2018 P Cr (PLP)

FAHIM AHMED SIDDIQUI, J.

By invoking the revisional jurisdiction under sections 435, 439 read with section 561-A of the Code of Criminal Procedure (hereinafter referred as Cr.P.C.), the Applicant has assailed the order dated 30.03.2016, passed by the learned V Additional Sessions Judge Karachi South, on an application under section 94 of Cr.P.C. filed in Sessions Case No. 1393 of 2015, FIR No.311 of 2015, under sections 420/471/468/34, P.P.C. registered at Police Station Darakhshan, Karachi, whereby the said application was dismissed.

2. The case of the Applicant that he has filed an application under section 94 of Cr.P.C. in Sessions Case No. 1393 of 2015, wherein he has sought direction from the learned trial Court to the accused persons to produce original Sale Agreement dated 18.07.2003 before the trial Court for the purpose of investigation and verification, as according to the Applicant, the signature of the Applicant on the said sale agreement, has been forged/manipulated by the accused and according to the Applicant, the production of the said Sale Agreement before the trial Court was very material for just investigation of the offence, committed by the accused persons. The Applicant submitted that the said Sale Agreement was produced by the accused persons in Suit No. 10 of 2004, which was pending before this Court, as Ex. P-5/10 during his evidence and obtained the original from the learned Commissioner, appointed by the Court for recording his evidence. In the end, the Applicant submitted that the said Suit No. 10 of 2004 was dismissed by this Court vide judgment and decree dated 20.03.2015.

3. In the instant case, the question involved is that whether an accused can be compelled to produce any document or material in his possession under the provision of section 94 of Cr.P.C.? before entering into further discussion, I would like to reproduce the relevant portion of sections 94 and 96 of Cr.P.C., which read as follows: "94. summons to produce document or other thing:

(1) whenever any court, or, any officer incharge 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 officer 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 Banker's Books Evidence Act, 1891 (XVIII of 1891), and relates, or might disclose any information which relates to the bank account of any person except-- (a) for the purpose of investigating an offence under sections 403, 406, 408 and 409 and. sections 421 to 424 (both inclusive) and sections 465 to 477-a (both inclusive) of the Pakistan Penal Code, with prior permission in writing of a sessions judge ; and (b) in other cases, with the prior permission in writing of the High Court. (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. (3) nothing in this section shall be deemed to affect the Evidence Act, 1872, sections 123 and 124, or to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authorities 96. when search warrant may be issued:

(1) where any court has reason to believe that a person to whom a summons or order under section 94 or a requisition under section 95, subsection (1), has been or might be addressed, will not or would not produce the document or thing as required by such summons or requisition, or where such document or thing is not known to the court to be in the possession of any person, or where the court considers that the purposes of any inquiry, trial or other proceedings under this code will be served by a general search or inspection, it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provision hereinafter contained."

4. Regarding the issue under discussion, Article 13 of the Constitution of Pakistan is also important, which reads as: "

13. No person - (a) shall be prosecuted or punished for the same offence more than once, or (b) shall, when accused of an offence, be compelled to be a witness against himself."

5. Before construing section 94, Cr.P.C., it is necessary to recall the background of Article 13(b) of the Constitution. One of the fundamental canons of the Criminal Jurisprudence is that the accused should not be compelled to incriminate himself. This principle is enshrined in the Islamic jurisprudence and the same was later on adopted by English legislature and jurists. In sharia, an accused cannot be compelled to give a confession, and has the right to remain silent. A coerced confession or confession taken under force is not admissible. The strict requirements for acceptance of confessions in Islam stem from the concept that there is a higher justice than the justice in the courts. If the accused is truly guilty, but his guilt may not be fairly proven in court, he will still have to answer to God. The hidden truth is considered to be a matter between the individual and his Creator. The same principle was later on adopted in English jurisprudence. This principle in English jurisprudence is resulted from a feeling of revulsion against the inquisitorial methods adopted and the barbarous sentence, imposed, by the Court of Star Chamber, which became notorious for judgment favoring the king. In 1641, the parliament inflamed by the severe treatment of John Lilburne, as well as other religious dissenters passed an Act and abolished the Court of Star Chamber. As such, an era of firm recognition of the principle that the accused should not be put on oath and that no evidence should be taken from him. This principle, in course of time, developed into its logical extensions, by way of privilege of witnesses against self-incrimination, when called for giving oral testimony or for production of documents.

6. Now it is settled that it is not only under the principle of jurisprudence but also the Constitution has provided a protection to an accused that he should not be compelled to become witness against himself. No doubt, section 94, Cr.P.C. empowered a criminal Court to compel production of any document or other things in possession of any person and for the same purpose a warrant can be issued under section 96, Cr.P.C. However, in view of the settled principle of jurisprudence and under the provision of Article 13(b) of the Constitution of Pakistan, such directions cannot be issued to an accused against whom an enquiry or investigation is being carried out and/or trial is being held.

7. As mentioned above, the principle of protection against self-incrimination became established in English law and later on it was borrowed by other systems of law but it has also opened debate as to the utility of this system and serious doubts were held in some quarters that this principle has a tendency to defeat justice. However, it is a fact that the principle of the protection of accused against self-incrimination urges the prosecution to improve investigation and the investigators have to dig out the truth and proof by proper and detailed analysis of external sources and material in respect of an alleged or suspected crime instead of extortion of confessions from the suspected person or accused. No doubt, the principle of protection of self-incrimination is necessary to protect the innocent individual but it equally demands an active and effective investigation on unverified suspicion and if a criminal trial fails the poor and defective investigation and prosecution is responsible for the acquittal of a culprit.

8. From the above discussion, it is obvious that under section 94 of Cr.P.C., a discovery of documents or thing cannot be ordered against an accused as it is not only against the settled principle of jurisprudence but it is contrary to the Article 13(b) of the Constitution of Pakistan. Regarding the principle of protection of self-incrimination, a division bench of this Court in the case reported as Muhammad Yousuf v. The State (PLD 1988 Kar. 539) while considering the provision of section 340(2), Cr.P.C. in juxtaposition with Article 13(b) of the Constitution, held, that if an accused person makes statement on oath under section 340(2), Cr.P.C. he will be subjected to cross examination by the prosecutor and in the cross examination, he is bound to ask him questions, which can incriminate him in the commission of the offence which will amount to compelling him to be a witness against himself which is prohibited under Article 13(b) of the Constitution. From the observation of Muhammad Yousuf (supra) case, I comprehend that the accused person cannot be compelled to be a witness against himself even if he has volunteered to be examined on oath under section 340(2), Cr.P.C.

9. In view of the above legal and factual position, I am of the considered view that the learned trial Court has rightly dismissed the application filed by the applicant under section 94, Cr.P.C., as an accused cannot be compelled to produce any document or thing, which may go against him. Resultantly, the instant criminal revision is dismissed.

10. The above are the reasons for my short order dated 19th October, 2017. HBT/M-79/Sindh Revision dismissed.