1996 PLP 1668 (SCMR)

(1) voluntary presentation of incriminating-material; (2) production of non-incriminating material which may advance the investigation or even exonerate the accused; and (3) production of incriminating material otherwise than through compulsion. The prohibition attaches only to the incriminating material which the accused does not want to produce. It is privilege of the accused. It can be exercised against the whole world. Its exercise can be waived as well. This aspect of the case has been highlighted in the following words in American Jurisprudence,, Second Edition in volume 81 at page 81, para. 49:-- "The privilege not to give self-incriminating evidence does not exist for practical purposes unless claimed by the person entitled to it. If in any case, proceeding, or investigation a witness testifies without objection on the ground of privilege, he must be deemed to have intended to waive his privilege, and his evidence must be considered in reaching proper conclusions. In general, the objection that an answer to a question asked would tend to incriminate the witness must be made at the threshold of the examination, and not after he has, to some extent, given incriminatory testimony. However, the witness need not invoke the privilege until testimony sought to be-elicited will in fact tend to incriminate him. Where the question tending to elicit matters involving the witness in a suspicion of crime first arises on cross-examination, the witness is still allowed his privilege, unless he has understandingly waived it." Therefore, to exclude on any interpretation an accused from section 94(1), Cr.P.C. would not be justified because the accused under that section can still be called upon to produce evidence which is not incriminating or which exonerates him or which he voluntarily is prepared to submit. As regards the protection afforded by this Article (Article 13(b)), if the accused considers any piece of evidence as incriminating him, the privilege granted can be claimed. He has to refer the authority, be it police or Court or any other, to his privilege and the exercise of it by him. The Police is not competent to determine whether the privilege has been properly exercised by him or not. Its exercise is sufficient for it to hold its hands. The Police thereafter cannot take the coercive steps that are reserved for it under section 94, Cr.P.C. for getting through the accused such documents. Independently of the accused, there is no restraint on its power of recovery, seizure and custody. Just like a privileged document, a person can be asked to produce it during the proceedings and the person exercising authority over it can claim privilege or may waive it to produce it before the authority. This choice to exercise the privilege can be adjudicated only in Court and not elsewhere. Similarly, the exercise of privilege and protection against incrimination enjoyed by the accused cannot be adjudicated by any authority other than the Court and the Court will take note of it when the protection is claimed. There is, therefore, no need to exclude the accused altogether from section 94, Cr.P.C.

10. A large question which necessarily arises in these cases has engaged our attention. It is whether for the propose of clause (b) of Article 13 of the Constitution, "person" includes an incorporated entity like a public or private limited company. Article 260 of our Constitution defines "person" so as to include anybody politic or corporate unless the context otherwise requires. In clause (b) of Article 13 only those accused are granted protection who can appear as a witness against themselves. The protection is against appearing as a witness against oneself. Now the question is who can appear as a witness. Can a company or an incorporate entity appear as a witness? The clear answer would be no. Therefore, in the context of clause (b) of Article 13, a human being, a, corporeal being a natural person, has to be in existence for claiming this protection. It cannot be availed of by an incorporated company. This aspect of Constitutional provision has not received consideration or attention in Triplex Safety Glass Co. Limited v. Lancegaye Safety Glass (1934), Ltd. (1939) 2 . All ER

613. In M.P. Sharma and others v. Satish Chandra, District Magistrate, Delhi and others (1954) Supreme Court Reports 1077 this aspect of the case was examined in the following words as pages 1087, 1088:-- "It may be noticed that some of the accused enumerated in the First Information Report are incorporated companies. But no question has been raised before us that the protection does not apply to corporations or to documents belonging to them

a question about which there has been considerable debate in the American Courts. On the above footing; therefore, the only substantial argument before us on this part of the case was that compelled production of incriminating documents from the possession of an accused is compelling an accused to be a witness against himself. This argument accordingly raises mainly the issue relating to the scope and connotation of the second of the three r components abovestated. Broadly stated that guarantee in Article 20(3) is against 'testimonial compulsion'. It is suggested that this is confined to the oral evidence of a person standing his. trial for an offence when called to the- witness stand. We can see no reason to confine the content of the Constitutional guarantee to this barely literal import. So, to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Article 20(3) is 'to be a witness'. A person can 'be a witness' not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (sec section 119 of the Evidence Act) or the like. ' To be a witness' is nothing more than 'to furnish evidence', and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word 'witness', which must be understood in its natural sense, i.e., as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as apposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so produced is confined to what transpires at the trial in the court-room. The phrase used in Article 20(3) is 'to be a witness' and not, be 'appear as a witness'. It follows that their protection afforded to an accused in so far as it is related to the phrase 'to be a witness' is not merely in respect of testimonial compulsion in the court-room but may well-extend to compelled testimony previously obtained from him. It is available, therefore, to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case. "

11. In our laws with regard to witnesses, evidence and testimonial compulsion, Qanun-e-Shahadat holds the field. Its Article 3 equivalent to section 118 of the Evidence Act provides the following test for persons to be witnesses:

"

3. Who may testify.

All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind: Provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence: Provided further that the provisions of the first proviso shall not apply to a person about whom the Court is satisfied that he has repented thereafter and mended his way: Provided further that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah for a witness, and where such witness is not forthcoming, the Court may take the evidence of a witness who may be available. Explanation.--A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them." This Article of the Qanun-e-Shahadat as well as its predecessor envisage a natural person and not an incorporated entity. This aspect of the case and the Constitutional protection has received utmost attention in the American Court cases wherein the rationale, the basis and the competing claims of public policy and jurisdictional norms have all been taken into consideration. The learned counsel for the appellants was asked to look to this particular aspect of the case. He has submitted a very well-prepared exhaustive paper on this aspect of the case as well.

12. Chronologically, the first case brought to our notice is of Edward A. Boyd and George H. Boyd, Claimants of Thirty-five Cases of Plate Glass v. United States (116 US 616-641). In this case the power of seizure and search for private papers of an individual came under consideration in the light of Fourth and Fifth Amendment to the United States Constitution. The Fifth Amendment related to the usual protection afforded to the accused against self-incrimination. The Fourth Amendment had another protection in the following words:-- "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized." The Supreme Court of the United States laid down the following law in that case:--. "The seizure or compulsory production of'a man's private papers to be used in evidence against him is equivalent to compelling him to be a witness against himself; and in a prosecution for a crime, penalty or forfeiture is equally within the prohibition of the Fifth Amendment. Both Amendments relate to the personal security of the citizen. They nearly run into and mutually throw light upon each other.. When the thing forbidden in the Fifth Amendment, namely: compelling a man to be a witness against himself, is the object of a search and seizure of his private papers, it is an ' unreasonable search and seizure' within the Fourth Amendment. Search and seizure of a man's private papers to be used in evidence for the purpose of convicting him of a crime, recovering a penalty, or of forfeiting his property, is totally different from the search and seizure of stolen goods, dutiable articles on which the duties have not been paid, and the like, which rightfully belong to the custody of the law. "

13. Next, in the case of Edwin F. Hale v. William Henkel, United States Marshal (201 U.S. 43-89) the following observations were made:-- "The right of a person under the 5th Amendment to refuse to incriminate himself is purely a personal privilege of the witness. It was never intended to permit him to plead the fact that some third person might be incriminated by his testimony, even though he were the agent of such person. A privilege so extensive might be used to put a stop to the examination of every witness who was called upon to testify before the grand jury with regard to the doings of business of his principal, whether such principal were an individual or a corporation. The question whether a corporation is a 'person' within the meaning of this amendment really does not arise, except, perhaps, where a corporation is called upon to answer a bill of discovery, since it can only be heard by oral evidence in the person of some one of its agents or employees. The amendment is limited to a person who shall be compelled in any criminal case to be a witness against himself; and if he cannot set up the privilege of a third person, he certainly cannot set up the privilege of a corporation." In the case of Christopher C. Wilson v. United States (

221. US 361-394; (1910) 55 L.ed. 771) the Supreme Court of the United States held as hereunder:-- "Thus, in the case of public records and official documents, made or kept in the administration of public office, the fact of actual possession or of lawful custody would not justify the officer in resisting inspection, even though the record was made by himself and would supply the evidence of his criminal dereliction. If he had embezzled the public money and falsified the public accounts, he cannot seal his official records and withhold them from the prosecuting authorities on a plea of Constitutional privilege against self-incrimination. The principle applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transaction which are the appropriate subjects of Governmental regulation, and the enforcement of restrictions validly established. There the privilege which exists as to provide papers cannot be maintained. " In the case of United States of America v. Jasper White (322 US 694-705; (1943) 88 Led. 1542) the entire case-law on the subject was examined and the Supreme Court of the United States held as hereunder:-- "The Constitutional privilege against self-incrimination is essentially a personal one, applying only to natural individuals. It grows out of the high sentiment and regard of our jurisprudence for conducting criminal trials and investigatory proceedings upon a plane of dignity, humanity arid impartiality. It is designed to prevent the use of legal process to force from the lips of the accused individual the evidence necessary to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him. Physical torture and other less violent but equally reprehensible modes of compelling the production of incriminating evidence are thereby avoided. The prosecutors are forced to search for independent evidence instead of relying upon proof extracted from individuals by force of law. The immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime. While the privilege is subject to abuse and misuse, it is firmly embedded in our Constitutional and legal frameworks as a bulwark against iniquitous methods of prosecution. It protects the individual from any disclosure, in the form of oral testimony, documents or chattels, sought by legal process against him as a witness. Since the privilege against self-incrimination is a purely personal one, it cannot be utilized by or on behalf of any organisation, such as a cooperation. " In the case of Joseph Curcio v. States of America (354 US 118; 1 L.ed. 2d 1225; 77 SCt. 1145) the law on the subject was summarized as hereunder:-- "It is settled that a corporation is not protected by the Constitutional privilege against self-incrimination. A corporate officer may not withhold testimony or documents on the grounds that his corporation would be incriminated. Hale v. Hankel (201 US 43, 50 L.ed 652, 26 S.Ct. 370). Nor may the Custodian of corporate books or records withhold them on the ground that he personally might be incriminated by their production. Wilson v. United States, 221 US 361, 55 L.ed 771 31 S.Ct. 538, Ann Cas 1912 D 558; Essgee Co. v. United States, 262 US 151, 67 L.ed 917, 43 S.Ct. 514, Even after the dissolution of a corporation and the transfer of its books to individual stockholders, the transfers may not invoke their privilege with respect to the former corporate records, Grant v. United States, 227 US 74, 57 L.ed 423, 33 S.Ct. 190; Wheeler v. United States, 226 US 478, 57 L.ed 309, 33 S.Ct.

158. The foregoing cases stand for the principle that the books and records of Corporations cannot be insulated from reasonable demands of Governmental authorities by a claim of personal privilege on the part of their custodian. In United States v. White, 322 US 694, 88 L.ed 1542, 64 S.Ct. 1248, 152 ALR 1202, this principle was applied to an unincorporated association, a labour union. Stating that the privilege against self incrimination had the historic function of 'protecting only the natural individual from compulsory incrimination through his own testimony or personal records' (id. 322 US at 701), the Court held that 'the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity' (id. 322 US at 699)." This subject has also been considered in 82 Harvard Law Review at pages 201 and 81, Harvard Law Review at page 176.

14. In Pakistan, the only recent case directly touching this point is that of Syed Ikram Gardezi v. The State and another (1980 PCr. L.J. 941-Lahore) wherein the decision in the State of Gujarat v. Shyamlal Mohanlal Choksi (AIR 1965 SC 1251) and Masood Qureshi v. Aziz-ul-Hamid and another (PLD 1971 Lahore 678) were considered and it was held that mere asking an accused to produce a document or other things in .his possession would not ipso facto mean he s being compelled to be a witness against himself. He can refuse to be a witness, claiming protection of the Constitutional guarantee in which case he shall not further be vexed in the matter.

15. On a review of the case-law from jurisdictions comparable pertaining to the Constitutional guarantees by reference to which the appellants claim protection, we have come to the conclusion that section 94 of the. Criminal Procedure Code does not exclude the accused from its purview and that the guarantee contained in Article 13(b) of the Constitution is not available to incorporated bodies but is restricted to natural persons. On this view of the l matter, we find, no merit in these appeals and the same are dismissed with no order as to costs. A.A./A-1248/S Appeals dismissed.