Application 3986 in the SC (Hussain Nawaz Sharif requesting an order to stop JIT from recording sessions)

A Civil Miscellaneous Application ( C.M.A) No. 3986 of 2017 filed by Hussain Nawaz Sharif in the Supreme Court of Pakistan before Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz Ul Ahsan. The people in attendance were Kh. Harris Ahmed, Sr. ASC. , Mr.Wajid Zia, Head of JIT. , Mr. Aamir Aziz, Member JIT. , Mr. Bilal Rasool, Member JIT. , Mr. Irfan Naeem Mangi, Member JIT. , Brig. M. Nauman Saeed, Member JIT. , Brig. Kamran Khurshid, Member JIT. , Mr. Ashtar Ausaf Ali, A.G. for Pakistan. , and Rana Waqar, Addl, A.G.

The CMA was moved on behalf of Hussain Nawaz Sharif, one of the respondents, for issuance of an appropriate order directing JIT to stop video recording of the proceedings relating to the examination and interrogation of witnesses and to constitute an independent commission of a retired or sitting judge of this Court to inquire into the circumstances leading to the leakage of his image.

The Learned Sr. ASC appearing on behalf of the applicant contended that Sections 161 and 162 of the Cr.P.C. prescribed the manner for examination of witnesses and any other process of their examination would be against the law. The Counsel asserted that mere assignment of any statement to its author has been prohibited by the law so as to allow the witness to speak freely and honestly. Recording of such statement by audio-video electronic means should not and cannot be permitted as it is clearly much more than mere attribution of the statement to the author.

The Attorney General appearing on behalf of the Federation of Pakistan contended that recording police statements by electronic means, both audio and video, was out of question. Acknowledging the benefits of modern technology, he stated that law and processes of law could not be superseded and where the law stipulated a process to be carried out in a certain manner, it should always be carried out as such.

The Court after listening to both the parties, contended that section 161 Cr.P.C would reveal that a police officer investigating the case may examine any person who supposed to know facts of the case. Such person shall be bound to answer the questions relating to the case except the questions leading to criminal charge, penalty or forfeiture. While reading of Section 162 Cr.P.C would reveal that no statement made by any person to a police officer, be signed by the person making it, recording of such statement by audio video electronic means could be treated at par with a statement which has been signed by its maker, inasmuch as it hampers his freedom to testify in the Court. But in any case use of audio or video devices to facilitate the recording of such statement cannot be said to have been prohibited by any interpretation of the provisions (Sections 161 & 162 Cr.P.C) when the finished product to be used in the Court to confront the witness is the statement reduced to writing and not its audio or video recording.
The Court gave reference of a case of the Indian Supreme Court State of Rajasthan. Vs. Teja Ram and others ((1999) 3 Supreme Court Cases 507);
“If any investigating officer ignorant of the said provision secured the signature of the person concerned in the statement, it does not mean that the witness’s testimony in the Court would, therefore, become contaminated or vitiated, the Court will only reassure the witness that he is not bound by such statement albeit his signature finding a place thereon.”

The Court added that In the age of technology where almost everything is communicated and transacted online, emphasis on the form of doing a thing as it used to be done in 1898 would amount to putting at naught the dynamics of scientific and technological advancements which have not only liberated man from exhausting labor but also made daily activities easier. Law in many countries of the East and the West has been changed and even re-enacted to acknowledge this change. Addition of the word ‘truly’ in sub-Section 2 after the word ‘answer’ and insertion of the proviso to sub Section 3 of Section 161 of the Code of Criminal Procedure, 1973 of India, providing for recording of such statement by audio-video electronic means is an illuminating example on the subject. Even though audio or video recording cannot be admitted into evidence for the proof of such statement till the law is amended, as it has been amended in India and other countries, its use to facilitate recording of such statement cannot be discouraged on the basis of pedantic interpretations of Sections 161 and 162 of the Cr.P.C.

The honorable Court stated that it was not persuaded to countenance the request thus made. The other prayer of the applicant could not be attended to at this stage as the response of the learned Attorney General for Pakistan had not been received for the inquiry report as to the leaka of the image.

The application was therefore not entertained.