2023 P Cr (PLP)

FAHIM AHMED SIDDIQUI, J.

The petitioner is facing trial in NAB Reference No. 15 of 2020 in which the prosecution has produced PW Munir Hassan Ali for his evidence and production of certain records as mentioned in the seizure memo. While recording the deposition of the said witness, allegedly it has been objected on behalf of the petitioner that a proper authorization from the Board of Directors has not been produced. Such objection was raised by the petitioner through an application dated 14-04-2021 in which production of authorization of Board for handing over the record mentioned in Seizure Memo dated 16-06-2020 was called.

2. Nevertheless, after hearing the parties, such application was dismissed by the trial Court with the observation that neither such authorization is produced nor the same is available in the list of documents filed by the investigating officer in the reference. The impugned order reveals that on inquiry the witness has disclosed that he was orally authorized.

3. The learned counsel for the petitioner submits that the defence has raised objection even prior to the recording of the evidence of PW Munir Hassan Ali but the same was not considered. He submits that the learned Presiding Officer of the Accountability Court has to decide the objections raised by the defence before proceeding further but he did not do so. He submits that authorization from the Board was necessary and without the same the worth of the deposition of witness is questionable. According to him, in absence of such authorization, the documents produced should not be considered and the same should not be exhibited and to be declared as inadmissible. He continues to argue by submitting that the admissibility of the document has to be decided at the time of recording of the evidence and it will not be proper to let the same to be decided at the end of trial through final judgment. In support of his contention, he relies upon 2017 CLC 1221, PLD 2017 Supreme Court 265, 2018 SCMR 2092, 1997 MLD 806, AIR 1936 Lahore 183, and an unreported judgment passed by this Court in C.P. No. D-6338/2020.

4. Mr. Faisal Siddiqui, learned counsel for the applicant/intervener adopted the submissions made by the counsel for the petitioner and relied upon the case laws reported in 2018 SCMR 2092, 2003 MLD 676, 2021 MLD 408 and 2018 PCr.LJ 310.

5. Mr. Riaz Alam, learned Special Prosecutor NAB strongly opposed the instant petition. According to him, the cases of NAB pertain to white-collar offences in which a plethora of documents is usually collected as such it is practically difficult for the investigators to locate the original documents like authorization, in this case. He submits that the appearance of the witness before the trial Court is sufficient to presume that he was authorized. He contends that the documents produced are mentioned in the seizure memo as such they are admissible in the evidence while their veracity may be adjudged at the end of the trial through final judgment.

6. We have heard the arguments advanced and have gone through the relevant record and have also been enlightened from the cited case-laws.

7. In the instant matter, the sole objection of the petitioner is that the prosecution witness appearing to produce the documents pertaining to the complainant-company (PPL) is not properly authorized by the BOG, as such the said documents should not be produced and their production is inadmissible as per law. In this respect, we are of the view that the reference filed by the NAB Authorities is actually a criminal case and the production of evidence is to be considered on the touchstone of respective laws pertaining to the collection and production of evidence in a criminal case. The documents produced before the trial Court are obtained/collected by the investigator under a seizure memo for which section 94 of Cr.P.C. is relevant, which reads as under:

94. Summons to produce document or other thing.

(1) Whenever any Court, or any officer in-charge 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 officers 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 Bankers' Books Evidence Act, 1891 (XVIII of 1891) and relates, or might disclose any information which relates to the bank account of any person except with the prior permission. In writing of the High Court or the Sessions Judge within whose jurisdiction such bank or banker, as the case may be, is situated or carries on business. (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.

8. The above statutory provision has authorized a court as well as an investigator to collect the required documents and for collection of such documents, the investigation officer does not require any authorization even from a Court if the collection and seizure are needed from a company other than a banking company, and admittedly PPL is not a banking company. For the production of such document, a court has to issue a summons while an investigating officer has to give a written order for the production of the requisite documents, which indicates that in case of a criminal inquiry or investigation, there is no need for the investigators to seek any authorization for production and seizure of record and the person who is in possession of such record has no other option but to comply with such summons of the Court or order of the investigator.

9. Now another aspect of the case requires consideration, which pertains to the presumption of a document duly collected or seized under section 94, Cr.P.C. by the investigators. This feature is described under Article 91 of the Qanun-e-Shahadat Order, 1984 which is produced below:

91. Presumption as to documents produced as record of evidence.

Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by the Judge or Magistrate or by any such officer as aforesaid, the Court shall presume

that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken. 9(sic.) It is noteworthy that the above provision of law has also two fold application. One pertains to the production of a document by a witness before a Court while the other speaks about receiving such evidence by an officer authorized by law i.e. the investigating officer. If such document pertains to be a record or a memorandum of the evidence, and the same fulfill the other requirements of the aforementioned statutory provision, the presumption of genuineness will be attached to it as such the same may be considered as admissible evidence. Nevertheless, such presumption is a rebuttable presumption, as such, after production and exhibiting such document, its veracity is to be judged by weighing all the aspects including objection, relevancy and other factors. During the investigation, the investigators are duty-bound to collect every material including documentary evidence (either primary or secondary) and for their production, in Court the prosecutor must consider the factors attached to its admissibility.

10. In the present case, the defence is trying to brush aside the evidence of an important prosecution witness only on the ground that the witness was not authorized to produce such document to the investigators and subsequently to the Court. It is mentioned in the memo of the petition that the purported certificate of authorization was issued much after the preparation of the seizure memo. We have already pointed out that the scheme of criminal law is altogether different to civil proceedings. Besides, it should be kept in mind that PW Munir Hassan Ali has appeared before the trial Court as a prosecution witness and not as a witness appearing for or on behalf of the company, as such legally he is not supposed to seek any authorization from the Board to appear as a witness and produce the documents, which may belong to the company but collected by the investigating agency during inquiry or investigation. The investigators' actions regarding the collection of evidence cannot be hampered under the cover of the corporate veil if a cognizable offence has taken place within a company. In the present case, it will make no difference if the certificate of authorization by the Board was issued or obtained after the seizure memo. We are of the view that such authorization was done by the prosecution as a matter of abundant caution otherwise the same was least necessary.

11. Hence, we hold that the learned Presiding Officer of the Accountability Court has rightly rejected the application/objection raised regarding production of documents pertaining to the complainant-company through the impugned order or even at the time of recording of evidence of the aforementioned prosecution witness. So far as the cited case laws are concerned, in the backdrop of above discussion, the same are distinguishable to the facts and circumstances of the case in hand.

12. The ultimate outcome of the above discussion is that the instant constitution petition is not meritorious as such the same is dismissed along with pending applications. MH/A-135/Sindh Petition dismissed.