GOVERNMENT OF SINDH through Advocate General, Sindh Applicant versus FARAD NASEEM and 3 others

Respondents

Citation: 2002 PCRLJ 1765

JUDGMENT

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.??? This revision application under sections 435, 439 and 461?A, Cr.P.C.
is directed against the order, dated 28?5?2002, by the learned Judge, Anti?Terrorism Court, Hyderabad and Mirpurkhas
Divisions, at Hyderabad.

2. Briefly stated the relevant facts giving rise to this revision application, are that the respondents are facing trial under Anti?
Terrorism Act, 1997, on the charge of committing offences punishable under sections 365?A, 368, 302, 109, 201 and 120?
A/34, P.P.C. read with sections 7 and 8 of the Anti?Terrorism Act, 1997. The prosecution case is that the respondents
abducted deceased Daniel Pearl, an American Journalist and subsequently, committed his murder. During the course of trial,
in Special Case No.26 of 2002, the prosecution produced a video cassette containing a film showing slaughtering of deceased
Daniel Pearl with knife, whereby his neck was shown to have been cut through and through. This video cassette was received
by an F.B.I. agent at the American Consulate. The cassette was admitted in evidence and was brought on record of the
proceedings. The original was returned to F.B.I. and an authenticated copy was made a part of the case proceedings.

3. The learned Advocate appearing for the respondents submitted an application on 15?5?2002, stating that the video cassette
has been produced by prosecution witness No. 12 and has been brought on record as Article 1. It was further averred in the
application that the video cassette has been displayed in the presence of prosecution, the defence and other persons in the
Office of Superintendent Jail, Hyderabad, where the case is proceeding. It was contended in the application that the defence
intends to establish that the said video cassette is fake and is not genuine. It was stated in the application that the said video
cassette can be prepared, of any person, who is alive. It was prayed that a certified copy of the video cassette available on the
record of the Court be supplied to the accused persons. The learned Advocates for the accused/respondents stated in the
application that the prosecution witness who has produced the video cassette in Court has prepared 4 copies from the original
cassette and that the CNN Reporter has already seen the video cassette and has reported the same as well. The copies of the
said video cassette have already been supplied to the Government of Sindh. Government of Pakistan and the Government of
U.S.A. According to them it was required by the accused/respondents for the purpose of defending the charge.

4. The learned trial Court heard Mr. Rai Bashir Ahmed, a learned defence counsel, as well as Mr. Raja Qureshi, learned
Advocate-­General, Sindh. The learned Advocate?General, Sindh, opposed the grant of application for the .reason that if the
copy of the video cassette is given to the defence side, there will be a massacre of Muslims in the world.

5. The learned trial Court after hearing Advocate for the parties held that the video cassette has been exhibited as Article 1. It
has been produced by P. W. John Moligan, and has become part of the proceedings which forms basis of the prosecution
charge against the accused persons. The learned trial Judge further held that he deemed it fit to grant the copy of cassette for
proper adjudication of the case. He, therefore, allowed the application and directed the supply of the certified copy of the
cassette on payment of usual cost.

6. Being aggrieved with the above order, the learned Advocate-­General has preferred this revision application. It is averted in
the memo. of revision petition that the application for certified copy of video cassette was submitted under sections 265?
C/548, Cr.P.C. read with Article 87 of the Qanun?e?Shahadat Order, 1984, on the premises that it was a case property and,
therefore, it should be made available to defence. It is further contended in the revision petition that according to defence the
video cassette has been prepared through modern devices, therefore, it is a document and thus, it should be provided to the
accused persons. According to memo. of revision petition three earlier applications in this behalf ,were rejected and there was
no ,fresh ground for granting the application. It is further stated in the memo. of revision that the accused persons and the
defence counsel had agreed to view the video cassette in Court for the purpose of cross?examining P.W.12, Mr. John
Moligan, through whom the video cassette was brought on record and after watching the video cassette, the prosecution
witness No. 12, was extensively cross?examined by the defence.
7. The following grounds have been urged in support of the revision application and assailing the impugned order:??

(1) The video cassette is being sought at belated stage when the prosecution witnesses have already been subjected to cross-­‐
examination.

(2) The contents of the video cassette are extremely sensitive and, therefore, it is neither in the interest of prosecution nor
defence to supply the copy thereof to the defence and the national interest requires the withholding of release of the video
cassette. 'It should not be viewed by the public at large nationally and internationally, which is likely, in the event of release
of the video cassette to the defence.

(3) The contents of the video reflect a gruesome murder by way of slaughtering which will create fear in the mind of the
public at large and if viewed by the public it is likely to create a sense of fear and insecurity in the general public nationally
and internationally. The viewing of the video reflecting the slaughtering of deceased would be instrumental to acts of
terrorism internationally and could result in massacre of Muslims and religious sects nationally and internationally.

(4) The seeking of video recording and grant of the same is likely to incite hatred and contempt on religious, sectarian, or
ethnic basis, to stir up violence and is likely to affect the external affairs of Pakistan. The release of the video cassette is likely
to affect the daily business and disturb civil life; if it is exhibited from any channel of electronic media.

8. We have heard Mr. Raja Qureshi, learned Advocate?General, for the applicant/State and Messrs Abdul Waheed Katpar and
Rai Bashir Ahmed, learned Advocate for the respondents.

9. The first contention raised by the learned Advocate?General is, that, video cassette is not a document and is a crime article,
therefore, accused persons are not entitled in law to have the certified copy thereof. In this regard he has referred to section
29, P.P.C. and Article 2(1)(b) of Qanun?e?Shahadat Order, 1984, in which, the term document has been defined. These
sections read as follows:??

Section 29, P.P.C. "Document". The word "document" denotes any matter expressed or described upon any substance by
means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as
evidence of that matter.

Explanation 1.??? It is immaterial by what means or upon what substance the letters, figures, or marks are formed, or whether
the evidence is intended for, or may be used in, a Court of justice, or not.

Illustrations.??? A writing expressing the terms of a contract which may be used as evidence of the contract, is a document.

A cheque upon a banker is a document.

A power?of?attorney is a document.

A map or plan which is intended to be used or which may be used as evidence, is a document.

Explanation 2.??? Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage,
shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may
not be actually expressed.

Article 2(l)(b), Qanun?e?Shahadat Order, 1984.

Interpretation.??? (1) In this Order unless there is anything repugnant in the subject or context.

(b) "document" means any matter expressed or described upon any substance by means of letters, figures or marks, or by
more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter.

Illustration.??? A writing is document. Words printed, lithographed or photographed are documents;

A map or plan is a document;

An inscription on a metal plate or stone is a document;

A caricature is a document.
10. He has further submitted that the video cassette is not a document and is a crime article because it contains a film showing
gruesome manner of murder of the deceased and said act is an offence under section 8(c) of the Anti?Terrorism Act, 1997,
and the accused/respondents have been charged with the commission of offence under section 8(c) of the Anti?Terrorism Act
as well. For the sake of convenience the provisions contained in section 8(c) are reproduced below:??

"Section 8. Prohibition of acts intended or likely to stir up sectarian hatred.??? A person who,

(c) distributes or shows or plays a recording of visual images or sounds which are threatening abusive or insulting; shall be
guilty of an offence if???

(i) he intends thereby to stir up sectarian hatred, or

(ii) having regard to all the circumstances, sectarian hatred is likely to be stirred up thereby. "

11. He has further referred to Articles 5 and 40 of the Constitution of Islamic Republic of Pakistan, 1973, which read as
under:??

"5. Loyalty to State and obedience to Constitution and law.??? (1) Loyalty to the State is the basic duty of every citizen.

(2) Obedience to the Constitution and law is the inviolable obligation of every 'citizen wherever he may be and of every other
person for the time being within Pakistan.

Article 40. Strengthening bonds with Muslim world and promoting international peace. The State shall endeavour to preserve
and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the
peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations
among all nations and encourage the settlement of international disputes by peaceful means."

12. The learned Advocate?General has further referred to Article 87 of the Qanun?e?Shahadat Order, 1984, which is
reproduced below:??

"87. Certified copies of public document.??? Every public officer having the custody of a public document which any person
has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor together with a
certificate written at the foot of such copy that it is a true copy of such document or part thereof as the case may be and such
certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed. whenever such
officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies."

13. While concluding his arguments, the learned Advocate?General laid great emphasis on the point that. if video cassette is
released there is a potential risk of being put the same on any web site resulting in public display which is against the national
and international interest of the country. However, he frankly referred to a news item in daily "The News", according to
which the video cassette was already being displayed on web sites in America. The F.B.I. issued a prohibition order
restraining the display of the video cassette. For few days the display of video cassette, on web site, was discontinued but it
was again put on five 'web site channels, The prohibition order issued by the F.B.I. was not obeyed for the reason that it was
against the fundamental rights guaranteed in the Constitution of the United States of America. He, however, submitted that
notwithstanding, the display of video cassette on several web sites, the learned trial Court was not justified in granting the
application for supplying the certified copy of the video cassette, for the reason that so far, unauthorized and unauthenticated
versions of the video cassette are being displayed on the web sites and in the case of release of the certified copy an
impression would be given that it is being shown under the authority of the Court.

14. On the other hand, the learned Advocates for the respondents have vehemently refuted all the contentions raised by the
learned Advocate?General, Mr. Abdul Waheed Katpar, the learned senior counsel appearing for the respondents/accused has
submitted that the learned Advocate?General has referred to the definition of document contained in Article 2(b) of the
Qanun?e?Shahadat Order, 1984, but a bare perusal of this Article shows, that the contention, that video cassette is not a
document is untenable. He has drawn our attention to second illustration, to Article 2(b) of Qanun?e?Shahadat Order, 1984
which says that the words printed, lithographed, or photographed are document. He has maintained that, according to
definition contained in the said Article, and section 29, P.P.C. the document denotes any matter expressed or described upon
any substance by means of letter, figures or marks. He has contended that the video cassette consists of the figures recorded
by modern device on a film and as such it is fully covered within the definition of document.
15. He has further submitted that the accused persons are fully entitled to obtain the certified copy of the video cassette which
has been admittedly brought on record, by virtue of the provisions contained in section 548, Cr.P.C. which reads as under:??

"548. Copies of proceedings.??? If any person affected by a judgment or order passed by a Criminal Court desires to have a
copy of any order or deposition or other part of the record he shall, on applying for such copy, be furnished therewith:

Provided that he pays for the same, unless the Court, for some special reasons thinks fit to furnish it free of cost. "

16. He has further argued that with the release of video cassette, there should be no embarrassment, to the Government, as it
is already in possession of the Government of Sindh, the Government of Pakistan, the Government of U.S.A. and is being
displayed on five web sites. He has further given an undertaking that the defence shall not release the video cassette to any
web site or T.V. Channel and it will be shown to an expert only for the purpose of leading the evidence and establishing that
the video cassette is a fake one.

17. Mr. Rai Bashir Ahmed, learned counsel for the respondents has submitted that the prosecution witness who produced the
video cassette has conceded in cross?examination, that, the modern science has so much developed, that, a fake cassette can
be made similar to the Article 1, produced by the prosecution. The learned counsel has vehemently argued that on legal plane;
the respondents are entitled to obtain the certified copy of the video cassette as admittedly it has been made a part of the
Court proceedings, and all the apprehensions expressed by the learned Advocate?General are absolutely unfounded, because
admittedly the video cassette in question is already being shown round the clock on at least five different web sites, and so
far, no such consequences have followed as apprehended by the learned Advocate?General. The learned counsel was holding
a C.D. in his hand at the time of arguments and stated that a day earlier, one boy handed him over a copy of video cassette
which was now in his hand. He submitted that, it shows that the video cassette is available freely all over the world. However,
the respondents/accused require a certified and authenticated copy of the video cassette so that it may be provided to an
expert for establishing that it is a fake video cassette and no conviction can be recorded on the basis of said video cassette:
During the course of arguments he has stated that the accused persons are not shown in the video cassette and the learned trial
Court has rightly directed for supplying of the certified copy of the video cassette, because the refusal would seriously
prejudice the defence of the accused persons.

18. I have carefully considered the contentions raised by the learned Advocates for the parties. After a very anxious
consideration I am of the opinion that the entire argument of the learned Advocate?General on the point of law is based on the
wrong premise. The averments made in the memo. of revision to the effect that the application for certified copy of video
cassette was submitted by the learned defence counsel under section 265?C and Article 87 of the Qanun?e?Shahadat Order,
1984 as well as under section 548, Cr.P.C. is factually and legally incorrect. A perusal of the application on record shows that
no particular section is cited in the application. In the absence of any particular provision of law, cited by a party, it is the duty
of the Court to examine under which provision of law an application or any other proceedings have been initiated. It has to be
decided on the basis of substance contained in the application or any other pleading. A perusal of the application dated 15?5?
2002 shows that the learned counsel for the respondents has merely submitted that P.W. No. 12, has produced a video
cassette, which has been shown to the prosecution, defence and other persons in the office of Superintendent Jail and it has
been brought on record, which is required to be shown to an expert who shall be examined in defence to establish that the
video cassette is a fake one, therefore, a certified copy be directed to be supplied to the defence. Now, if we peruse section
265?C, Cr.P.C. it speaks of supplying of statement and documents to be accused free of costs before the commencement of
trial. It does not speak of entitlement of a person to obtain certified copy of a document or any part of the record. So far,
Article 87 of the Qanun?e­Shahadat Order, 1984 is concerned, it provides the procedure for supplying the certified copies of
public documents, by the public officer, who is authorized to deliver such copies. It has nothing to do with the right of any
person affected by judgment or order for obtaining the certified copy of an order, deposition etc. The right to obtain a
document, and the procedure, manner and the person authorized to issue the certified copies are absolutely distinct matters.

19. I am of the considered opinion that Mr. Abdul Waheed Katpar, the learned senior defence counsel has rightly submitted
that the accused/respondents are entitled for the certified copy of the video cassette by virtue of the provisions contained in
section 548, Cr.P.C. He has drawn our attention to the contents of section 548, Cr.P.C. A perusal of this section shows that it
does not speak of a document, as such. It says that, "if any person affected by a judgment or order passed by a criminal Court
desires to have a copy of any order or deposition or other part of the record (underlining is mine) he.shall, on applying for
such copy be furnished therewith". According to Mr. Katpar, the video cassette is admittedly a part of the record and
whatsoever, be the status of the matter forming part of the record, a person affected is entitled to be furnished with the copy
thereof. I am persuaded to agree with the submission of Mr. Abdul Waheed Katpar. Since the entitlement of an affected
person under section 548, Cr.P.C. is not confined to a document, therefore, the entire arguments directed on the point that the
video cassette is not a document but is a crime article, therefore, the respondents are not entitled for the certified copy of the
video cassette is totally misplaced. Even otherwise, the video cassette falls within the purview of document for the reason that
the definitions of document contained in section 29 of the Pakistan Penal Code and Article 2(b) of Qanun?e?Shahadat Order,
1984, leave no scintilla of doubt in my mind, that, the video cassette squarely falls within the purview of "matter expressed or
described upon any substance by means of letters, figures or marks". The Explanation 1 to section 29, P.P.C. further supports
this view which says that it is .immaterial by what means or upon what substance, letters, figures or marks are formed.

20. Section 3(16) of the General Clauses Act, 1897, describes document as follows;?? .

"Section 3(16). 'document' shall include any matter written, expressed or described upon any substance by means of letters.
figures or marks, or by more than one of those means which is intended to be used, or which may be used for the purpose of
recording that matter."

21. A perusal of the above section also shows that the definition is inclusive and not conclusive and further it pertains to any
matter written, expressed or described upon any substance by means of letters, figures or marks which is intended to be used
or which may be used for the purpose of recording that matter. The word "matter" has been defined in the Chambers 20th
Century Dictionary (New Edition 1983) as, "that which occupies space, and with which we become acquainted by our bodily
senses". I am, therefore, of the opinion that the video cassette, is a matter expressed through figures or marks and thus falls
within the purview of expression "document" defined in the Pakistan Penal Code, Qanun?e?Shahadat Order, 1984 and the
General Clauses Act, 1897. There can be no two opinions on the point that a still photograph is a document I, therefore, do
not find any reason to exclude the movie film, which is also a photograph, from the purview of document. The contention that
the movie contains such material, the display whereof is an offence under section 8(c), A.T.A., and therefore, it is merely a
crime article and not a document is also untenable. It can be illustrated by an example. If a pamphlet, a banner, a booklet or
an advertisement contains such material, the publication, distribution, display or exhibition whereof is an offence, it may be
treated as a crime article. However, it will not loose its character as a documents and whenever produced in evidence in
Court, it shall be treated as documentary evidence. The illustration can be multiplied, but I do not intend to do it, for the sake
of brevity. I am further supported in my above opinion with the provisions contained in Articles 164 and 2(1)(c) of Qanun?e?
Shahadat Order, 1984, which read as follows:??

"164. Production of evidence that has become available because of modern devices etc.??? In such cases as the Court may
consider appropriate the Court may allow to be produced any evidence that may have become available because of modern
devices or techniques. "

"2. Interpretation (1).??? In this order unless there is anything repugnant in the subject or context?

(c) `evidence' includes???

(i) all statements which the Court permits or requires to be made before It 4witnesses, in relation to matters of fact under
inquiry, such statements are called oral evidence; and

(ii) all documents produced for the inspection of the Court; such documents are called documentary evidence."

22. The attention of learned Advocate?General was drawn to the provisions contained, in Article 164 of Qanun?e?Shahadat
Order, 1984 and he frankly conceded that the video cassette was available because of modern devices and techniques,
therefore, it was produced in evidence by the prosecution, under Article 164 of the Qanun?e?Shahadat Order, 1984. A perusal
of the Article 2(c) above shows, that, the evidence has been subdivided in two categories. In first category, are included all
statements which the Court permits or requires to be made before it by the witnesses in relation to the matter of facts and
inquiry and such statements are called oral evidence. The second category, includes all documents produced for the inspection
of the Court and such documents are called documentary evidence. Thus, every evidence produced before the Court is either
oral evidence or documentary evidence. Applying this test to the II testimony of P.W.12, I find, that his statement made before
the Court falls within the category of oral evidence, and the video cassette produced by him falls within the category of
documentary evidence. It is salutary principle of the interpretation of statutes, that all the provisions in a statute are to be read
together. Applying this principle, when the provisions contained in Article 164 and Article 2(c) of the Qanun?e-­Shahadat
Order, are read together, they lead to the only conclusion that the video cassette produced by the prosecution and brought on
record is a document.

23. Now I will revert back, once again, to the provisions contained in section 548, Cr.P.C. The admitted position is that the
video cassette, a certified copy whereof, has been directed to be supplied to the accused persons by the trial Court forms part
of the record and thus, Mr. Abdul Waheed Katpar, has very rightly argued that the provisions contained in section 548,
Cr.P.C., are mandatory in nature as word "shall" has been used by the Legislature. I am further persuaded to agree with the
submission of Mr. A. Waheed Katpar, that it is the mandatory right of any person affected by a judgment or order passed by
Criminal Court, to have a copy of any order or deposition or other part of the record and no discretion lies with the Court to
refuse the supplying of such copy of the order etc., to the affected person. After coming to the conclusion, that it is a right of
an affected person to obtain certified copy of an order, deposition or other part of the record and it is obligatory on the Court
to furnish the copy, I proceed to examine whether it can be withheld, with reference to the provisions contained in Articles 5
and 40 of the Constitution, which have been referred to by the learned Advocate­-General. Article 5 of the Constitution has
been reproduced in earlier part of this judgment. Sub?Article (2) thereof, clearly states that obedience to the Constitution and
law is the inviolable obligation of every citizen whatsoever may be and of every other person for the time being within
Pakistan. In view of sub?Article (2) of Article 5, I am of the considered view that when the Constitution enjoins upon every
citizen and every other person for the time being within. Pakistan to obey the Constitution and law, and declares it to be
inviolable obligation, then it is requirement of the Constitution, that the mandatory requirement of the law should be obeyed.
I have already shown that the mandatory requirement of law contained in section 548, Cr.P.C. is that an effected person
should be furnished with a certified copy of any part of the record and the video cassette is admittedly a part of the record. I
ant of the opinion that while referring Article 5 of the Constitution, the provisions contained in Article 4 of the Constitution
escaped the notice of learned Advocate?General. The provisions contained in Article 4 of the Constitution are reproduced
below:??

"4. Right of individuals 'to be dealt with in accordance with law etc.??? (1) To enjoy the protection of law and to be treated in
accordance with law is the inalienable right of every citizen. wherever he may be, and of every other person for the time
being within Pakistan.

(2) In particular??

(a) no action detrimental to the life, liberty, body reputation or property of any person shall be taken except in accordance
with law;

(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c) no person shall be compelled to do that which the law does not require him to do. "

24. A perusal of the above Article shows that to enjoy the protection of law and to be treated in accordance with the law is the
inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. Sub?
Article (2) of Article 4 lays emphasis by using the expression "in particular" that no action detrimental to the life, liberty,
body, reputation or property of any person shall be taken except in accordance with the law. Thus, under Article 4 of the
Constitution of the Islamic Republic of Pakistan, the life of the deceased, an American national could not be taken away,
otherwise than in due course of law and if it is established by the prosecution before the trial Court that the respondents are
responsible for taking the life of an innocent American citizen for the time being in Pakistan, then surely they will be dealt
with in accordance with the law. However, at the same time, the respondents have all the rights to defend their case and to
establish that the charge against them is false or the prosecution is not able to establish charge beyond reasonable doubt and
that any piece of evidence produced by the prosecution is not worth reliance or is not genuine or is fake or doubtful, and has
to be excluded from the consideration, for the purpose of awarding any conviction or sentence to them. The charges against
the accused if proved may entail the awarding of death sentence, and therefore, they are entitled for pleading that no action
detrimental to their life should be taken except in accordance with the law, and if in the process they are entitled to obtain the
certified copy of the video cassette, which is the most important piece of evidence produced by the prosecution, it is their
inalienable right to receive the certified copy of the video cassette.

25. Article 4 of the Constitution of Islamic Republic of Pakistan is as comprehensive as the American "due process" clause.
Thus, if any action is taken by any person, authority or agency which is not in accordance with the law then the person
affected by such action or order shall be presumed to be damaged and no citizen or any other person for the time being in
Pakistan can be deprived of this Constitutional guarantee. This Constitutional guarantee provides protection to every "citizen
and any other person for the time being in Pakistan, from any invasion upon his rights in law. Here, I would like to pose a
question, whether a Constitutional guarantee to enjoy the protection of law and to be treated in accordance with the law can
be withheld and a citizen can be deprived of such Constitutional guarantee on any pretext, whatsoever? My reply is in
emphatic No. The answer to above question cannot be given in affirmative without doing violence to the plain language used
in Article 4 of the Constitution. Article 5 of the Constitution, on which the learned Advocate?General has placed reliance is to
be read in totality and in conjunction with Article 4 of the Constitution. Here, the Article 25 of the Constitution, shall also
come into play, which reads as follows:??

"25. Equality of citizens.???(1) All citizens are equal before law and are entitled to equal protection of law.

(2) There shall be no discrimination on the basis of sex alone.

26. I would like to observe that Articles 4 and 5 are contained in Part I of the Constitution, which is introductory. However,
Article 25, is contained in Part II Chapter 1 of the Constitution which contains the fundamental rights. It is specifically
provided in Article 8(2) of the Constitution that, "the State shall not make any law which takes away or abridges the rights so
conferred and any law made in contravention of this clause shall to the extent of such contradiction be void". Thus, if the
State has no authority to make any law which takes away or abridges the rights conferred under the Constitution and Article
25, which has been reproduced above, clearly envisaging equal protection of law, I am not able to agree with the view of
learned Advocate?General, that a fundamental right conferred on a citizen can be abridged under any pretext. The norms laid
down in the nature of fundamental rights as enshrined in the Constitution, preclude any Court or authority from encroaching
upon privilege domain reserved to the citizens. Any interference with such rights, would constitute violation of a serious
nature touching upon the fundamental rights guaranteed to the citizens. I cannot visualize any curtailment of the fundamental
rights of the citizens, which include to be dealt with strictly in accordance with the law, in the name of any another provision
in the Constitution. I totally fail to understand as to how the granting of fundamental right to a citizen or any other person for
the time being in Pakistan, militates against the norms laid down in Article 5, to the effect that loyalty to the State is the basic
duty of every citizen. I am of the firm view that adherence to the rule of law is the greatest loyalty to the State and deviation
from the rule of law is always fraught with the consequences which are detrimental to the larger interests of individuals,
public at large and the State. Thus, adherence to the rule of law is mandatory obligation of all the Courts signifying the
loyalty to the State.

27. So far, the reference to Article 40 is concerned, I would like to observe that, first, it has nothing to do with the question
under consideration, which pertains to the furnishing of certified copy of a video cassette to defence, in a criminal case in
accordance with the mandate of law and the reference to Article 40 of the Constitution would amount to blow up the issue out
of proportion and shall be totally uncalled for. If a crime has been committed in any country and the State has performed
everything within its competence to bring the culprits to justice, then there is no question of causing any dent to the
international relations of the State with Muslim Countries of Asia, Africa and Latin Africa, or any other State in the world. To
say the least, it is unfortunate, that by creating sensation and blowing up the issues out of proportion, out of panic or for any
other reason, unnecessary pressure is being applied on the subordinate Courts. The Courts should always be allowed to
perform their duties in absolutely free atmosphere and without any direct or indirect pressure tactics. Secondly, Article 40 of
the Constitution is contained in Part II Chapter 2, of the Constitution which deals with the "principle of policy" and there can
be no cavil to the proposition that the principle of policy contained in the Constitution cannot be enforced through Courts.
Article 29(3), specifies, that in respect of each year, the President, in relation to the affairs of the Federation, and the
Governor of each Province in relation to the affairs of his Province, shall cause to be prepared and laid before the National
Assembly or, as the case may be, the Provincial Assembly, a report on the observance and implementation of the Principles of
policy, and provision shall be made in the rules of procedure of the National Assembly, or as the case may be, the Provincial
Assembly, for discussion on such report. The Courts are not concerned at all with the principles of policy contained in Part II,
Chapter 2 of the Constitution, of which Article 40 is a part.

28. Lastly, coming to the contention, very vehemently argued, 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 being put the same on web site,
appears to be absolutely unfounded. The learned Advocate?General has himself frankly conceded that the video cassette,
certified copy whereof has been directed to be supplied to the respondents is already on display on at least 5 web sites. There
is substance in the contention of learned Advocates for the respondents that the video cassette is on display round the clock
on a number of web sites and it has not created any furore, horror, fear, sense of insecurity, sectarian hatred or anything of the
sort. Mr. Rai Bashir Ahmed, has stated while addressing arguments that one boy has already provided him with C. D.
Cassette, which shows that it is available with so many persons. The contention of the learned Advocate?General that the
display of authenticated and certified copy shall lead to the results apprehended by him, has not impressed me, as the viewers
of a film on any T.V. Channel or web site never bother if it is certified or uncertified, authenticated or unauthenticated. The
sense of insecurity, sectarian hatred, furore, 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.

29. However, I feel it imperative that notwithstanding, the display of video cassette on several web sites, in America or other
part of the world, which can be seen in Pakistan also, the Court proceedings should neither be politicized or scandalized, nor
any judicial order should be exploited in any manner whatsoever. I am, further of the opinion that when judicial proceedings
are 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
may charge the atmosphere unnecessarily, so that the Court is provided absolutely cool, and congenial environment for
deciding the issues before it, with absolute impartiality and independence by an uninfluenced and unaffected mind. All the
parties should, therefore,, prosecute and defend their case respectively in Court Room only keeping in view the norms of
judicial proceedings. Both the parties are therefore, directed not to release or display/exhibit the
authorized/authenticated/certified copy of video cassette or its copy on any T.V. Channel, web site or in any other manner for
public display or publicity. The authenticated/certified copy of the video cassette is not to be supplied by any party to any
person in a manner that it is put to public display through any person directly or indirectly. I, would further like to clarify 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 Anti­-Terrorism Act, 1997, the authorities concerned shall
be at liberty initiate proceedings in accordance with law. The certified copy of the video cassette directed to be furnished to
the respondents shall be used for the purpose of cross?examining the Investigating Officer, whose statement has not been
recorded so far or any other witness and for furnishing evidence in defence through any expert witness and for the,
process/purposes connected therewith only.

30. I am, of the considered view that these directions are sufficient to alley the apprehensions of the learned Advocate?
General, and he shall feel satisfied with the furnishing of certified copy of the video cassette to the respondents and the
defence counsel, which shall be used for the purpose of defence of the respondents only, and not for any other purpose. This
observation has been made in view of the offer of the learned Advocate?General, that the video cassette has already been
shown to the defence before examination of P.W.12 and he is further prepared to provide all the facilities to the defence to
lead evidence that video cassette is fake and that he is opposing the furnishing of certified copy of video cassette to defence,
on account of potential risk of, the same being put on any web site, giving the impression that it is being displayed/exhibited
under the authority of a judicial order.

31. With the above directions, the impugned order of the learned trial Court which is in consonance with mandatory
requirements of law, is hereby upheld. The revision application stands disposed of accordingly. The interim order issued
earlier stands vacated.