1989 PLP 3877 (MLD)

Rehanul Hassan for the Plaintiffs. M.M.K.A. Zia for Defendants Nos. 1 to

3. S.A. Samad fot Defendant No.

4. Date of hearing: ?2nd February, 1989. In this suit evidence of Hamid Hussain a witness for the- plaintiff was recorded by Mr. Ishaq Ahmed, an Advocate appointed as Commissioner for said purpose. Manner in which evidence of said witness was recorded by the Commissioner, has been challenged by the defendant No. 4 in his application (C.MA. No. 184/1983) on the grounds. (1) that the statement was recorded on Friday, (ii) that the Commissioner who sided with the prosecution, limited the scope of cross-examination and disallowed some important questions which were meant to show dishonesty of the witness, (iii) that the Commissioner as well as the plaintiffs counsel interfered with cross-examination of the witness by Advocate for defendant No.4, (iv) that the witness was guided and instructed by the Commissioner and the plaintiff's counsel, to answer the questions in cross-examination in a particular way. On the basis of said grounds the defendant No. 4 desired the evidence of Hamid Hussain to be ignored from consideration.

2. Under another application (CMA No. 1071/1988) the defendant No. 4 wanted copy of Urdu version of statement of PW Hamid Hussain prepared from an audio cassette which tape-recorded his evidence given on 19-4-1982, to be kept on record and perused while deciding C.M.A. No. 184/83.

3. Both the applications (C.M.A. No.184/83 and CMA No. 1070/88) were opposed by the plaintiff who filed counter-affidavits. Both the applications are proposed to be decided under this order.

4. I have heard Mr. SA. Samad, Advocate for defendants No.4, Mr. M.M.K.A. Zia, Advocate for the defendants 1 to 3 and Mr. Rehanul Hassan, Advocate for the plaintiff.`

5. Learned counsel for the defendant No. 4 argued that in this age of scientific development approach of the Courts should be progressive and that use be made of modern techniques. Learned counsel for defendant No.4 referred to paragraph 225 (page 158) of Halsbury's Laws of England (Fourth Edition) Volume 17 where it is mentioned that records and tape recordings are admissible in evidence provided the accuracy of the recording is proved and the sounds recorded are identified. In this para some authorities have been cited for the proposition that a tape recording was document and that under the Civil Evidence Act, 1968 Part-1 (Section 1-10) "document" indicates any disc, tape, sound track or other device m which sounds or other data are embodied so as to be capable of being reproduced from it. Learned counsel for the defendant No. 4 cited the case of Grant v. South Western Properties reported in (1974) 2 All England Law Reports 465 where it was observed that tape recording was a document if what was recorded was information or evidence and a tape recording of a conversation could properly be described as documentary evidence of the conversation: Learned counsel for the defendant No. 4 next cited case of R v. Robson reported in (1972) 2 All England Law Reports 699, where the prosecution sought to put in evidence certain tape recordings against an accused charged inter aha with corruption. The defence contended that the tape recordings were not admissible because (i) it had not been shown that they were the originals or were true copies of the originals and (ii) they were misleading and should not be relied on because, they were in many places unintelligible and of poor quality and their potentially prejudicial effect would outweigh the evidential value claimed for them. The Court held that the tape recordings were admissible. Reliance was also placed on the case of R. v. Maqsood Ali reported in (1965) 2 All England Law Reports 464, where it was observed that a tape-recording is admissible in evidence provided the accuracy of the recording can be proved and the voices recorded can be properly identified, the evidence is relevant and otherwise admissible. It was cautioned that such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.

6. Aforesaid authorities are from the English jurisdiction where the law of evidence is fundamentally different from the law of evidence practiced in Pakistan. Learned Counsel for defendant No. 4 also cited the case of Partab Singh v. State of Punjab (A.I.R. 1964 S.C. 72) where majority view taken was that if in any particular case there is a well grounded suspicion not even say proof, that a tape-recording has been tampered with, that would be a good ground for the Court to discount wholly its evidentiary value. At the same time it was observed that the evidence afforded by the tape-recorded talk had to be considered in appreciating the genuineness of the talk recorded and in deciding whether the allegations made were substantiated or not. Reliance was also placed on the case of Abdul Ghani and others v. Shri V.V. Giri (AIR 1971 S C 1162) where it was observed that the tape itself is primary and direct evidence admissible as to what has been said and picked up by the recorder and that a previous statement made by a witness and recorded on tape can be used not only to corroborate the evidence given by the witness in Court, but also to contradict the evidence given before the Court, as well as, to test the veracity of the witness and also to impeach his impartiality. Reliance was next placed on the case of R.M. Malkani v. State of Maharashtra (A.I.R, 1973 S.C. 157 where it was held that a tape-recorded conversation is admissible provided the conversation is relevant to the matters in issue, and there is identification of the voice and accuracy of the conversation is established by elimination of the possibility of the tape-record having been erased. Learned Counsel for the defendants Nos. 1 to 3 also wanted the tape -recorded statement of Hamid Hussain to be considered in the case. He referred to Article 164 of Qanun-e-Shahadat which says that Court may allow to be produced any evidence that may have become available because of modern devices and techniques, in such cases as the Court may consider appropriate.

7. Learned counsel for the plaintiff opposed both the applications and argued that as per report of the Commissioner no permission was sought for tape-recording statement of Hamid Hussain while his evidence was being recorded and that tape-recorder was used at the relevant time. Learned counsel for the plaintiff pointed out that after recording of evidence of Hamid Hussain on 9-4-1982. the counsel for the defendants had moved CMA No. 1749/82 CMA No. 184/83 and supporting affidavits and rejoinders in which there was no mention about the use of tape-recorder at the time Hamid Hussain was examined. In the circumstances it was argued that the story about use of the tape-recorder was invented after delay of four years, and hence it did not merit consideration. It was further argued that voice in a tape-recording can be managed as there were persons who can mimic or imitate voice of any body. Learned counsel for the plaintiff cited the case of Zafar Iqbal and others v. Bashir Ahmed and another (PLD 1988 S.C. 109) where an effort was made by the plaintiff to produce in evidence an audio cassette but the same was not allowed to be produced in evidence by the trial Court, on the ground that the said cassette had not been relied upon in the list of reliance filed with the suit. Such order of the trial Court was not interfered with by the High Court or by the Supreme Court of Pakistan. Plaintiff made another attempt to bring the cassette in evidence, after framing of an additional issue, by invoking the provisions contained by Article 164 of Qanun-e-Shahadat. The fresh attempt was also turned down by the trial Court, which imposed costs of Rs. 500 on the plaintiffs for moving malicious, frivolous and baseless application. Such order of the trial Court was not interfered with, by the High Court or by the Supreme Court of Pakistan. In the cited case, which was also relied upon by learned counsel for the defendants Nos. 1 to 3 the application for production in evidence of audio cassette was dismissed, on the ground of its being frivolous, baseless and mala fide and not on the ground that the cassette was inadmissible in evidence. It was not held by the Supreme Court of Pakistan, in the cited case, that an audio cassette was not admissible in evidence. Learned counsel for the plaintiff next cited unreported case of Mst. Rukhsana Begum v. District Judge East and others, where this Court in a Constitution Petition (No. S. 34 of 1987) declined to interfere with an order passed by a District Judge reversing an order passed by his subordinate Judge allowing production in evidence of a Cassette containing conversation between the parties as to tire settlement talk after start of the litigation. In the cited case the view take was that Article 164 of Qanun-e- Shahadat conferred discretion on a Court to allow the production of any evidence that may have become available because of modern devices or techniques.

8. Observations made in the case of f Mst. Rukhsana Begum read with observations made by the Supreme Court of Pakistan in the case of Zafar Iqbal leave no manner of doubt that an audio cassette is admissible in evidence as something that can become available because of modern devices and techniques. The English authorities quoted above also boil down to the proposition that a tape-recording is a document like any disc or sound track and such tape is admissible in evidence in certain cases. For example in the case of Coca Cola Co. v. William Structures & Sons Limited (PLD 1968 S.C. 214) the recordings of a cross-section of people reading a libel were held competent evidence of some, though limited assistance is an action for infringement of a trade mark. This however does not end the controversy about admissibility of the Cassette in question. In none of the cited case, evidence of a witness duly recorded by a Court or by a Commissioner was challenged, as being in conflict with tape -recording of such witness.

9. In the instant case, one party has tried to prove through a tape-recording that deposition of a witness of the adverse part' was not gibed according to the version as given and tape-recorded. As a matter of fact it is the primary duty of the trial Court to record evidence of witnesses in open Court in presence of the parties. Order 18 Rule 4 of C.P.C. says, that evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge. Rule 5 of Order 18 of C.P.C. says that evidence of each witness 5hall be taken down in writing in the language of the Court by or in the presence and under the personal direction and superintendence of the judge. The provisions do not say that evidence of the witness can be tape-recorded. There is no provision that an act of the Court in recording evidence of a witness can be challenged, on the ground of inconsistency between his evidence as recorded by the Court and the same as recorded by a tape-recorder. Under section 75 of C.P.C. the Court may issue a commission inter alia for examination of a person. In such a case the Commissioner appointed to record evidence of a witness becomes delegatee of the Court and he enjoys all the powers which a Court has for the purposes of recording that evidence. Likewise the evidence recorded by a Commission on behalf of a Court cannot be challenged on the ground that such evidence was in conflict with the oral evidence of that person as recorded by a tape-recorder. Moreover the presumption of genuineness as per Article 91 of Qanun-e-Shahadat is attached to the record of evidence given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence. Id the instant case the stony about the statement of Hamid Hussain having been tape-recorded, has been disclosed at a very late stage. As a Court of law, the Commissioner could not have given permission for use of a tape-recorder. Report of the Commissioner shows that no tape-recorder was used by any of the parties when Hamid Hussain was being examined. There is also possibility of removal of some passages from the tape -recording. In such circumstances it would not be in the interest of justice to use the tape-recorder, said to be containing the statement of Hamid Hussain. as given by him before the Commissioner, for the purpose of deciding any point arising in this case.

10. Allegations made in the application (C.MA. No. 184/83) by the defendant No. 4 are not substantiated. Even if evidence of Hamid Hussain was recorded by the Commissioner on a Friday, that would not affect the evidence so recorded. It is difficult to believe that the Commissioner interfered with cross examination of the witness, when such cross-examination was conducted by an advocate. No ground has been made out for excluding evidence of Hamid Hussain from consideration.

11. For the aforesaid reasons I dismiss both the applications. M.Y.H./N-207/K Petitions dismissed.