Syed IKRAM GARDEZI vs THE STATE And Another
This appeal arose from a criminal complaint under Sections 406 and 408 of the Pakistan Penal Code 1860 and Section 282 of the Companies Act, wherein the trial court ordered the accused to produce certain documents under Section 94 of the Code of Criminal Procedure 1898. The accused challenged this order, invoking constitutional protections against self-incrimination under Article 13 of the Constitution of Pakistan 1973 and various provisions of the Code of Criminal Procedure 1898, arguing that an accused cannot be compelled to produce incriminating evidence. The Supreme Court, however, found it unnecessary to adjudicate the constitutional and legal questions regarding the scope of Section 94 of the Code of Criminal Procedure 1898 against an accused person. The matter was resolved when the appellant voluntarily agreed to produce the majority of the requested documents. Regarding the remaining documents, the appellant stated they were not in his possession. The Court disposed of the appeal by recording the appellant's undertaking and noting that the respondent could seek to produce secondary evidence for the missing documents in accordance with the law.
- Can an accused person be compelled to produce documents that might incriminate them in a pending criminal case?
- What is the procedure when an accused claims that requested documents are not in their possession?
- Is secondary evidence admissible when the primary documents are not available with the accused?
- Section 406, Pakistan Penal Code 1860
- Section 408, Pakistan Penal Code 1860
- Section 282, Companies Act
- Section 94, Code of Criminal Procedure 1898
- Section 174, Code of Criminal Procedure 1898
- Section 175, Code of Criminal Procedure 1898
- Section 340(2)(a), Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
- Section 343, Code of Criminal Procedure 1898
- Article 13, Constitution of Pakistan 1973
M. BURHANUDDIN KHAN, J.-- Leave was granted by this Court per order, dated 15-3-1980 to consider whether an accused person can be directed to produce documents which would incriminate him in a case pending against him before a Court.
2. This appeal is directed against an interim order, dated 12-7-1978 passed by M.I.C. In a complaint case under section 406/408, P.P.C. And section 282 of the Companies Act. Revision filed against the said order was dismissed by a learned Judge of the Lahore High Court vide order, dated 16-5-1979.
3. A complaint under section 406/408, P.P.C. Read with section 282 of the Companies Act was filed by respondent No.2. Alongwith it she filed to applications under section 94, Cr.P.C. Seeking an order against the accused /appellant for production of documents and record detailed in the said application. The other application was filed seeking production of the complete file containing returns, resolutions, applications, Memorandum of Articles of Association etc. From the Office of the Registrar Joint Stock Companies, Lahore. The former application mentioned the following documents:-
(1) Memorandum and Articles of Association of Rahim Jan & Company (Unlimited) Cortificate of incorporation.
(2) Form E of Rahim Jan & Company (Unlimited), dated 31-8-1969.
(3)Form XII (false declaration made on 15-2-1974).
(4) Special Resolution of Form VIII (showing that the name of Rahim Jan & Company (Unlimited) has been changed to 'Gardezi & Associates'.
(6) Fresh Memorandum and Articles of Association in the name of Gardezi & Associates.
(7) Register of Members.
(8) Annual list of Members Register.
(9) Minute Book of General Meetings and Directors' Meetings.
(10) Register of Directors and Managers and Managing Agents.
(11) Books of account.
(12)Transfer Deed and Register of Transfer of shares pertaining to both Rahim Jan and Company (Unlimited) and the changed name 'Gardezi and Associates'.
4. Summon was issued by the trial Court to the appellant under section 94, Cr.P.C. For the production of documents mentioned in the former list to which he raised numerous legal and factual objections seeking protection inter alia under sections 174, 175, 340(2)(a) and 342, 343, Cr.P.C. And Article 13 of the Constitution, 1973. The main submission of Raja Muhammad Anwar the learned counsel for the appellant is that one of the fundamental canons of the system of criminal jurisprudence has been that the accused should not be compelled to incriminate himself. The Legislature was aware of the above fundamental canon of criminal jurisprudence because in various sections (ibid) of the Criminal Procedure Code it gives effect to it. He further contended that in view of this background the Legislature, if it were intended to make section 94 applicable to an accused person, would have said so in specific words.
5. We think it not necessary to go into the questions raised by the learned counsel for the appellant.
He has agreed to produce before the A trial Court documents mentioned in the first application at S. Nos.l tol A. The Registrar, Joint Stock Companies shall make available before the trial Court the documents asked for from him. The accused appellant has made statement that rest of the documents is not available with him nor he ever had them in his possession. This being a candid statement the respondent may seek permission of the trial Court to produce secondary evidence permissible under the law. With this observa--tion, this appeal is disposed of.
M. I Order acordingly.