, evidence is not required to be ordinarily taken down in the form of question and answer but in the form of a narrative. However, under subsection (2) discretion has been given to Magistrate to take down nay particular question and answer. Under section 360 the evidence is required to be read over to the witness in presence of the accused, if in attendance, or of his pleader, if he appears by pleader and can if necessary be corrected. Section 361 deals with the procedure when the accused or the witness does not know the language of the Court in which the evidence is given. Section 363 empowers the Session Judge or Magistrate who had recorded the evidence of a witness to record such remarks if any as he thinks material respecting the demeanour of such witness whilst under examination. Section 364 deals with the examination of accused and how his statement is to be recorded. Section 365 deals with the record of evidence in the High Court. 4. A perusal of above provisions of law clearly shows that the Sessions Judge or Magistrate is required to take down the evidence in his own hand in the language as mentioned above. It is not incumbent upon the Judge or Magistrate to record the evidence in audio-cassette. Because of modern technology, a benefit can be taken from the said technology to preserve the evidence and proceedings of the Court in modern devices. The evidence will contain examination-in-chief, cross-examination, reexamination, if any objection of the party, if any, ruling of the Court about admissibility or otherwise of the evidence etc. Further the control of the gadget will be with the Presiding Officer, therefore, he can pause or get it paused at any time while recording the evidence that will stop recording inadmissible evidence which will then not become the part of record, hence it will not violate the provisions of Articles 131 and 133 of C Qanun-e-Shahadat, 1984. Therefore in appropriate cases in addition to take down the evidence in the manner provided in the above provisions of law the evidence can be preserved and recorded through the modern technology on different kind of devices such as audio cassettes, CDs, etc. With the help of voice, tape-recorder or computer. Even the proceedings and evidence can be recorded in video-cassette through video cameras, electronic shorthand machine, evidence tape recording devices, etc. In appropriate cases for that the decision lies with the trial Court to exercise the same keeping in view the importance of the case, person involved in it, gravity of offence, in very highly sensitive and high profile cases, etc.. This classification is not against the spirit of Article 25 of the Constitution but is permissible as in the field of criminal justice, a classification is permissible on the basis of heinousness of crime committed. Equal protection of the law appearing in Article 25 does not mean that every citizen, no matter what his condition, must be treated in the same manner. It only means that persons, similarly situated or in similar circumstances, will be treated in the same manner. Differentiation can be made on the basis of occupations or privileges or special needs of a particular locality or a particular community or age groups or different sexes. It guarantees equality and not identity of rights. The equal protection clause of Article 25 does not demand uniformity of procedure. The legislature can classify and adopt one type of procedure for one class and a different type for another class. Reference is invited to a case of F.B. Ali v. State PLD 1975 SC 506. Further the NAB Ordinance under section 17(c) also permits adoptation of any procedure to any case by dispensing with any provision of the Code. Thus a different procedure can be adopted in different cases depending upon the facts and circumstances of each case. The Hon'ble Supreme
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Court of Pakistan in the case of Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 has not found section 17(c) of NAB Ordinance against the spirit of Article 25. No doubt, there are no specific provisions, dealing with such subjects available in the Code but the law cannot be, made stand still. Code of Criminal Procedure is an ongoing statute that is required to be constantly on the move adopting itself to the fast changing society, social concepts, values and not to lag behind. Nevertheless, there is no provision in the Code prohibiting the adoption of above procedure. It is well-settled that if there is no specific prohibition to a particular procedure in the procedural law then the same is deemed to be permissible. The apparent reason behind it is that the law has to go along with the time, to meet with the requirements and needs of the society, and to effectively travel with the changing time. However, the situation under NAB Ordinance is different as section 17(c) permits Accountability Court to follow any procedure as it might deem fit in the circumstances of case and can dispense with any provision of Code. It reads as under:-- "Notwithstanding anything contained in subsection (a) or subsection (b) or any law for the time being in force, the Court may, for reasons to be recorded, dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case." ' Thus the law permits the Accountability Court to follow any procedure that will include recording of evidence in modern devices, in trial of any case, after fulfilling the conditions mentioned in section 17(c), as such the Accountability Court has such discretionary powers. Nevertheless, the discretion has to be exercised on sound judicial principles keeping in view the requirement of each individual case. 5. It is not out of place to mention here that with the introduction of shorthand, typewriter etc. To avail such facilities our neighboring country India made necessary amendments in section 356(1), (2), (3) of their Code of Criminal Procedure, 1898 in the year 1955 through Act 26 of 1955 by adding; apart from other words, the words "from his dictation in open Court" enabling the Sessions Judge and Magistrate to avail the service of stenographer for recording evidence through dictation. However, we have made no such amendments. In spite of that, the Sessions Judges and Magistrates are availing the services of stenographers and availing the facility of typewriters for recording the evidence through dictation though law permits the evidence to be recorded in hand. Thus, the Courts are adopting new techniques obtained through modern devices to go along with the time to meet with the new challenges by keeping the basic principles and intention of law makers intact. By the passage of time, these devices and techniques slowly and gradually are becoming outdated as new methods, techniques and devices are replacing them. Therefore, the Courts are required to adopt new methods, techniques and devices obtained through advancement of Science without affecting the original intention of law. By adopting these new methods, the Court will be in a better position to serve the advancement of cause of justice, to do fair play between the parties and to make the proceedings more transparent. 6. As already pointed out that the Code of Criminal Procedure is an ongoing statute that has to meet with the requirement of the society and to travel along with the time to meet with all present and future eventualities, Therefore, different yardsticks are, provided for interpretation of such statute. The principles of interpreting an ongoing statute have been set out by a leading jurist Francis Bennion in his commentaries titled "Statutory Interpretation" 2nd Edition page 617 that are as under:- "It is presumed the Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law.
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' In construing an ongoing Act, the interpreter, is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred since the Act's passing, in law, in social conditions, technology, the meaning of words and other matters that today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment is expected to anticipate temporal developments. The drafter will foresee the future and allow for it in the wording. ' An enactment of former days is thus to be read today, in the light of dynamic processing over the years, with such modification for the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation year in and year out. It also comprises processing by executive officials." 7. The Supreme Court of India while, dealing with the ongoing statute in the case of National Textile Workers Union v. P.R. Ramakrishnan (1983) 1 SCC 228 at page 255 observed as under:- "We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the free fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bank and grow a new living bark for itself. Similarly, if the law fails to respond to the need of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind." 8. While applying the principle of updating construction as enunciated by Francis Bennion the Supreme Court of India in number of decisions approved the same. In the case of State v. S.J. Choudhary [(1996) W SCC 428], it was observed that the Evidence Act was an ongoing Act and the word 'handwriting' in Section 45 of that Act was construed to include 'typewriting'. In the case of SIL Import USA v. Exim Aides Silk Exporters [(1999) 4 SCC 567] it was held that 'notice in writing' in Section 138 of Negotiable Instruments Act were construed to include a notice by fax. Applying the same principle the Supreme Court of India had interpreted, over a period of time, various terms and phrases, to take only a few examples i,e, "stage carriage" has been interpreted to include "electric tramcar"; "steam tricycle" to include "Locomotive"; "telegraph" to include "telephone"; "bankers books" to include "microfilm"; "to take note" to include "use of tape recorder"; "documents" to include "computer database's". Reference in invited to State of Maharashtra v. Praful B. Desai (AIR 2003 SC 2053). 9. The above principles have also been applied by the Supreme Court of India while considering a provision of Criminal Procedure Code, in the case of Basavaraj R. Patil v. State of Karnataka (2000) 8 SCC 740. The question was whether an accused needs to be physically present in Court to answer the question put to him by Court whilst recording his statement under section 313 (section 342 of our Cr.P.C.). To be emphasized that under section 313 the words are "for the purpose of enabling the accused personally to explain" (Emphasis supplied).. The term "personally" if given a strict and restrictive interpretation would mean that the accused had to be physically present in Court. In fact the minority judgment in this case so holds. It has however, been held by the majority that the section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in facilities for legal aid in the country. It was held, by the majority, that it was not necessary that in all cases the accused must answer by personally remaining present in Court.
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10. It is not out of place to mention here that the proceedings of the cases, through video conferences are being conducted in the developed countries such as USA, UK, Canada etc. And our neighbouring country India where virtually the Code of 'Criminal. Procedure is same as that of our Code Criminal Procedure. Videoconferencing is an interactive tool that incorporates audio, video computing and communication technology to allow people in different locations to electronically collaborate face to face, in real time, share and communicate all types of information including data, document, sound and picture. Videoconferencing works much like instant messaging, online chatting and conversation. In this process we are simply adding digital video to the connection in order to see the person/persons on the other end. Videoconferencing now allows three or more sites to connect at…
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