20000121

Audio, video cassettes

are not 'documents',

says ATC judge

RECORDER REPORT

KARACHI: The Anti-Terrorism Court Judge, Rehmat Hussain Jafferi, hearing the October 12 plane conspiracy case, has held in his order of January 19, that audio/video cassettes do not fall under the definition of documents.

The court in its order on the issue of supply of copies of recordings on spools, as was demanded by the defence counsel, in the plane conspiracy case against deposed prime minister Nawaz Sharif and six others, under Section 265-C has reproduced the section in question as under:

(I) In all cases instituted upon a 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 trial, namely, (a) the first information report, (b) the police report, (c) statement of all the witnesses recorded under sections 161 and 164 Cr. P.C., 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, if any.

Under these provision, the court is required to order provision of copies of the FIR, police report, statements of witnesses under sections 161 and 164 Cr. P.C., and "Mushirnama" of "Wardat". All the above document have been supplied to accused the and the defence counsel in the month of December, 1999.

Now the point arises as to whether the copies of spools are also covered under any clause of section 265-C Cr.P.C.

In this connection the defence counsel have relied upon the definition of the word "documents" as defined in section 2 (b) of Qanun-e-Shahdat Order which reads as under:

"Document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter.

Illustrations:

A writing is a document:

Words printed, lithograph or photograph are documents;

A map is a document;

An inscription on a metal plate or stone is a document;

A caricature is a document."

From the definition of document and illustrations made in the article, it is clear that the spools are not covered by any examples made in the definition of document. Article 164 of Qanun-e-Shahadat Order deals with the evidence collected through modern devices which reads as under:

"164. Production of evidence which reads as under: 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 of techniques".

Under this article, the spools fall within the definition of modern devices, therefore, it can be dealt with under this article. This article gives discretionary power to the court to allow the production of such modern devices as evidence in the case in which the court may consider appropriate. This provision would be applicable when the evidence collected through modern devices is to be produced in the court at the time of trial and then the question of its production or otherwise would be decided by the court.

While distinguishing the definition of document under English and Pakistani Laws, Mr. Justice Khalil Rehman Khan in his book. "Principle of Digest of the Qanoon-e-Shahadat" published by PLD publications, Nebha Road, Lahore, 1974 edition has observed at page 1376 as under:

"The term "document" under the English Law denotes the material substance on which thoughts of a man are represented by writing etc., whereas, under the Pakistani Law it is the matter represented on the material substance that constitutes the document."

It has also been observed on page 1877 as under:

"With a view to clear doubt as to admissibility and in order to facilitate the admission of material made available by the modern techniques the term "document" in English law includes in addition to a document in writing any map, plan, graph, drawing, photograph, disc tapes, sound track or similar device or any film, microfilm, negative, tape or similar device. Article 2(b) of Qanoon-e-Shahadat Order, 1984 which defines the "document" should be suitably amended so as to include the material evidence made available by modern device of techniques."

In the same book at page 1876 and 1877, the author after relying upon A. I. R. 1996 page 173 has observed as under:

"The record of conversation appearing on a tape recorder cannot be regarded as a statement in writing or reduced into writing. The expression "writing" appearing in section 145 of the Evidence Act 1872 (now Article 140) referring to the tangible object that appeals to the sense of sight and that which is susceptible of being reproduced by printing lithography, photography, etc. It is not wide enough to include a statement appearing on a tape which can be reproduced through mechanism of the tape recorder."

Thus the view taken by this court that spools do not fall within the definition of document as defined under section 2 (b) of Qanoon-e-Shahadat Order is supported by the above observation and authority.

The evidence collected through modern devises does not find place in section 265 Cr. P. C. which only deals with the recording of statements of witnesses by a police officer under section 161 or recording of statements by magistrate under section 164 Cr. P. C. , copy of FIR, challan, and Mushirnama of Wardat.

Thus the spools do not fall within the definition of witnesses and documents, but the same has been shown as case property in the column of challan by the police, as such, the spools are not covered by section 265-C Cr. P.C.