IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Rev.
Application No. 55 of 2016
______________________________________________________
Date Order with Signature of
Judge
___________________________________________________________
Before : Mr. Justice Fahim Ahmed Siddiqui
Muhammad
Farooq
...
..Applicant
Versus
Sana
Rizwan & others
Respondents
Date
of Hearing : 19.10.2017
Applicant Muhammad Farooq through Mr. Mirza
Sarfaraz Ahmed, advocate alongwith Ms. Saeeda Siddiqui, advocate.
Respondent No.1 and 2 namely Sana Rizwan and
Iqbal Mirza Nazar through Mr. Aamir
Mansoorb Qureshi, advocate.
The State through Mr. Muntazir Mehdi, the
Assistant Prosecutor General, Sindh.
O R D E R
FAHIM
AHMED SIDDIQUI, J: By invoking the revisional jurisdiction under Sections 435,
439 read with Section 561-A of the Code of Criminal Procedure (hereinafter referred
as CrPC), the Applicant has assailed the order dated 30.03.2016, passed by the learned
V Additional Sessions Judge Karachi South, on an application under Section 94
of CrPC filed in Sessions Case No. 1393 of 2015, FIR No. 311 of 2015, under
Sections 420/471/468/34 PPC registered at Police Station Darakhshan, Karachi,
whereby the said application was dismissed.
2.
The case of the
Applicant that he has filed an application under Section 94 of CrPC in Sessions
Case No. 1393 of 2015, wherein he has sought direction from the learned trial
Court to the accused persons to produce original Sale Agreement dated
18.07.2003 before the trial Court for the purpose of investigation and
verification, as according to the Applicant, the signature of the Applicant on
the said sale agreement, has been forged/manipulated by the accused and
according to the Applicant, the production of the said Sale Agreement before
the trial Court was very material for just investigation of the offence,
committed by the accused persons. The Applicant submitted that the said Sale
Agreement was produced by the accused persons in Suit No. 10 of 2004, which was
pending before this Court, as Ex. P-5/10 during his evidence and obtained the
original from the learned Commissioner, appointed by the Court for recording
his evidence. In the end, the Applicant submitted that the said Suit No. 10 of
2004 was dismissed by this Court vide judgment and decree dated 20.03.2015.
3.
In the instant case, the
question involved is that whether an accused can be compelled to produce any
document or material in his possession under the provision of section 94 of
CrPC? before entering into further discussion, I would like to reproduce the
relevant portion of sections 94 and 96 of CrPC, which read as follows:
94.
summons to produce document or other thing: (1) whenever any court, or, any officer
incharge of a police-station considers that the production of any document or
other thing is necessary or desirable for the purposes of ,any investigation,
inquiry, trial or other proceeding under this code by or before such court or
officer, such court may issue a summons, or such officer a written order, to
the person in whose possession or power such document or thing is believed to
be, requiring him to attend and produce it or to produce it, at the time and
place stated in the summons or order:
provided that no such officer shall issue
any such order requiring the production of any document or other thing which is
in the custody of a bank or banker as defined in the banker's books evidence
act, 1891 (xvii of 1891), and relates, or might disclose any information which
relates to the bank account of any person except--
(a) for the purpose of investigating an
offence under sections 403, 406, 408 and 409 and. sections 421 to 424 (both
inclusive) and sections 465 to 477-a (both inclusive) of the Pakistan Penal Code,
with prior permission in writing of a sessions judge ; and
(b) in other cases, with the prior
permission in writing of the high court.
(2) any person required under this section
merely to produce a document or other thing shall be deemed to have complied
with the requisition if he causes such document or thing to be produced instead
of attending personally to produce the same.
(3) nothing in this section shall be deemed
to affect the evidence act, 1872, sections 123 and 124, or to apply to a
letter, postcard, telegram or other document or any parcel or thing in the
custody of the postal or telegraph authorities
96.
when search warrant may be issued: (1) where any court has reason to believe
that a person to whom a summons or order under section 94 or a requisition
under section 95, sub-section (1), has been or might be addressed, will not or
would not produce the document or thing as required by such summons or requisition,
or where such document or thing is not
known to the court to be in the possession of any person,
or where the court considers that the
purposes of any inquiry, trial or other proceedings under this code will be
served by a general search or inspection,
it may issue a search-warrant; and the
person to whom such warrant is directed, may search or inspect in accordance
therewith and the provision hereinafter contained,
4.
Regarding
the issue under discussion, article 13 of the Constitution of Pakistan is also
important, which reads as:
13. No person
(a) shall
be prosecuted or punished for the same offence more than once, or
(b) shall,
when accused of an offence, be compelled to be a witness against himself.
5.
Before construing
Section 94 CrPC, it is necessary to recall the back- ground of Article 13 (b)
of the Constitution. One of the fundamental canons of the Criminal
Jurisprudence is that the accused should not be compelled to incriminate
himself. This principle is enshrined in the Islamic jurisprudence and the same
was later on adopted by English legislature and jurists. In sharia, an accused
cannot be compelled to give a confession, and has the right to remain silent. A
coerced confession or confession taken under force is not admissible. The strict requirements for acceptance of
confessions in Islam stem from the concept that there is a higher justice than
the justice in the courts. If the
accused is truly guilty, but his guilt may not be fairly proven in court, he
will still have to answer to God. The hidden truth is considered to be a matter
between the individual and his Creator. The same principle was later on adopted
in English jurisprudence. This principle in English jurisprudence is resulted
from a feeling of revulsion against the inquisitorial methods adopted and the
barbarous sentence, imposed, by the Court of Star Chamber, which became
notorious for judgment favoring the king. In 1641, the parliament inflamed by
the severe treatment of John
Lilburne, as well as other religious
dissenters passed an Act and abolished the Court of Star Chamber. As such, an
era of firm recognition of the principle that the accused should not be put on
oath and that no evidence should be taken from him. This principle, in course
of time, developed into its logical extensions, by way of privilege of
witnesses against self-incrimination, when called for giving oral testimony or
for production of documents.
6.
Now it is settled that
it is not only under the principle of jurisprudence but also the Constitution
has provided a protection to an accused that he should not be compelled to
become witness against himself. No doubt, Section 94 CrPC empowered a criminal
Court to compel production of any document or other things in possession of any
person and for the same purpose a warrant can be issued under Section 96 CrPC.
However, in view of the settled principle of jurisprudence and under the
provision of Article 13 (b) of the Constitution of Pakistan, such directions
cannot be issued to an accused against whom an enquiry or investigation is
being carried out and/or trial is being held.
7.
As
mentioned above, the principle of protection against self-incrimination became established in English law and later on
it was borrowed by other systems of law but it has also opened debate as to the
utility of this system and serious doubts were held in some quarters that this
principle has a tendency to defeat justice. However, it is a fact that the principle
of the protection of accused against self-incrimination urges the prosecution to improve investigation
and the investigators have to dig out the truth and proof by proper and
detailed analysis of external sources and material in respect of an alleged or
suspected crime instead of extortion of confessions from the suspected person
or accused. No doubt, the principle of
protection of self-incrimination is necessary to protect the innocent
individual but it equally demands an active and effective investigation on
unverified suspicion and if a criminal trial fails the poor and defective
investigation and prosecution is responsible for the acquittal of a culprit.
8.
From the above
discussion, it is obvious that under Section 94 of CrPC, a discovery of
documents or thing cannot be ordered against an accused as it is not only
against the settled principle of jurisprudence but it is contrary to the
Article 13 (b) of the Constitution of Pakistan. Regarding the principle of
protection of self-incrimination, a division bench of this Court in the case
reported as Muhammad Yousuf v. The State (P L D 1988 Kar 539) while
considering the provision of section 340(2), CrPC in juxtaposition with Article
13 (b) of the Constitution, held, that if an accused person makes statement on
oath under Section 340(2), CrPC he will be subjected to cross‑examination
by the prosecutor and in the cross‑examination, he is bound to ask him
questions, which can incriminate him in the commission of the offence which
will amount 'to compelling him to be a witness against himself which is
prohibited under Article 13 (b) of the Constitution. From the observation of Muhammad
Yousuf (supra) case, I comprehend that the accused person cannot be
compelled to be a witness against himself even if he has volunteered to be
examined on oath under Section 340(2) CrPC.
9.
In view of the above
legal and factual position, I am of the considered view that the learned trial
Court has rightly dismissed the application filed by the applicant under
Section 94 CrPC, as an accused cannot be compelled to produce any document or
thing, which may go against him. Resultantly,
the instant criminal revision is dismissed.
10.
The above are the
reasons for my short order dated 19th October, 2017.
JUDGE