2022 M L D 523
[Islamabad]
TAHIR ZAHOOR AHMAD Versus The STATE
Criminal Revisions Nos.68 and 69 of 2021
فردِ جرم عائد کرنے سے پہلے ملزمان کو بیانات اور دستاویزات کی فراہمی اور سی سی ٹی وی فوٹیج کی فراہمی کی درخواستیں خارج کر دی گئیں۔۔۔۔صحت--- بلاشبہ درخواست گزاروں کو ضابطہ فوجداری کی دفعہ 161 کے تحت ریکارڈ کیے گئے بیانات کی نقول علیحدہ سے فراہم کر دی گئی تھیں، تاہم انہیں ان افراد کے بیانات درکار تھے جو استغاثہ کے گواہان کا حصہ نہیں تھے لیکن ان کے بیانات پولیس ڈائری میں 'دریافت' کے طور پر ریکارڈ کیے گئے تھے۔۔۔۔ ملزم کو تمام تر الزامی اور تنزیہی ثبوتوں تک رسائی کا حق تھا اور اگرچہ کوئی شخص گواہ نہ بھی ہو، لیکن ضابطہ فوجداری کی دفعہ 161 کے تحت پولیس کے سامنے ریکارڈ کیے گئے اس کے بیان سے استغاثہ کے کیس پر اثر پڑ سکتا ہے اور/یا دفاع کی جانب سے دورانِ شہادت قانون کے تحت جائز طور پر ان کو استعمال کیا جا سکتا ہے۔۔۔۔جہاں تک سی سی ٹی وی فوٹیج کی فراہمی کا تعلق ہے، استغاثہ پہلے ہی زمینی میں ریکارڈ شدہ سی سی ٹی وی فوٹیج کا ٹرانسکرپٹ فراہم کرنے پر رضامندی ظاہر کر چکا ہے۔۔۔۔ بلاشبہ آئین پاکستان کے آرٹیکل 10-A کے تحت منصفانہ trial کا حق پاکستان کے ہر شہری کا بنیادی حق ہے۔۔۔۔ ریکارڈنگ کی نقل ضابطہ فوجداری کی دفعہ 265-C میں مذکور دستاویزات کے زمرے میں نہیں آتی اور اگر فرض کر لیا جائے کہ یہ آتی بھی ہے، تو بھی اس کی فراہمی کو مفاد عامہ کی خاطر روکا جا سکتا ہے۔ سی سی ٹی وی فوٹیج میں کچھ تصاویر کے مندرجات کے حوالے سے بات تھی، جس ک مبینہ طور پر مقتول کے قتل کا سبب بنی--- ملزمان کو سی سی ٹی وی فوٹیج کی ریکارڈنگ فراہم کرنے سے یہ خطرہ لاحق ہو سکتا ہے کہ ویڈیو ریکارڈنگ کو عام کر دیا جائے اور/یا اس سے مقدمے پر اثر پڑ سکتا ہے--- نقول میں چھیڑ چھاڑ کو بھی رد نہیں کیا جا سکتا، جس سے مقدمے کے دوران پیچیدگیاں پیدا ہو سکتی ہیں--- لہذا، یہ مناسب ہوگا کہ سی سی ٹی وی فوٹیج کی نقل ملزمان کو فراہم کی جائے تاکہ انصاف کے تقاضے پورے ہوں اور انصاف کا محفوظ انتظام ہو سکے--- ایک بار جب مذکورہ دستاویز/ثبوت کو ثبوت میں پیش کیا گیا، تو درخواست گزاروں اور دیگر شریک ملزمان کو استغاثہ کے گواہوں پر جرح کرنے کا موقع ملے گا، اگر وہ چاہیں تو اس ثبوت پر اور ان سوالوں کے جواب دینے کا بھی جو ان سے دفعہ 342، ضابطہ فوجداری کے تحت پوچھے جائیں گے--- بہر صورت، دفاع کے پاس سی سی ٹی وی فوٹیج کے مندرجات کا ٹرانسکرپٹ موجود ہوگا، لہذا اس مرحلے پر مذکورہ ریکارڈنگ فراہم نہ کرنے سے ملزمان کو کوئی تعصب نہیں ہوگا۔
Applications for the supply of statements and documents to the accused before framing of charge and for supply of CCTV footage were dismissed---Validity---Admittedly, the petitioners had been provided copies of the statements recorded under S.161, Cr.P.C. separately, however, they required the statements of the persons, who were not part of prosecution witnesses but their statements were recorded by way of 'daryaft' in police diaries---Accused was entitled to have access to all inculpatory and exculpatory evidence and even though a person might not be a witness, but his statement recorded before the police under S.161, Cr.P.C, might have an impact on prosecution's case and/or they might be utilized by the defence during the course of evidence as permissible under the law---In so far as supply of CCTV footage was concerned, the prosecution had already shown willingness to provide the transcript of CCTV footage as recorded in Zimni---Undoubtedly, under Art. 10-A of the Constitution of Pakistan, right of fair trial was a fundamental right of every citizen of Pakistan---Copy of the recording did not fall within the purview of documents mentioned in S.265-C, Cr.P.C and assuming even if it did, the supply of same could be withheld on account of public interest---CCTV footage was regarding contents of some of the images, which allegedly led to killing of deceased---Provision of recording of the CCTV footage to the accused persons would run a high risk that the video recording might be made public and/or prejudice the trial---Tampering of the copies could also not be ruled out, which might lead to complications in the course of trial---Thus, it would be appropriate that copy of CCTV footage be provided to the accused persons to meet the ends of justice and for safe administration of justice---Once the said document/evidence was exhibited in evidence, the petitioners and other co-accused then had the advantage of cross-examining the prosecution witnesses, if they so desired on the said piece of evidence and also to answer the questions put to them under S.342, Cr.P.C.---In any case, the defence would have the transcript of the contents of the CCTV footage, hence no prejudice would be caused to the accused by non-supply of the said recording at that stage---
JUDGMENT
This judgment shall decide instant Criminal Revision as well as Crl. Rev. No.69-2021, as they arise out of criminal trial in case FIR No.380 dated 20.07.2021 under sections 302/376/176/109/364/368/201/511/118, P.P.C. registered at Police Station Kohsar, Islamabad.
2. The petitioners are facing trial in the above mentioned case and were indicted on 14.10.2021; they moved applications under sections 265-C and 265-D, Cr.P.C. as well as application for supply of CCTV footage allegedly containing video recording of the place of occurrence and being part of prosecution evidence. The referred applications were dismissed by learned trial court vide orders dated 06.10.2021 and 07.10.2021, hence the petitions.
3. Learned counsel for the petitioner in Crl. Rev. No.68-2021 inter alia contended that copies of the statements provided under section 265-C, Cr.P.C. by the learned trial court are not comprehensive. In this behalf, it was submitted that statements recorded separately under section 161, Cr.P.C. have been provided but ones, recorded by the police during investigation by way of 'daryaft', have not been given to the defence/accused, which they are entitled to, under the relevant law. In this behalf, reliance was placed on case law reported as 'Sharafat v. The Crown' (PLD 1953 Dacca 10) being the seminal judgment on the issue. It was also contended that Larger Bench of Hon'ble Lahore High Court settled the law on the subject by stating that statements, recorded during investigation as 'daryaft' and not separately, are also categorized as one recorded under section 161, Cr.P.C. Reliance was placed on cases reported as 'Muhammad Aslam v. The State' (PLD 1995 Lahore 632), 'Nazar Muhammad v. Mushtaq Ahmad and others' (PLD 1996 Lahore 277) and 'Nazar Muhammad v. Mushtaq Ahmad and others' (PLD 1996 Lahore 277). It was contended that provisions under sections 265-C to 265-E, Cr.P.C are mandatory and non-compliance thereof, vitiates the trial. Reliance was placed on cases reported as 'Ajeet Singh v. The State' [PLD 1981 Cr.C. (Lahore)] 342 and 'Nasrullah v. The State' [1980 PCr.LJ 5]. It was contended that defence is also entitled to the copy of CCTV footage in light of judgment of Hon'ble Sindh High Court reported as 'Sikandar Ali Lashari v. The State' (2016 YLR 62).
4. Learned counsel for the petitioner in Crl. Rev. No.69-2021 inter alia contended that he adopts the arguments by learned counsel for the petitioner in Crl. Rev. No.68-2021 but added that CCTV footage is to be provided at this stage as requirement for fair trial under Article 10-A of the Constitution. Reliance was placed on cases reported as 'Sikandar Ali Lashari v. The State and another' (2016 YLR 62) as well as 'Muhammad Safdar v. Presiding Officer Accountability Court No.IV, Karachi and 4 others' (2020 PCr.LJ 683). It was also contended that learned trial court ought not have framed the charge under section 265D, Cr.P.C. inasmuch as sufficient time had not been provided to examine the statements of the prosecution witnesses and other documents provided and prepare the defence.
5. Learned counsel for the complainant along with learned State Counsel inter alia contended that some of the statements, that are being asked by the petitioners, are not part of challan but shall form part of supplementary challan, however, willingness was expressed to provide all the relevant statements recorded under section 161 Cr.P.C. including Zimni No.2 dated 21.07.2021 containing transcript of recording of CCTV footage as well as supplementary statement of complainant Shaukat Ali Muqaddam recorded on 8.8.2021 in Zimni No.18 as well as statement of Muhammad Jabir, Head Constable recorded on 14.10.2021.
6. Arguments advanced by learned counsel for the parties have been heard and the documents, placed on record, examined with their able assistance.
7. As noted above, the petitioners are aggrieved of dismissal of their applications under sections 265C & 265D Cr.P.C. as well as supply of copies of CCTV footage in the criminal trial faced by them in the afore-noted case.
8. The controversy in hand boils down to interpretation of Sections 265C and 265D, Cr.P.C., as petitioners are claiming copies of statements recorded under section 161, Cr.P.C. For ease of convenience, the relevant provisions are reproduced below:-
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 reports;
(b) the police report;
(c) the statements of all witnesses recorded under Sections 161 and 164; and
(d) the inspection note recorded by an investigation 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.
(2) in all cases instituted upon a complaint in writing-
(a) the complainant shall-
(i) state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of the evidence which he is likely to adduce at the trial; and
(ii) within three days of the order of the Court under Section 204 for issue of process to the accused, file, in the Court for supply to the accused as many copies of the complaint and any other document -which he has filed with his complaint as the number of the accused and
(b) copies of the complaint, and any other documents which the complainant has filed therewith and the statement under Section 200 or Section 202 shall be supplied free of cost to the accused not later than seven days before the commencement of the trial.
265-D When charge to be framed: If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused.
The bare perusal of section 265C ibid shows that at least seven days, before framing of charge, free of cost, four types of documents are to be provided to the accused namely; First Information Report; police report; statement of all witnesses recorded under sections 161 and 164, Cr.P.C. and inspection note recorded by the Investigation Officer on his first visit to the place of occurrence and note recorded by him on recoveries made, if any. The said section is subject to proviso which entitles the court not to provide any statement recorded under sections 161, Cr.P.C. or 164, Cr.P.C., if disclosure of the same to the accused, would be inexpedient to the public interest.
9. Admittedly, the petitioners have been provided copies of the statements recorded under section 161, Cr.P.C. separately, however, they require the statements of the persons, who are not part of prosecution witnesses but their statements were recorded by way of 'daryaft' in police diaries.
10. In order to appreciate the controversy better, sections 161 and 172, Cr.P.C. are relevant hence are reproduced below:-
"161. Examination of witnesses by police: (1) Any police-officer making an investigation under this Chapter or any police-officer not below such rank as the Provincial Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer all-questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section, and if he does so he shall make a separate record of the statement of each such person whose statement he records
Provided that a statement of a woman an offence under section 336B, section 354, section 354A, section 376 or section 509 of the Pakistan Penal Code, 1860 (Act of XLV of 1860) is alleged to have been committed or attempted, shall be recorded by an investigating officer in presence of a female police officer or a female family member or other person of her choice.
172. Diary of proceedings in investigation: (1) Every police-officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in-a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places Visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police-diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shaft he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police-officer who made them, to refresh his memory, or if the Court uses them for the purpose of contradicting such police-officer, the provisions of the Evidence Act, 1872, Section 161 or Section 145, as the case may be, shall apply".
The examination of referred provisions shows that during investigation, the police officer, making the investigation, can examine a person and ask questions to any potential witness or a person concerned and the reply rendered, may be reduced into writing by way of statement and separate record of the same has to be maintained. Under section 162, Cr.P.C., such statements are not required to be signed. Under section 172, Cr.P.C., the police officer, making the investigation, shall maintain diaries, wherein he shall record day-to-day progress in the investigation and would include time of beginning, conclusion and/or places he visited or statements recorded. Under subsection (2) of section 172 ibid, police diaries are not part of evidence in any case but the court may examine the same. The accused or his agents are not entitled to examine or see the police diaries.
10. In light of above provisions, it is worthwhile to examine the case law cited at bar by learned counsel for the parties. It is the stance of respondents that police diaries are 'privileged' hence cannot be examined nor copies thereof can be provided to the accused. Such principle and/or stance by the respondents is without exception, however there is plethora of case law relied upon by learned counsel for the petitioners that statements, recorded by the police by way of daryaft of the persons not even included as witnesses for the prosecution, may also be provided to the accused, as they fall within the category of statements under section 161, Cr.P.C.
11. In case reported as 'Sharafat v. The Crown' (PLD 1953 Dacca 10), it was observed that statements, not taken down separately, but only by way of gist and the copies thereof not provided to the defence, would vitiate the trial and re-trial was ordered with direction that accused shall be furnished with copies of the boiled statements as recorded by the Investigating Officer in order that the accused may see, whether or not, he can make use of them in cross-examination.
12. The matter was considered by the Hon'ble Lahore High Court in case reported as 'Muhammad Aslam v. The State' (PLD 1995 Lahore 632) and it was held that statement of accused recorded in the police diaries containing a detailed narrative of events touching the case are categorized as statements under section 161, Cr.P.C. and the same ought to have been supplied to the accused under section 265C, Cr.P.C. Same view was adopted in case reported as 'Nazar Muhammad v. Mushtaq Ahmad and others' (PLD 1996 Lahore 277), wherein it was observed that the accused is not only entitled to the statements of witnesses to be produced by the prosecution but also the statements of all witnesses recorded; the emphasis being on the word 'all'. The rational for such a view is pretty obvious inasmuch as the accused is the favourite child of the court and is entitled to all inculpatory and exculpatory evidence against him. Moreover, now after insertion of Article 10-A in the Constitution of Islamic Republic of Pakistan, failure to provide to the accused all the statements would negate his right of fair trial.
13. In case reported as 'Muhammad Riaz and another v. The State' (PLD 2003 Lahore 290), Larger Bench of Hon'ble Lahore High Court, examined the question of 'privilege' attached to police diaries under section 172, Cr.P.C. in juxtaposition of section 161 ibid and it was held that section 161, Cr.P.C. is independent of section 172, Cr.P.C., and the latter as an independent section, relates to maintenance of case diaries as record of various stages through which the investigation passes. It was added that it is only the case diaries which are meant to be treated as 'privileged' and not be made in access of the accused, however, statements recorded under section 161, Cr.PC., are not 'privileged', even if, recorded in the body of case diaries.
14. Likewise, it has been held consistently that the requirements to comply with section 265C, Cr.P.C. are mandatory. Reliance is placed on case reported as 'Ajeet Singh v. The State' [PLD 1981 Cr.C. (Lahore)] 342.
15. In view of above discussion of law and facts, the petitioners are entitled to the statements of all witnesses recorded under section 161 Cr.P.C., either recorded separately, or in the body of case diaries and whether or not, those witnesses/persons have been included in the challan/report under section 173 Cr.P.C. as prosecution witnesses.
16. The rationale of above provision has already been observed hereinabove, as accused is entitled to have access to all inculpatory and exculpatory evidence and even though a person may not be a witness, but his statement recorded before the police under section 161, Cr.P.C., may have an impact on prosecution's case and/or they may be utilized by the defence during the course of evidence as permissible under the law.
17. In so far as supply of CCTV footage is concerned, the prosecution has already shown willingness to provide the transcript of CCTV footage as recorded in Zimni No.2 dated 21.07.2021. Petitioners, however, relied on judgments of Hon'ble Sindh High Court reported as 'Sikandar Ali Lashari v. The State and another' (2016 YLR 62) and 'Muhammad Safdar v. Presiding Officer Accountability Court No.IV, Karachi and 4 others' (2020 PCr.LJ 683) to argue that copies of USB, containing the recording of CCTV footage, are to be provided at the stage of supply of statements under section 161, Cr.P.C. Undoubtedly, under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, right of fair trial is a fundamental right of every citizen of Islamic Republic of Pakistan, however, I am unable to agree with the reasoning advanced in the judgments cited at bar for providing said piece of evidence at this stage of trial. The copy of the recording does not fall within the purview of documents mentioned Section 265C ibid and assuming even if it does the supply of some can be withheld on account of public interest. In this behalf, it is observed that it seems that CCTV footage is regarding contents of some of the images, which allegedly led to killing of deceased Noor Muqaddam. At this juncture, to provide recording of the CCTV footage to the accused persons, runs a high risk, that video recording might be made public and/or prejudice the trial; moreover, tampering of the copies also cannot be ruled out, which may lead to complications in the course of trial. It would be appropriate that copy of CCTV footage be provided to the accused persons to meet the ends of justice and for safe administration of justice, once the said document/evidence is exhibited in evidence; the petitioners and other co-accused then have the advantage of cross-examining the prosecution witnesses, if they so desire on the said piece of evidence and also to answer the questions put to them under section 342, Cr.P.C. In any case, the defence shall have the transcript of the contents of the CCTV footage, hence no prejudice shall be caused to the accused by non-supply of the said recording at this stage.
18. In view of foregoing, above mentioned Criminal Revisions are allowed to the extent that request of petitioners to provide statements under section 161 Cr.P.C. either recorded separately or by way of 'daryaft', are allowed and order dated 07.10.2021 is set aside to the said extent. The learned trial court shall provide copies after recording of the same in the order sheet. However, the request to the extent of supply of CCTV footage is turned down and the impugned order is maintained. Likewise, objection to framing of charge is also turned down as ample opportunity was provided to the accused to examine the statements and documents before framing of charges.
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