2017

RECORDING STATEMENTS OF MAGISTRATES THROUGH MODERN DEVICES/MEDIUM: WHETHER A MOVE TOWARDS ESTABLISHING E-COURTS?

By:
ZEESHAN MANZOOR[1]
Assistant Sessions Judge
Karachi West

1. Introduction. In recent days, there floated on whatsapp a letter from The Member Inspection Team, Hon’ble Lahore High Court as on behalf of the Hon’ble Chief Justice of the Court written to the Judges of District and Special Courts of Punjab directing all the courts in Punjab “to record statements of Magistrates (posted at other stations) through modern devices/mediums, i.e. video link through skype, imo etc, to save public time and exchequer unless the circumstances require otherwise.” The said letter addressed the issue in wake of summoning of Magistrates by the courts to appear as witness to testify various executive nature like duties performed by them, such as identification parade, inquest proceedings, exhumation proceedings, raid proceedings, recording of statements u/s 164 Cr.P.C. etc., in trial of the concerned cases. A concern was shown for the situations when the concerned Magistrates stand transferred to some other station and they have to avail station leave for the said purpose; for which public time and exchequer suffer. The decision of the Hon’ble Lahore High Court not only deserves higher degree of applause and warm welcome but also, it invites the following by other provinces. With no hesitation in my mind, I have derived the topic of this article as out of the subject of the said letter.

2. It would not be desirable to extensively discuss the executive nature of proceedings or duties referred above as such is certainly beyond the scope of paper in hand yet I would give these a slight touch for purpose of reference. With this whole in mind, I want to focus on the concept and feasibility of Electronic courts in Pakistan while taking lead of the concept from the directions (supra) for use of modern devices for recording of evidence of the Magistrates and its legal implications. This is the avowed purpose of the paper in hand.

3. Magistrates seek sanction for recording confession; admission of guilt made by a person charged with an offence; and statements of witnesses during course of investigation and prior to commencement of trial (before the charge has been framed and trial is thereby begun) or inquiry by the Court, from provisions laid down under section 164, Code of Criminal Procedure, 1898, Cr.P.C. hereinafter and before mentioned). This appears in wake of mistrust over police, confession before whom loses sanctity in terms of Articles 38 and 39 of the Qanun e Shahadat Order, 1984. Besides, Rules 25.27 to 25.29 of Police Rules, 1934 deal with confessions and statements recorded under section 164, Cr.P.C. Procedure for this is contained in the sections 164 read with 364, Cr.P.C. Non compliance of the provisions of these sections bring the case within ambit of section 533, Cr.P.C. creating doubt as to whether the statements were correctly recorded and in accordance with law. It is here only, where the Magistrates are called upon to give evidence to the effect that such statement was recorded. Notably, Article 91 of the Qanun e Shahadat, 1984 provides that when any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Magistrate, the Court shall presume that the document is genuine; that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it are true and that such evidence, statement or confession was duly taken. The combined effect of sections 164 and 533 Cr.P.C. and Article 91 of the Qanun e Shahadat, 1984 is that when a certificate issued under section 164 Cr.P.C. clearly shows that the provisions of section 164 Cr.P.C. have duly been complied with, it is not necessary to call the Magistrate who recorded confession as a witness for the purpose of proving it, and the confession should be taken on record.[2] But no presumption can arise under Article 91 of the Qanun e Shahadat, 1984, if the document is not signed by the Judge or the Magistrate.

4. Likewise, Magistrates also supervise identification parades of persons as well as properties: the difference being that in the case of the former, the identification is of one stranger by another and in the case of the latter, it is invariably by the owner or by those who had been familiar with those prior to the crime, such as stolen property. Identification of accused person is conducted in cases where a witness gets a momentary glimpse of the accused and he claims that he would be able to identify the accused. The objective is to satisfy that the investigating authorities, before sending the case for trial to Court, that the person arrested but not previously known to the witness is one of those who committed the crime, and, to satisfy the Court that the accused is the real offender and is genuinely connected with the crime, alleged. There is no requirement of law to conduct identification parades and its evidentiary value is subject to corroboration of other evidence. There is no express provision for the conducting of identification parades; however, inference for its sanction is drawn from the reading of Article 22, Qanun e Shahadat, 1984. Technically speaking, any person can conduct test of identification parade but Magistrates are preferred to supervise the proceedings. Chapter V-C of Federal Capital and Sindh Criminal Courts Circulars deal with the issue. Rules 26.7, 26.32, 26.34, and 27.25 are the relevant provisions of Police Rules, 1934.

5. Magistrates also conduct raids under directions from Sessions Judges vide section 491 Cr.P.C. Such raids may be for various purposes, such as illegal / unlawful detentions of innocent persons who fall prey to police excesses. Magistrates are also assigned to conduct raids on business offices or government offices in terms of anti-corruption or such like activities. But, practically speaking, Magistrates are hardly called upon for evidence in such like matters yet it is observed that in cases of severity, they are summoned.

6. Then we have autopsy/post mortem and inquest/exhumation proceedings for the Magistrates to supervise. This is very serious piece of business and an important segment of forensic investigations. In cases where officer in charge of a police station or some other police officer specially empowered in this behalf by the Provincial Government receives an information that a person has committed suicide or has been killed or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall be required to immediately report to the Magistrate concerned placing request for holding inquest. Sections 174, 175 and 176 of Cr.P.C. and Rules 25.37, 25.34, 25.39 and 25.47 of Police Rules, 1934 are the relevant provisions.

7. The argument adopted by the concerned authorities in the letter referred above was that by taking into account the use of information technology, the public time and exchequer can be saved. I find myself in complete agreement with the argument as Magistrates have to preside their own courts (naturally) even on the dates, they are summoned and as a result, they leave their courts and travel for other stations for giving evidence leaving behind the litigants of their courts suffer and so also letting the cases adjourned. Not to forget, it is seldom that Magistrates evidence is recorded on the first very date they are summoned – naturally because of uncontrolled situations. We can’t ignore the natural events when, for instance, parties to the case or their counsels are absent for whatsoever reason; or, when all are present except the accused themselves who could not be produced by Police or Jail authorities as witnesses cannot testify in absence of accused as per provisions laid down under Cr.P.C.; or, if the Presiding Judge happens to go on leave or is unavailable for whatever reasons; or, of course, when we are blessed with calls for suspension of work for various genuine reasons from respectable Bars on the said date. This whole creates discomfort to the Magistrates as well as to the litigants of his own court; while adding that in high profile cases, there are concerns of threats for Magistrates, Police, litigants or even Judges as well.

8. While welcoming the decision, I would humbly move ahead towards concept of Electronic Courts (E-Courts). An E-court is a location in which legal matters are decided provided a Judge is present and has all well-developed technical infra structure allowing court proceedings to function smoothly while creating room for presentation of evidence and filing of judicial records or hearing testimony remotely. It essentially is a paperless court where all proceedings take place in a digital format.

9. I had opportunity to visit the city of Riyadh, Kingdom of Saudi Arabia (KSA) in December, 2015 on account of training programme of Judges. There, we were led for visit to the various courts of all stages of the KSA and we had been briefed about working there. As I recall, the greatest pride that they had persistently been expressing was that their courts had been digitalized and this fact was reiterated at all forums during briefings. Naturally, it has positive output.

10. India began with the concept on the basis of the ‘National Policy and Action Plan for implementation of information and Communicating Technology (ICT) in the Indian Judiciary-2005’ as submitted by E-Committee (Supreme Court of India) aiming at transformation of the Indian Judiciary by ICT. Since then, they have been working over it while improving each passing year.

11. The idea is not totally new for this country even. During the proceedings of Memogate Commission in 2012, statements of Mansoor Ijaz and Hussain Haqani were recorded through video link. In 2013, the Hon’ble Supreme Court of Pakistan while hearing a rape case directed that where possible, technology could be used to save from delayed justice. In 2016, an accountability court in Islamabad was converted into a full-fledged E-Court aiming at securing trials of hardened criminals, ensuring the protection of witnesses and expedited disposals. The performance was amazing. The Dawn reported that in just one month, the accountability Court disposed of a Modaraba case in just twenty days while recording testimonies of twenty three witnesses via skype.[3] These all went success stories. By this, I actually intend to argue as to why the recording of evidence should not be extended to usual proceedings and after all, why it should be restrained to recording of statements of Magistrates alone.

12. Judiciary of the Province of Sindh claims to have best Case Flow Management System (CFMS) and as judicial officers serving the province, we have really experienced its efficacy. The system however is court working focused. The system gives online case diaries, output and end result of cases and judgments or orders the Judges pass. Such judgments and orders could be received through email by the lawyers who contest the same if they provide their email addresses to the Information Technology (IT) branch of the Hon’ble High Court of Sindh. Urgent correspondence between the Hon’ble High Court and the District Judiciary is usually made through technology by use of emails etc. This has made the procedure so easy and feasible that I wonder how fruitful it could be if the scope is extended to the use of technology for trials as well – after all why only case management, why not trial management as well? For instance, if the pleadings are submitted / filed in electronic form, would it not be easy to keep the record more accurate and to make proper use of such record while deciding the cases with least physical labour.

13. Naturally, every innovation has both merits and demerits. For positive reasons, we may foresee that it is cost effective – production of accused by jail authorities or the witnesses coming from various quarters become too costly; entire information pertaining to a particular case would be available online and hence, easily accessible while with least possibility of the loss of any data; learned lawyers could be able to file their cases from offices or even homes saving themselves from all physical difficulties; Judges would be in position to better manage their case load; it would be a procedure saving from needless adjournments; and, finally, a secure provision for witnesses – needless to say, the ever rising ratio of acquittals and lesser convictions in the cases of prosecution has been result more often of fear among witnesses as courts can act only upon evidence and material placed before them and the Hon’ble Supreme Court of Pakistan in Watan Party and other versus the Federation of Pakistan vide PLD 2011 Supreme Court 997 categorically stated that Courts cannot be blamed if the executive/police fail in their duty and that legislature is to provide for processes for protection of witnesses.

14. One may argue that the concept has demerits. It apparently seems a costly program for which huge funds would be required and that there is lack of technical expertise available with Courts and so also there is a chance of hacking. Quite technically, it may also be argued that Courts might find it difficult to control the discourse during recording of evidence of the witnesses and further, that it could be difficult for Judges to determine demeanor of the witnesses which is an important piece of evidentiary process as to see whether the witness is free from coercion or duress. There is no disagreement with regard to this sort of criticism yet I am of firm view that the world of internet has travelled across and improved so fast that it won’t be a major issue to judge the demeanor of a witness while recording his evidence through technology. There are soft wares available through which skype video calls may be saved and could be reduced to compact discs (CDs) which may later be attached with the files and sent to the Appellate Courts if desired.

15. From pure legal point of view, in appropriate cases, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques, under mandate of Article 164, Qanun e Shahadat, 1984. And under Electronic Transaction Ordinance, 2002, electronic evidence via emails is made admissible in Courts of law.

16. It would be profitable to view the concept from far reaching effects and the technology may be sometimes overruled and physical process may be adopted if the Courts deems fit for the best reasons as there would not be any embargo to resort to physical process in situations where the Court is not satisfied by online proceedings.

17. Admittedly, we live in a scientific age of information technology. Advancement in technology always poses new challenges and threats. The internet is a world of technological environment in itself. The records that are electronically saved have permanent nature and are not expected to be lost. It shall give way to transparency and accountability in the judicial system in terms of modern reforms. In preceding paragraphs, it is discussed as to how this concept though in a narrow manner has been welcomed by the Hon’ble Supreme Court of Pakistan and the Hon’ble Lahore High Court and there is no cavil at saying no failure has been met. As far as complications with regard to lack of expertise in courts or lack of funds to make it reality is concerned, it is suggested that State machinery can be moved to provide for these in the best interest and larger benefit of not only courts and litigants but the State itself which is a very serious stake holder of judicial proceedings.

18. It is indisputable that establishment of E-Courts in the country itself shall be no less a revolution and revolutions need professionals; and, that’s what our focus should be on. The major impediment perturbing most of us might be difficulty of experimentation but it has to be done if we have decided to improve the things. English schools teach their children the PMI system asking them to scan for the Plus points, then for the Minus points and finally for the Interesting points – a simple, deliberate operation which is easily carried out. This PMI system improves perceptions and that’s what we are required to do – weighing and comparing plus points with minus points. And this shall be done in order to design the way forward through constructive thinking and not mere positive thinking; positive thinking is simply being optimistic about things while constructive thinking seeks to improve the things. Things may be difficult yet not impossible.

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[1]. Author is a serving Judicial Officer at Karachi, Sindh. He has strong academic background having passed various examinations – academic as well as professional – with flying colors. He is a regular writer and to his credit, there are a good number of legal research articles having been published in reputed law journals of the country. Besides, he has exposure of writing as many as three different law related books.