2024 PLP 1942 (MLD)

"There is one thing to which everyone in this country is entitled and that is a fair trial at which he can put his case properly before the judge... No cause is lost until the judge has found it so and he cannot find it without a fair trial." - Lord Denning Tariq Saleem Sheikh, J.

The Petitioners are booked in case FIR No. C-88/2019 dated 20.6.2019 registered at Police Station FIA Cyber Crimes Wing, Lahore, for offences under sections 295-A, 295-B, 295-C, 298-C, 34 and 109 of the Pakistan Penal Code, 1860 ("P.P.C."), and section 11 of the Prevention of Electronic Crimes Act, 2016. The court delivered them copies of statements and documents in terms of section 265-C of the Code of Criminal Procedure, 1898 ("Cr.P.C."), before the commencement of the trial. After some time, on 12.7.2021, they demanded that copies of other documents which were appended with the report under section 173 Cr.P.C. should also be provided to them. The Additional Sessions Judge dismissed their application vide Order dated 14.7.2021 (the "Impugned Order") on the ground that their provision is "inexpedient in the public interest." This petition under sections 435/439 Cr.P.C. questions the legality of that order.

2. The counsel for the Petitioners contends that the Impugned Order is perverse and not sustainable. Section 265-C Cr.P.C. entitles the Petitioners to have a copy of the police report and the documents which they are now demanding are a part thereof. They would be prejudiced in their trial if these are refused.

3. The Assistant Attorney General and the counsel for the Complainant/Respondent No.2 have supported the Impugned Order. They argue that the documents sought by the Petitioners have sacrilegious content and any hand-outs would endanger public peace and tranquility. Opinion

4. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), stipulates that it is the inalienable right of every citizen, wherever he may be, and of every other person for the time being in Pakistan, to enjoy the protection of law and to be treated in accordance with law. Chapter I of Part-II of the Constitution enlists the fundamental rights and Article 10A guarantees the right to fair trial. In Shabbir Ahmed v. Kiran Khursheed and 8 others (2012 CLC 1236) this Court held that Article 10A morphs Article 4 into a more robust fundamental right, covering both substantive and procedural due process. In an earlier case reported as Aftab Shahban Mirani v. President of Pakistan and others (1998 SCMR 1863) the Hon'ble Supreme Court of Pakistan held that the expression "due process of law" connotes that (a) the person concerned shall have notice of proceedings which affect his rights; (b) he shall be given reasonable opportunity to defend; (c) the tribunal or the court before which his rights are adjudicated is so constituted that it gives reasonable assurance of its honesty and impartiality; and (d) it is a court of competent jurisdiction.

5. Chapter XXII-A of the Code of Criminal Procedure, 1898, prescribes the procedure for trial of criminal cases by the High Court and the Courts of Session. Section 265-B Cr.P.C. expressly states that the said procedure is mandatory.

6. Indictment (framing a formal charge) is the first step in the trial of a criminal case. Section 265-C Cr.P.C. enjoins that the copies of certain statements and documents must be supplied to the accused before the commencement of trial. For our present purposes subsection (1) of the said section is relevant which is reproduced below for ready reference: 265-C. Supply of statements and documents to the accused.- (1) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely: (a) the first information report; (b) the police report; (c) the statements of all witnesses recorded under sections 161 and 164; and (d) the inspection note recorded by an investigation officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any: Provided that, if any part of a statement recorded under section 161 or section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused.

7. In Muhammad Riaz and another v. The State (PLD 2003 Lahore 290) a Full Bench of this Court observed that section 265-C Cr.P.C. was introduced to "meet the vacuum created by abolition of.commitment proceedings (Chapter XVIII of Cr.P.C.)" and enunciated the following principles: (a) The provisions of section 161 Cr.P.C. are independent of section 172 Cr.P.C. Section 161 requires an Investigating Officer to record statement of a person who is acquainted with the facts of the case separately and section 172 (which is independent) relates to maintenance of case diaries as record of the various stages through which the investigation has passed. It is only the case diaries which are meant to be treated as 'privileged' and shall not be made accessible to the accused. It clearly means that the statements recorded under section 161 of the Cr.P.C. are not privileged even if recorded in the body of the case diaries. (b) Section 265-C(1)(c) Cr.P.C. has impliedly repealed section 162 Cr.P.C. to the extent that it enioing that when the prosecution produces a witness at the trial whose statement has been recorded under section 161 Cr.P.C., the court shall on the request of the accused direct that a copy thereof be provided to him [in order that any part of such statement, if duly proved, may be used to contradict the said witness in terms of section 145 of the Evidence Act, 1872 (Article 140 of the Qanun-e-Shahadat, 1984)]. (c) The word "witnesses" appearing in section 265-C(1)(c) Cr.P.C. has been used in the broad sense. It covers all those persons who are acquainted with the circumstances of the case and are examined by the Investigating Officer during investigation. (d) The accused is entitled, as of right, to get copies of the statements of all the witnesses recorded under section 161 Cr.P.C. irrespective of the fact whether they have been cited as witnesses in the calendar attached to the challan or not. (e) The statements of the witnesses and other documents mentioned in section 265-C Cr.P.C. must be supplied to the accused at least seven days before the commencement of the trial. (f) Section 265-C Cr.P.C. has no bearing on the question of admissibility of a document or the statement of a witness which is determined in accordance with the provisions of the Qanun-e-Shahadat, 1984.

8. The right conferred by section 265-C Cr.P.C. on the accused is very valuable because the provision of the documents mentioned therein enables him to prepare his defence. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Satyen Bhowmick and others [(AIR 1981 SC 917); (1981) 2 SCC 109] the Supreme Court of India observed: "This is a very valuable right because without having the statements recorded by the police in his possession, it would be difficult, if not impossible, for an accused to defend himself effectively. It is well settled that fouler the crime the higher should be the proof. If an accused is not supplied either the statements recorded by the police or the statement of witnesses recorded at the inquiry or the trial, how can he possibly defend himself and instruct his lawyer to cross-examine the witnesses successfully and effectively so as to disprove the prosecution case." In Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1] the Supreme Court held that furnishing of documents to the accused is a part of the right to fair trial. Relevant excerpt is reproduced below: "

218. The liberty of an accused cannot be interfered with except under due process of law. The expression 'due process of law' shall deem to include fairness in trial. The court gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused places an implied obligation upon the prosecution (prosecution and the prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused. "

219. The role and obligation of the prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English system as afore-referred. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion of the prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain." The above observations were approvingly cited in P. Gopal Krishnan v. State of Kerala and others (AIR 2020 SC 1).

9. In the present case the Petitioners demand copies of the following documents which are annexed with the police report submitted under section 173 Cr.P.C: i) Copy of the application of the complainant with Whatsapp messages (20 pages); ii) Initial Technical Report of Mahmood Hashmi (7 pages); iii) Initial Technical Report of Sheraz (10 pages); iv) Third Technical Report of Mahmood Hashmi (5 pages); v) Forensic Report of Mahmood Hashmi 1.0 with DVD (74 pages); vi) Forensic Report of Mahmood Hashmi 1.1. with CD (37 pages); vii) Forensic Report of Zaheer (40 pages); and viii) Forensic Report of Zaheer 1.0 (9 pages).

10. An annexure is a set of legal documents which are added a the end of the report or book, to validate the information provided in the main text. It is a supplement to a written document but can stand alone. Thus, all documents annexed with the police report under section 173 Cr.P.C. form an integral part thereof. For the purpose of section 265-C Cr.P.C. the term "document" must be construed in the light of section 29 P.P.C read with section 4(2) Cr.P.C. which says that it denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter. In order to understand the import of the term "evidence" one may refer to Article 164 of the Qanun-e-Shahadat, 1984, which makes admissible any evidence that becomes available because of modern devices or techniques. Resultantly, the courts have intervened in a lot of cases and directed the prosecution to provide copies of video cassette, and audio and video data stored in the USB, CD and memory card to the accused.

11. In view of the above, the accused is entitled to have copies of all the attachments of the police report. The following observations of the Delhi High Court in the case reported as Prof. Bidyug Chakraborty v. Delhi University and others [2009 VI AD (Delhi) 1] are quite instructive although they were made in the context of departmental proceedings: "Admittedly, annexures/appendices to the inquiry report were not supplied to the petitioner, by the committee. Supplying copy of the inquiry report, without supplying copies of all its annexures/appendices does not serve the desired purposes and does not fulfil the legal obligation of the Disciplinary Authority in this regard. The annexures/appendices constitute an integral part of the Enquiry Report and cannot be separated from it. Supply of enquiry report without supplying all its annexures/appendices would therefore amount to not supplying the copy of the Enquiry Report itself."

12. The Additional Sessions Judge has relied upon the doctrine of public interest in the Impugned Order. It is necessary to see what this concept connotes before we examine whether he has correctly applied it.

13. Pendleton Herring posits that the notion of State is rooted in the existence of some basic common purposes. According to him, "the public interest is akin to the statements of ultimate ends that characterize political philosophy, varying from Plato's concern with the moral development of citizens as the purpose of the city-state to the Hobbes's emphasis on record, Locke's protection of natural rights, and the utilitarian's assertion of the greatest good for the greatest number. As these illustrations indicate, the existence of a common interest is an implicit assumption, although its more specific manifestation cannot be agreed upon. Yet both in traditional political thought and in contemporary organization theory, it has been noted that despite uncertainty about exactly what the shared interests may be, some measure of sharing exists for every human association." The public interest, as a concept, is generally employed in situations which "involve a conflict of interests or a problem of defending or interpreting broader or long-range considerations against special or more immediate factors."

14. In law, the term "public" is used in contradistinction to "private". The legislatures as well as the courts purposely avoid defining the phrase "public interest" because any such attempt may be counter-productive. There is, however, a consensus on all hands that it has a broad meaning. In London Artists Ltd. v. Littler, (1969) 2 All ER 193, Lord Denning M.R. said: "Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or others, then it is a matter of public interest on which everyone is entitled to make fair comments."6 In our country, in Mian Ayaz Anwar v. Federation of Pakistan and 3 others (PLD 2010 Lahore 230) this Court ruled that public interest or collective community interest is "a basket of various public interests, including public morality, public order, public health, national security and foreign policy of the country, besides fundamental rights of the others ... The public interest test involves both substantive and procedural due process."

15. In certain circumstances two or more aspects of public interests may be in conflict and the court may be confronted with the situation like the one Lord Reid found in Conway v. Rimmer, [1968] AC

910. He noted: "There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done."

16. It is always the prerogative of the court not the prosecution or the government to decide which aspect of the public interest is to be given preference. In Sankey v. Whitlam, (1978) 142 CLR Gibbs ACJ ruled that it should follow the principle mentioned berow to decide whether a document should be withheld from the accused: "The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v. Rimmer (1968) AC, at p 940, 'the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it'. In such cases once the court has decided that 'to order production of the document in evidence would put the interest of the state in jeopardy', it must decline to order production."

17. In the present case, the allegation against the Petitioners is that they shared some objectionable posts in the WhatsApp Group named "Sindh Salamat". The Complainant/Respondent No.2 happened to be a member of that group so he took screenshots of those messages and submitted them to the FIA with his complaint upon which the proceedings against the Petitioners and their co-accused were initiated. During investigation their laptops and cell phones were seized and sent for forensic examination. The Petitioners seek copies of the initial complaint, WhatsApp messages and the forensic reports. Evidently the prosecution case is founded on those documents and the Petitioners cannot prepare their defence without them. Even if there is some public interest in withholding them, it cannot outweigh the Petitioners' right to fair trial.

18. It is significant that the proviso to section 265-C(1) stipulates that if any part of the statement recorded under section 161 or section 164 Cr.P.C. is such that its disclosure to the accused would be inexpedient in the public interest, the court shall exclude (or allow the prosecution to exclude) it when furnishing him copies. The said proviso is conspicuously silent about other documents or material. The question is whether the prosecution can withhold those documents. In view of the opinion expressed in the preceding paragraph, it is not necessary to consider this question in the instant case so I leave it for some other time.

19. In view of the above, this petition is accepted and the Impugned Order dated 14.7.2021 is set aside. The trial court shall provide copies of the requisite documents to the Petitioners and proceed with the case in accordance with law. JK/S-60/L Petition allowed.