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Criminal Revision No. 542 of 1978, de sided on 16th May, 1979

-‑‑Ss. 94 & 340 (2) (a) read with Constitution of Pakistan (1973), Art. 13 and Laws (Continuance in Force) Order (C.M.L.A.'s No. 1 of 1977), para. 2 .(3)‑Mere asking an accused to produce documents and other things in his possession‑Would not mean his being compelled to be a witness against himself in violation of guarantee provided by Art. 13 of Constitution‑Guaranteeing such a right to an accused person, held, already provided in S. 340 (2) (a). Cr. P. C. and Art. 13 only gives a Constitutional protection to rule‑Case, held further, does not involve question of enforcement of any fundamental right to invoke provisions of Art. 13 of Constitution and para. 2 (3) of Laws (Continuance in Force) Order, 1977 [C. M. L. A. 's No. 1 of 1977].

‑‑‑ Any rule laid down by Indian Courts albeit Supreme Court‑Not binding on Courts in Pakistan but only having a persuasive value‑‑Contrary view taken by Supreme Court of India, held, cannot justify reconsideration of any rule laid down by a High Court in Pakistan.‑[Precedent].

‑‑ Ss. 94 & 96 read with Constitution of Pakistan (1973), Art. 13‑Interpretation of statutes‑Contention that if Legislature intended to include an accused by using word "person" in Ss. 94 & 96, Cr. P. C., same would become ultra vires of Art. 13 (b) of Constitution‑Contention, held, misconceived.

All that is guaranteed tinder Article 13 of Constitution of Pakistan (1973) is that no person shall when accused ‑ of an offence be com pelled to be a witness against himself. In fact Article 13 of the Constitution has accorded Constitutional 'status to the rule already embodied in section 340 (2) (a), Cr. P. C. Legislature has taken care of the situation in subsection (2) of section 94, Cr. P. C. It provides that any person required under this section 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. Calling upon an accused to produce document is one thing and to compel him to be a witness against himself, quite another ; both cannot be equated. If the argument that the material collected from the accused under section 94 or 96 of the Criminal Procedure Code, can be used as evidence against him and therefore, the provisions are ultra vices of Article 13 of the Constitution accepted, quite a number of other statutory provisions shall have to be struck down. Under section 165, Cr. P. C. whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, search, or cause search to be made, for such thing in any place within the limits of such station ; under section 73 of the Evidence Act the Court is authorised with a view to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written, made or signed ; to direct any person present in Court to write any word or figures' for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person such a power, no doubt, extends to calling upon an accused person to give his writing in Court and make it available for comparison by an Expert etc. The case, therefore, does not involve the enforcement of any funda mental right. Rule of immunity against self‑incrimination prevails in the United Kingdom, United States of America and India. In the United States of America, such an immunity was given Constitutional status in the fifth amendment. It is worded thus :‑‑

"No person shall be compelled in any criminal case to be a witness against himself."

Similar is the provision in the Indian Constitution. Article 13 of our Constitution is also worded almost in the same language. In United States of America the rule by judicial interpretation has received a much wider application. The privilege is held to apply to witnesses as well as parties in proceedings civil and criminal : it covers documentary evidence and oral evidence, and extends to all disclosures including answers which by themselves support a criminal conviction, or furnish a link in the chain of evidence, and to production of chattel sought by legal process. Similar is the rule, based on judicial pronouncement in the United Kingdom. The rule as it prevails in the United Kingdom or United States of America, has never been accepted in our Courts or even in India. Scattered through a number of statutes are provisions which tend to show that the rule has not been given that much recognition. Section 132 of the Evidence Act enacts in no uncertain terms that a witness shall not be excused from answering any questions as to any matter relevant to the matter in issue in, any suit or in any civil or criminal proceedings, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind. Safeguard is, provided only that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or to be proved against him in any criminal proceedings, except a prosecution for giving false evidence by such answers. We way also come across statutory provisions by which a person can be compelled to produce information or evidence in proceedings which may involve imposition of penalties against him. It will, therefore, be difficult 'Ed interpret the provisions of sections 94 and 96 of the Code of Criminal Procedure keeping in view the rules as is understood in the United States of America or United Kingdom‑

---Ss. 94 & 96 read with S. 6 (I)‑Interpretation of statutes‑Word Sperson" as appearing in Ss. 94 & 96, Cr. P. C. ‑Held: Includes an accused person.

Section 94, Cr. P. C., prima facie, authorises a Magistrate or a police officer for the purpose of any investigation, inquiry, trial or other pro ceedings to call upon any person in whose possession or power a document or thing is believed to be, to direct him to attend and produce it at the time and place stated in the summons or order. Paragraph 1 of sec tion 96 (1) provides that where any Court has reason to believe that a person to whom a summons or order under section 94 or a requisition under sec tion 95 (1) has been or might be addressed, will not or would not produce the document or thing as required by such summons or requisition, ......... the Court may issue a search warrant. If section 94 (1), Cr. P. C. does not authorise. a Magistrate to issue a summons to a person accused of an offence for he production of a document or thing irk his possession evidently in exercise of the powers under section 96 (1), no warrant may be issued to search for a document or thing in his possession. Paragraphs 2 and 3 are undoubtedly not related to section 94 (1). Under paragraph 2 a Court may issue a search warrant where the document or thing is not known to the Court to be in the possession of any person; if it is known to be in the possession of any person, paragraph 2 cannot be resorted to. Again, if the interpretation of the first para graph that a search warrant cannot issue for a thing or document in the possession of a person accused be correct, issue of a general warrant under the third paragraph which may authorise the search of a.place occupied by the accused or to which he had access would in substance amount to circumventing the restriction implicit in paragraph 1. Nature of the power reserved to Investigating Officer by section 165 of the Code of Criminal Procedure must also be considered. Section 94 (1) authorises a police officer to pass a written order for the production of any document or thing from any person in whose possession or power the document or thing is believed to be. If section 94 (1) does not extend to the issue of an order against an accused person by a police officer, would the police officer incharge of the investigation, be entitled to search for a thing or document any place occupied by the accused or to which he has access for such document or thing To assume that the police officer in charge of the investigation may in the course of investigation exercise powers which cannot be exercised when the Court issues a search warrant would be wholly illogical. To deny to the investigating officer the power to search for a document or thing in the possession of a person accused is to make the investigation in many cases a farce. Again, if it be held that a Court has under the third paragraph of section 96 (1) power to issue a general search warrant. exercise of the power would make a violent infringement of the protection against self‑incrimination, as understood in the United Kingdom, because the Courts in that country frowned upon the issue of a general warrant for search of a document or thing.

Masood Quresht v. Aziz‑ul‑Hamid and another P L D 1971 Lah. 678 rel.

State of Gujrat v. Shyamlal Mohanlal Choksi A I R 1965 S C 1251 ; State of Bombay v. Kathi Kalu Oghad A I R 1961 S C 1808 ; Raja Narayanlal Bansilal v. Maneek Phiroz Mistry and another A I R 1961 S C 29 and George Joseph v. M. A. Narayanan A I R 1964 S C 1552 ref.

Khan Khalil‑ur‑Rehman Khan for Petitioner.

Kh. Mohammad Aft al, A. A.‑G. assisted by S. A. Tughral for the State.

Raza Kazim for Respondent No. 2.

Dates of hearing : 2nd and 3rd March, 1979.

This revision by Syed Ikram Gardezi an accused in a complaint case filed by respondent No. 2, Mrs. Farrukh Rahim Jan (hereinafter referred to as the respondent) under sections 406/408, P. P. C. and 28 of the Companies Act, is directed against an interim order of the trial Magistrate dated 12th July, 1978 calling upon the petitioner to produce certain documents from his possession.

2. Facts providing necessary background and relevant to the disposal of this petition, briefly stated, are that respondent is a Director of Rahim Jan & Company (Unlimited) (Management Consultants) while the petitioner, allegedly, held a token share of Rs.100 in the company. Petitioner, on the facts stated in the complaint had allegedly committed breach of trust and had, for filing with the Registrar, Joint Stock Com panies prepared false documents. The complaint was accompanied by an application under section 94, Cr. P. C. for an order directing the petitioner to produce certain documents from his possession. Simulta neously another application on the same subject was filed for a direction to the Registrar Joint Stock Companies for the production of complete file of the Company containing Returns, Resolutions, Applications, Memorandum and Articles of Association etc. maintained in his office. After recording preliminary evidence, admittedly; petitioner was summoned as an accused on 25th June, 1978. On 26th June. 1978, learned trial Magistrate directed the issuance of summons to the petitioner. calling upon him to produce documents on 27th June, 1978 at 7‑30 a. m. Summons were allegedly served on the petitioner at 2‑30 p. m. on 27th June, 1978. He, therefore, could not comply with the direction of the learned Court. On 28th June, 1978, petitioner submitted an application pointing out inter alia, that an accused in a case cannot fee directed to produce documents. The application of the respondent and the objections raised by the petitioner were disposed of finally by order dated 12th July, 1978. Relying on the judgment of this Court in Masood Qureshi v. Aziz‑ul‑Hamld and another (P L D 1971 Lah.678) learned trial Magistrate hay taken the view that such a direction can be issued to, even, an accused person. It seems that he was also impressed by the arguments raised by the respondent that he could not review his earlier order dated 26th June, 1978.

3. Only point argued in this Court is in regard to the competence of the Magistrate to call upon the accused under section 94, Cr. P. C. to produce documents. Learned counsel for the petitioner has raised the following two contentions : ‑‑

(i) Words "to the person in whose possession or power such document or thing is believed to be" used in section 94, Cr. P. C. should be given restricted meaning. Person' cannot be said to include accused in the case. If larger meanings are given to the word "person" used in the 4ection, it is tantamount to defeating the well recognised rule of criminal jurisprudence, i.e., protection against self‑incrimination. Even‑a search warrant under section 96, Cr. P. C. cannot be issued against an accused. In P L D 1971 Lah. 678, for holding the view that "a Magistrate can certainly issue summons or search warrants as the case may be for the production of account books," reliance has been placed on E. F. Graves v. Pitumal Houndamal A I R 1943 Sind 51 ; Satya, Kinkar Roy v. Naikhil Chandra Jyotishopadhaya A I R 1951 Cal. 101. However, a later judgment of the Indian Supreme Court State of Gujrat v. Shyamlal Mohanlal Choksi ‑A 1 R 1965 S C 1251, which had expressly overruled A I R 1951 Cal. 101, was not brought to the notice of the learned Judge. In this case, Indian Supreme Court has taken the view that word person' in section 94, Cr. P: C. cannot be interpreted to include an accused as well. Reference was also made to State of Bombay v. Kathi Kalu Oghad A I R 1961 S C 1808 ; Raja Narayanlal Bansilal v. Maneck Phiroz Mistry and another A I R 1961 S C 29 and George Joseph v. M. A. Narayanan A 1 R 1964 S C 1552..

(ii) In case, on the plain language used in sections 94 and 96, Cr. P. C. it is difficult to accept the above view, these sections to the extent are ultra vires of. Article 13 of the Constitution which inter alia, guarantees that no person shall, when accused of an offence be compelled to be a witness against himself. Question as to the enforcement of a fundamental right having been raised, this petition be kept pending as under para. 2 (3) of the Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order No. l of 1977), the fundamental right conferred by Chapter I, Part II of the Constitution and all proceedings pending in any Court, in so far as they are concerned, for the enforcement of any of those rights shall stand suspended.

4. Learned counsel for the respondent and the learned Additional Advocate‑General, on the other hand, argued that this Court in P L D 1971 Lah. 678. has taken a definite view that the word 'person' in section 94, Cr. P. C. also includes an accused in the case. Summons, therefore, can be issued to the accused person for the production of documents from his possession. There is no occasion for reconsidering this view. The case does not involve the enforcement of any fundamental right. Article 13 of the Constitution has only guaranteed that no person shall, when accused of any offence be compelled to be a witness against himself. As embodied in section 94, Cr. P. C., if he is called upon to produce documents and other things in his possession, it does not follow that he is thus compelled to be a witness against himself. He can refuse to examined as a witness. Guaranteeing such a right to an accused person in Article 13 of the Constitution, rule already provided in section 340 (2)(a) Cr. P. C. has been given a constitutional status. To restrict the meaning of the word 'person' used in section 94, Cr. P. C. would amount to legislate which the Courts under the garb of interpreting the statutory provisions, are not permitted. Section 94, Cr. P. C. read with section 6 (1), Cr. P. C.: does not leave any room for doubt that the word person' is intended to include accused as well. Any rule laid down by the Indian Courts albeit the Supreme Court of India is not binding on this Court ; it may have some persuasive value. Even if a contrary view is taken in A I R 196 S C 1251, it will not justify reconsideration of the rule laid down by this Court in P L D 11971 Lah. 678.

5. I have given my anxious thought to the points, which on account of the cleavage in the view of the Indian Courts have assumed some difficulty, raised before me. I have gone through the case‑law cited at the bar.

6. It would be advantageous if at the very outset I may‑ refer to the relevant statutory provisions. Section 94, Cr. P. C. reads :‑

"(1) Whenever any Court, or any officer in charge 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 ...

(a) . .

(b) .

(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) ..."

Section 96, Cr. P. C. provides :‑

(1) Where any Court has reason to believe that a person to whom it 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 the Court considers that the purposes of any inquiry, trial or other proceedings under the 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 provisions hereinafter contained.

(2) ...."

7. Article 13 (b) of the Constitution guarantees

"No person ...

(a) ........

(b) shall, when accused of an offence be compelled to be a witness against himself."

8. There cannot be any dispute with the proposition that the rule laid down by the Indian Courts albeit Supreme Court of India is not binding on this Court. Learned Judge delivering the judgment in the Lahore case (P L D 1971 Lah. 678) even if did not take note of the fact that Calcutta view (A I R 1951 Cal. 101), has been overruled by the Supreme Court of India (A I R 1965 S C 1251), his view will not be open to review on this ground alone. He could have followed Calcutta ruling in preference to the view of the Supreme Court of India or he may follow the minority view of the Supreme Court of India. This argument of the learned counsel for the petitioner, therefore, has not impressed me. However, I find that in the Lahore case the learned Judge was considering the aspect if a search warrant could be issued against an accused person and if so at what stage. His observation, therefore, with reference to section 94, Cr. P. C. is an obiter dicta. The question has directly arisen in the case in hand. My humble view, therefore, is that irrespective of the observations by the learned Judge in the Lahore case, I am entitled to consider the points raised, independently.

9. The second contention of the learned counsel, dealing with the same first, that if the Legislature intended to include an accused using the word "person" in sections 94 and 96, Cr. P. C. the same is ultra vires of Article 13 (b) of the Constitution, has not impressed me. All that is guaranteed under Article 13 is that no person shall when accused of a offence be compelled to be a witness against himself. In fact Article 1 of the Constitution has accorded constitutional status to the rule already embodied in‑section 340 (2) (a), Cr. P. C. Legislature has taken care o the situation in subsection (2) of section 94, Cr. P. C. It provides that any person required under this section to produce a document or other thing shall be deemed to have complied with the requisition if he cause such document or thing to be produced instead of attending personally to produce the same. Calling upon an accused to produce document is one thing and .to compel him to be a witness against himself, quite another ; both cannot be equated. If the argument that the material collected from the accused under section 94 or 96 of the Criminal Procedure Code. can be used as evidence against him and therefore, the provisions are ultra vires of Article 13 of the Constitution be accepted, quite a number of other statutory provisions shall have to be struck down. Under section 165, Cr. P. C. whenever an officer incharge of a police station or a Police Officer, making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into an offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached.........................................................................search, or cause search to be made, for such thing any place within the limits of such station ; under section 73 of the Evidence Act the Court is authorised with a view to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written, made or signed : to direct any person present in Court to write any word or figures' for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person‑such a power, no doubt, extends to calling upon an accused person to give his writing in Court and make it available for comparison by an Expert etc. The case, therefore, does not involve the enforcement of any fundamental right.

10. Rule of immunity against self‑incrimination prevails in the United Kingdom, United States of America and India. In the United States of America, such an immunity was given constitutional status in the fifth amendment. It is worded thus :‑

"No person ..shall be compelled in any criminal case to a witness against himself."

Similar is the provision in the Indian Constitution. Article 13 of out constitutional is also worded almost in the same language. In United States of America the rule by judicial interpretation has received a much wider application. The privilege is held to apply to witnesses as well a parties to proceedings civil and criminal : it covers documentary evidence and oral evidence, and extends to all disclosures including answers whit' by themselves support a criminal conviction, or furnish a link in the chain of evidence, and to production of chattel sought by legal process. Simila is the rule, based ‑ on judicial pronouncement in the United Kingdom. The rule as it prevails in the United Kingdom or United States of America has never been accepted in our Courts or even in India (Set minority judgment. in A I R 1965 S C 1251). Scattered through a number of statutes are provisions which tend to show that the rule has not been given that much recognition. Section 132 of the Evidence Act, enacts in no uncertain terms that a witness shall not be excused from answering any questions as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceedings, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind. Safeguard is provided only that no such answer, which witness shall be compelled to give, shall subject him to any arrest off prosecution, or to be proved against him in any criminal proceeding's except a prosecution for giving false evidence by such answers. We maul also come across statutory provisions by which a person can be compelled to produce information or evidence in proceedings which may involve imposition of penalties against him. It will, therefore, be difficult to interpret the provisions of sections 94 and 96 of the Code of Criminal Pro cedure keeping in view the rules as is understood in the United States of America or United Kingdom.

11. Golden rule of interpretation of statute as laid down in Grey v. Pearson ((1857) L H L C 61) is that in construing wills, and indeed statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity. or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no further. Moreover, "it is a sound rule of construction", said Cleasby B. in Courtauld v. Legh ((1869) L R 4 Ex.126) "to give the same meaning to the same words occurring in different parts of an Act of Parliament."

In construing the word "person" used in sections 94 and 96 of the Code of Criminal Procedure, I do not find any reason to depart from these well‑recognised rules of constructions. Nor is there any sufficient reason to construe the word "person" in section 94 differently than as used in section 96. If the interpretation as suggested by the learned counsel for the petitioner is accepted, the same will interfere with the smooth working of the scheme of the relevant provisions of the Code of Criminal Procedure. Section 94, Cr. P. C. prima facie, authorises a Magistrate or a Police Officer for the purpose of any investigation, inquiry, trial or other proceedings to call upon any person in whose possession or power a document or thing is believed to be, to direct him to attend and produce it at the time and place stated in the summons or order. Paragraph I of section 96 (1) provides that where any Court has reason to believe that a person to whom a summons or order under section 94 o a requisition under section 95 (1), has been or might be addressed, will not or would not produce the document or thing as required by such summons or requisition, the Court may issue a search warrant. If section 94 (1), Cr. P. C. does not authorise a Magistrate to issue a summons to a person accused of an offence for the production of a document or thing in his possession evidently in exercise of the power under section 96 (1), no warrant may be issued to search for a document or thing in his possession. Paragraphs 2 and 3 are undoubtedly no related to section 94 (1). Under paragraph 2 a Court may issue a search warrant where the document or thing is not known to the Court to be in the possession of any person ; if it is known to be in the possession of any person, paragraph 2 cannot be resorted to. Again, if the interpreta tion of the first paragraph that a search warrant cannot issue for a thin or document in the possession of a person accused be correct, issue of general warrant under the third paragraph which quay authorise the search of a place occupied by :he accused or to which be had access would in substance amount to circumventing the restriction implicit in paragraph 1.

Nature of the power reserve to investigating officer by section 165 of the Code of Criminal Procedure must also be considered.

Section 94 (1) authorises a Police Officer to pass a written order for the production of any document or thing from any person in whose possession or power the document or thing is believed to be. If section 94 (1) doe not extend to the issue of an order against an accused person by a Police Officer, would the Police Officer Incharge of the investigation, be entitled to search for a thing or document in any place occupied by the accused or to which he has access for such document or thing To assume that the Police Officer Incharge of the investigation may in the course of investiga tion exercise powers which cannot be exercised when the Court issues search warrant would be wholly illogical. To deny to the investigating officer the power to search for a document or thing in the possession of person accused is to make the investigation in many cases a farce. Again, if it be held that a Court has under the third paragraph of section 96 (1; power to issue a general search warrant, exercise of the power would make a violent infringement of the protection against self‑incrimination, a understood in the United Kingdom, because the Courts in that country frowned upon the issue of a general warrant for search of a document o thing.

12. This Court has already held (P I. D 1971 Lah. 678) that a search warrant can be issued to an accused person in a case. I do not find any reason either to differently construe the word "persons" used in sections 94 and 96 of the Code‑ of Criminal Procedure or to dissent from the view taken by this Court in the above‑noted case. It would be seen that the minority view taken in A 1 R 1965 S C 1251, is in line with the view of this Court. I need not consider the other Indian cases cited before me.

13. The result is that this revision petition fails and is dismissed accordingly. The order of the learned trial Magistrate dated 12th July, 1978 calling upon the petitioner to produce the documents, is accordingly upheld.

Petition dismissed.

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