2020 P Cr (PLP)

Munawar Hussain and Ghulam Rasool (hereinafter referred to as the "Appellants/Convicts") were tried by the learned Judge, Anti-Terrorism Court-II, Multan, in case FIR No.149/1995 dated 11.5.1995 registered at Police Station Gaggu, District Vehari, and were convicted and sentenced as under vide judgment dated 2.9.2008: i) Convicted under sections 302(b)/149, P.P.C. by way of Ta'zir and sentenced to death on three counts for committing Qatl-i-amd of Haji Abdul Majeed, Sabir Ali and Zulfiqar with direction to pay Rs.4,00,000/- to the legal heirs of every deceased in terms of section 544-A, Cr.P.C. and in default to undergo simple imprisonment for a further period of five months on each count. ii) Convicted under sections 324/149, P.P.C. and sentenced to rigorous imprisonment for 10 years on two counts for committing an attempt to murder Bilquees Bibi and Muhammad Ibrahim with fine of Rs.1,00,000/- each and in default thereof to undergo simple imprisonment for a further period of four months on each count. iii) Convicted under sections 337-F(iii)/149, P.P.C. and sentenced to rigorous imprisonment for three years on two counts for causing hurt to Bilquees Bibi and Muhammad Ibrahim with Daman of Rs.50,000/- to be paid in lumpsum to both the injured. The Appellants/convicts were also ordered to pay Rs.50,000/- each as compensation to the injured PWs in terms of section 544-A, Cr.P.C. and in default thereof to undergo simple imprisonment for a further period of three months each. The Appellants/Convicts were, however, acquitted of the charge under section 364, P.P.C. and sections 3 and 4 of the Explosive Substances Act, 1908. Benefit of section 382-B, Cr.P.C. was extended to them and the sentences of imprisonment were ordered to run concurrently.

2. The Appellants/Convicts filed Criminal Appeal No.42-ATA/ 2008 against judgment dated 2.9.2008 while the learned trial Court submitted reference under section 374, Cr.P.C. (CSR No.03/2008) before this Court for confirmation of their death sentence. During pendency of these matters the Complainant passed away. On 28.9.2019, his son Muhammad Nawaz moved an application under section 345, Cr.P.C. bearing Criminal Misc. No.1143-M/2019 seeking permission to compound the offence on the ground that a compromise had been effected between the Appellants/Convicts and legal heirs of the deceased as well as the injured PWs and they had forgiven them in the name of Almighty Allah. This Court vide order dated 1.10.2019 requisitioned report from the learned Judge, Special Court Anti-Terrorism, Multan, with regard to genuineness of the compromise which is still awaited.

3. Muhammad Nawaz aforesaid has now moved the instant application under section 561-A, Cr.P.C. praying that the learned Special Judge be directed to record the statement of Amir Shah Nawaz, one of the legal heirs of Haji Abdul Majeed deceased, through video link or other modern device as he was working in Dubai and could not come to Pakistan.

4. Arguments heard.

5. Chapter XXV of the Code of Criminal Procedure, 1898 (the "Code"), prescribes the method for taking and recording of evidence in inquiries and trials in criminal cases. It does not provide for the taking of evidence by video conferencing. Nonetheless, there is no provision in the Code that prohibits it.

6. Bennion on Statutory Interpretation (Sixth Edition) states that "Acts can be divided into two categories, namely, the usual case of the Act that is intended to develop its meaning with developing circumstances (which may be called an ongoing Act) and the comparatively rare case of the Act that is intended to be of unchanging effect (a fixed-time Act)". It explains (at p.797): "(2) 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 (an updating construction). While it remains law, it has to be treated as always speaking. This means that in its application on any date, 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. (3) A fixed-time Act is intended to be applied in the same way whatever changes might occur after its passing. Updating construction is not therefore applied to it. (4) Where, owing to developments occurring since the original passing of an enactment, a counter-mischief comes into existence or increases, it is presumed that Parliament intends the court so to construe the enactment as to minimize the adverse effects of the counter-mischief."

7. Bennion elucidates the concept of an updating construction as follows: "An updating construction of an enactment may be defined as a construction which takes account of relevant changes which have occurred since the enactment was originally framed but does not alter the meaning of its wording in ways which do not fall within the principles originally envisaged by that wording. Updating construction resembles so-called dynamic interpretation, but insists that the updating is structured rather than at large. This structuring is directed to ascertaining the legal meaning of the enactment at the time with respect to which it falls to be applied. The structuring is framed by reference to specific factors developed by the courts which are related to changes which have occurred (1) in the mischief to which the enactment is directed, (2) in the surrounding law, (3) in social conditions, (4) in technology and medical science, or (5) in the meaning of words."

8. He further states: "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, social conditions, technology, the meaning of words and other matters. Just as the US Constitution is regarded as 'living Constitution', so an ongoing British Act is regarded as 'a living Act'. 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."

9. A learned Division Bench of the Karachi High Court in Shaikh Aijazur Rehman v. The State (NAB) through Director-General (NAB) and another (PLD 2006 Kar. 629) held that the Code is an ongoing statute and while approving Bennion's exposition ruled that it must be interpreted in a dynamic way so that it may serve the needs of the society. It observed that Section 353 of the Code which ordains that all evidence must be taken in the presence of the accused (or when his personal attendance is dispensed with, in presence of his pleader) should be given a progressive meaning. The term "presence" used in the said section should be interpreted to include constructive presence to allow recording of evidence through video conference. In Muhammad Hanif and others v. Karachi Electric Supply Company Limited and another (2013 CLC 571) a learned Single Judge of the same Court while interpreting section 20(1)(c) of the Electricity, 1910, accepted that the "interpretation of statutes, especially those dealing with technical matters, should be that they are 'always speaking'. Their meaning should be adopted and developed (if possible) to take into account subsequent developments".

10. The Supreme Court of India has also approved the aforementioned principle of updating construction and applied it in a number of cases. In State (through CBI/New Delhi) v. S. J. Choudhary (AIR 1996 SCW 1128) while holding that the Evidence Act, 1872, is an ongoing statute it ruled that the word "handwriting" in Section 45 thereof would include "typewriting". Similarly, in SIL Import USA v. Exim Aides Silk Exporters (AIR 1999 SC 1609), it held that "notice in writing" in Section 138 of the Negotiable Instruments Act were to be construed to include a notice by fax. Applying the same principle the Supreme Court of India has interpreted, over a period of time, various terms and phrases. For example, it has interpreted "stage carriage" 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 databases".1 More recently, in Aubrey v. The Queen [(2017) HCA 18] the High Court of Australia applied the "always speaking" approach in interpretation of section 35(1)(b) of the Crimes Act, 1900 (NSW). As a consequence, it held that a person having sexual intercourse with another causing him/her to contract a grievous bodily disease could amount to infliction of grievous bodily harm. The Court said that "the approach in this country allows that, if things not known or understood at the time an Act came into force fall, on a fair construction, within its words, those things should be held to be included."

11. India's Criminal Procedure Code, 1973, is analogous to our Code. It too does not contain any specific provision for recording of evidence through video conferencing. In State of Maharashtra v. Dr. Praful B. Desai (AIR 2003 SC 2053), the Supreme Court was confronted with the question as to whether a witness, Dr. Greenberg, must be compelled to come to India to give evidence. Holding that the Criminal Procedure Code, 1973, was an ongoing statutory instrument it ruled that he could testify on a video link. It reiterated that the doctrine contemporanea expositio est optima et fortissima in lege (the language of a statute must be understood in the sense in which it was understood when it was passed) has no application when interpreting the Code. The Supreme Court further observed that video conferencing was an advancement in science and technology which enabled one to see, hear and talk with someone far away with the same ease as if he was present before oneself. The accused and his counsel could see the witness as clearly as if he was actually sitting before them. In fact the accused could see the witness better than he would have if he was standing in the dock in a crowded court room. They could observe his or her demeanour and could even review it with a playback facility. Further, the witness could be confronted with documents or other material or statements in the same manner as if he/she was in court.

12. In Pakistan, Article 164 of the Qanun-e-Shahadat, 1984, empowers the Court to admit any evidence that may have become available because of technological advancement. This provision can reasonably be invoked for recording evidence through video link. It reads as under:

164. Production of evidence that has become available because of modern devices, etc.

In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.

13. The Court may also invoke Section 10 of the Punjab Witness Protection Act, 2018, for the aforesaid purpose. Even prior to that in Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others (2013 SCMR 203) the Hon'ble Supreme Court of Pakistan directed that in appropriate cases evidence of rape victims should be recorded through video conferencing so that the victims, particularly the juvenile, may not have to come to the Court. More recently, this Court through Letter No.2045/MIT/HC/2017 dated 27.1.2017 directed all trial courts in the Punjab to record evidence of magistrates through modern devices.

14. The use of video link/skype/video conference in Court proceedings and for recording of evidence of witnesses is gaining ground all over the world. In the United States, Maryland v. Craig [497 U.S. 836 (1990)] is the leading case on the subject in which the Supreme Court of United States held that recording of evidence by video-conferencing did not offend the Sixth Amendment (Confrontation Clause) and accepted child witness testimony via a one-way video. In David Harrell v. State of Florida [709 So.2nd 1364 (Fla.1998)], the Florida Supreme Court sustained a robbery conviction based largely on the two-way video testimony of complainants testifying from Argentina. In United States v. Gigante [166 F.3rd 75, 84 (2nd Cir.1999)], the U.S. Court of Appeals concluded that video-conferencing did not violate the U.S. Confrontation Clause. This case involved the testimony of a witness procured through video conferencing technology because the witness was too ill to testify at trial. The Court decided that two-way video technology adequately met the central concerns of the Constitution because the witness was sworn, he was subject to full cross-examination, he testified in full view of the jury, court, and defence counsel, and gave his testimony under the eye of Gigante - the defendant - himself.

15. In Ireland, section 13 of the Criminal Evidence Act, 1992, enacts that any person other than the accused whether he be within or outside the State can give evidence through television link. Such evidence is also required to be video recorded. Similarly, in Australia, sections 47-C to 47-E of the Federal Court of Australia Act, 1976, deal with recording of evidence through video/audio links or other appropriate means. New South Wales has enacted Evidence (Audio and Visual Links) Act, 1998 No.105 (NSW) to facilitate the taking of evidence, and the making of submissions, by audio links and audio video links. In the United Kingdom, the Access to Justice Act, 1999, allows video conferencing to be used for civil hearings. On the other hand, Section 51 of the Criminal Justice Act, 2003, enables the court to allow witnesses (other than the defendant) in the United Kingdom to give evidence by live link if the court is satisfied that giving evidence in this way is in the interests of efficient or effective administration of justice. Moreover, under Youth Justice and Criminal Evidence Act, 1999, evidence of vulnerable, intimidated or other witnesses can be recorded through video links. In Canada, Rule 1.08(1) of the Rules of Civil Procedure permits trial evidence by telephone or video conference. If both the parties do not consent to a witness giving evidence by telephone or video-conference then it is open to the court on motion or on its own initiative to make an order directing a video-conference on such terms as are just. In South Africa, section 158(2) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), as amended by the Criminal Law (Forensic Procedures) Amendment Act, 2010, specifies the instances in which a court may allow evidence to be taken through close-circuit television or similar electronic medium.

16. From the above discussion it follows that our legal framework and the case-law and legal practices developed in various countries allow our Courts to record evidence through video conferencing. Nevertheless, it has some problems. The most important among them are the identification of the witness and an assurance that he is not being prompted when his statement is recorded. Therefore, whenever in the course of an inquiry, a trial or other proceedings under the Code a witness is required to be examined through video link the following protocols should be observed:2 (i) The video conferencing should be held at the place approved by the Court. (ii) If the witness is in Pakistan, a commission should be issued to the Magistrate of the first class under section 503 or 506 of the Code to facilitate and supervise the process as hereinafter mentioned. (iii) If the witness resides in any country with which Pakistan has reciprocal arrangements, a commission as aforesaid should be issued to such Court or Judge having authority in this behalf as may have been specified in terms of subsection (2-B) of section 503 Cr.P.C. However, where no such arrangements exist, the statement of the witness must be recorded in Pakistan Embassy/High Commission or Consulate or, if the Court permits, in a Notary's office in the presence of an officer of that Embassy/High Commission or Consulate or the Notary, as the case may be.3 (iv) The judge, magistrate, officer of the Pakistan Embassy/High Commission, Consulate or Notary, as the case may be, must ensure that the witness is alone at the time of video conference and is not coached, tutored or prompted and he must submit his certificate to this effect to the Court. (v) Before examination of the witness under audio-video link starts he must submit to the judge, magistrate, officer of the Pakistan Embassy/High Commission, Consulate or Notary, as the case may be, his original identity card, passport, driving licence or other document to prove his identity along with an affidavit (signed and thumb marked) duly verified before a Judge, or a Magistrate or a Notary that the person who is shown as the witness is the same person who is going to depose on the screen. The said identification document and affidavit must be shown on the screen to the other side and the officer concerned must forward a copy of these papers duly attested by him in a sealed cover to the Court (for which expenses must be paid to him in advance) which must make it part of the record. (vi) As soon as the identification part is complete, oath should be administered to the witness (if required by law) through the media according to the Oaths Act, 1873, or any other law for the time being in force. (vii) The witness should, as far as possible, be examined during the working hours of the Courts in Pakistan. (viii) The proceedings must be conducted, as far as practicable, without any interruption and no adjournment should be granted unless the Court thinks that it is extremely necessary to meet the ends of justice. (ix) The Court must provide to the witness copies of any documents that he may be entitled to demand under any law for the time being in force. (x) The Court must record any remark as is material regarding demeanour of the witness while on the screen and should note the objections raised during the proceedings either manually or mechanically. (xi) Deposition of the witness either in the question-answer form or in the narrative form must be reduced to writing by the Court and must be read over to the witness and if possible his digital signature must be obtained as a proof of its correctness. After that the Presiding Officer must also sign it and make the same part of record. (xii) The visual must be recorded at the Court's end, secured with the seal of the Court and made part of the record. (xiii) If a video link fails during the proceedings, the Court may adjourn the proceedings or make such other order as it may deem appropriate. (xiv) In case of perjury the Court would be competent to proceed not only against the witness who gave false evidence but against the person who abetted it. (xv) Unless the Court directs otherwise, the expenses for the arrangements should be borne by the applicant who wants this facility. The same should be deposited with the Court in advance. (xvi) The Court may put such other conditions and issue directions as may be required in the circumstances of a case to meet the ends of justice and attain the object. (xvii) Depositions of the magistrates in terms of Letter No.2045/MIT/HC/2017 dated 27.1.2017, supra, and other official witnesses should be recorded in accordance with the instructions issued by this Court from time to time. (xviii) The Court may at any time vary or revoke a direction/ permission for examination of a witness on video link. (xix) The Court must not make a direction for examining a witness on video link if: (a) the necessary facilities are not available or cannot reasonably be made available, or (b) the Court is satisfied that the evidence can more conveniently be given or made in the courtroom, or (c) the Court is satisfied that the direction would be unfair to any party to the proceedings, or (d) the Court is satisfied that the person in respect of whom the direction is sought would not give evidence or make the submission.

17. In the instant case, Amir Shah Nawaz whose statement is sought to be recorded is in Dubai and cannot come to Pakistan without incurring a huge expense. Since, there is no legal impediment in granting permission for recording his statement on video link, the request is allowed. However, this would be subject to the protocols mentioned in the preceding paragraph so far as they may be applicable.

18. This application is accepted subject to the above terms. JK/M-81/L Application accepted.