SHC orders state to provide video to defence: Daniel Pearl case
KARACHI- The Sindh High Court upheld on Tuesday the order of an ATC judge, Hyderabad, for providing the video cassette showing Daniel Pearl’s killing to the defence.
Disposing of the criminal revision application of the state through a 32- page judgment, a division bench, comprising Justice S. Ahmed Sarwana and Justice Mujeebullah Siddiqui, however directed the accused not to make it available to anyone for showing on TV or website.
The direction were spelt out to allay the apprehensions of the AG. This observation has been made in view of the offer of the AG that the video cassette has already been shown to the defence before examination of the prosecution witness No 12, and he is further prepared to provide all facilities to the defence to lead evidence that the video cassette is fake and that he is opposing the furnishing of a certified copy of the video cassette to the defence, on account of potential risk of the same being put on any website, giving the impression that it is being displayed/exhibited under the authority of a judicial order.
The court also declined the advocate-general (AG) Sindh’s request for staying operation of the order for four days for enabling him to have recourse to the Supreme Court.
The AG, Raja Qureshi, had moved a criminal revision application for setting aside the order dated May 29 of the trial judge for providing the video to the accused’s counsel.
Besides the principal accused, Ahmed Umer Saeed Shaikh, Shaikh Mohammad Adil, Syed Salman Saqib and Fahad Nasim, who are facing trial in Hyderabad Central Jail, were respondents in the application.
The AG had contended that the contents of the video cassette were extremely sensitive, and therefore it was neither in the interest of the prosecution nor the defence to supply its copy to the defence and the national interest required the withholding of release of the video cassette. It should not be viewed by the public at large nationally and internationally, which was likely in the event of release of the video cassette to the defence, he had contended.
The viewing of the video reflecting and slaughtering of Pearl would incite acts of terrorism internationally and could result in massacre of Muslims and religious sects, nationally and internationally.
He was also opposed to providing the video to the defence because it was “likely to incite hatred and contempt on religious, sectarian, or ethnic basis, to stir up violence and interned disturbance or is likely to affect the external affairs of Pakistan.”
Mr Qureshi had contended that the said, “video is not a document but a crime article, and therefore it cannot be given to the accused.” He had cited various law points in support of his contention.
Counsel for the accused, Abdul Waheed Katpar, who was assisted by Mohsin Imam, had contended that the said video had been produced as a piece of evidence against the accused. He referred to article 2 (b) of the Qanoon-i- Shahadat and said the video was not a weapon.
“It is their (prosecution) case that the video is a piece of evidence, therefore they are bound to give it to us,” said Mr Katpar, adding “It is my right.”
Justice Siddiqui agreed with Mr Katpar’s contention and held that since the entitlement of an affected person under section 548 of Criminal Procedure Code (CrPC) was not confined to a document, the entire argument directed on the point that the video cassette was not a document but a crime article, therefore the respondents were not entitled to a certified copy of the video cassette, was totally misplaced. Even otherwise, the video cassette fell within the purview of document for the reason that the definitions of document contained in section 29 of Pakistan Panel Code (PPC) and article 2 (b) of the Qanoon-i-Shahadat Order of 1984, left no doubt that the video cassette squarely fell within the purview of “matter expressed or described upon any substance by means of letters, figures or marks.”
Justice Siddiqui, who authored the judgment, was of the opinion that the charges against the respondents if proved might entail the awarding of death sentence, therefore they were entitled to plead that no action detrimental to their life should be taken except in accordance with the law, and if in the process they were entitled to obtaining a certified copy of the video cassette, which was the most important piece of evidence produced by the prosecution, it was their inalienable right to receive a certified copy of the video cassette.
He observed that if a crime had been committed in any country and the state had performed everything within its competence to bring the culprits to justice, then there was no question of causing any dent to the international relations of the state, with Muslims countries of Asia, Africa and Latin America, or any other state in the world.
To say the least, he observed, in while dealing with article 40 of the constitution that it was unfortunate that by creating sensation and blowing up the issues out of proportion, out of panic or for any other reason, unnecessary pressure was being applied on the subordinate courts. The courts should always be allowed to perform their duty in absolutely free atmosphere and without any direct or indirect pressure tactics.
With regard to the contention that the release of the cassette shall lead to the massacre of Muslims and give wrong message to the world at large because there is a potential risk of its being put on website, he held that it “appears to be absolutely unfounded.”
There was substance in the contention of advocates for the respondents that the video cassette was on display round the clock on a number of websites and it had not created any furor, horror, fear, sense of insecurity, sectarian hatred or anything of the sort, he observed.
The contention of AG that the display of authenticated and certified copy shall lead to the results apprehended by him, did not impress him as the viewers of a film on any TV channel or website never bothered whether it was certified or uncertified, authenticated or unauthenticated.
“The sense of insecurity, sectarian hatred, furor, horror fear and all such other effects are the creation of emotions and the emotions of the viewers do not bother for the reasons such as certified or uncertified version of a document,” he observed.
He was also of the view that when judicial proceedings were in progress in a court of law, then none of the parties or any other person should resort to media trial or to any act which might charge the atmosphere unnecessarily, so that the court was provided with absolutely cool, and congenial environment for deciding the issues before it, with absolute impartiality and independence by an uninfluenced and unaffected mind.
“Both the parties are therefore directed not to release or display/exhibit the authorized/ authenticated/certified copy of the video cassette or its copy on any TV channel, website or in any other manner for public display or publicity. The authenticated/certified copy of the video cassette was not to be supplied by any party to any person in a manner that it was put to public display through any person directly or indirectly,” he held.
He also clarified that “if after this direction the video cassette is displayed by any person and the authorities competent are of the view that any such display amounts to commission of offence under section 8 (c) of the AT Act, 1997, the authorities concerned shall be at liberty to initiate proceedings in accordance with the law.”
Source: Dawn
Date:6/12/2002
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