Wajid allowed to record statement, decision on objections later

ISLAMABAD: On question that to what extent Wajid Zia can refer to joint investigation team (JIT) report, an accountability court on Wednesday issued a written order, allowing him to record evidence, but said the court would later decide on the objections raised regarding admissibility.

The accountability court said the contention that the certain portion of the Wajid’s statement was hearsay or he had referred to a statement under Section 161 of either accused or prosecution witness could only be resolved after recording of his statement in view of the material on file and relevant law. All the objections, if raised, would be disposed of after recording the statement, it said and added the statement to the extent of fact in issue and relevant facts would be considered.

The court also commented on the frequent objections raised by the defence counsel, which, it said, were causing delay in recording of the statements.

Nawaz Sharif, Maryam Nawaz and Captain (retd) Safdar through their counsel Khawaja Haris had submitted that Wajid could only record his statement in the case with respect to the material in the shape of documents collected by him during course of investigation. They argued that the defence had a right to object over the admissibility of documents.

The application said Wajid could not be allowed to make any deposition pertaining to any opinion formulated on the basis of the material/document which impinged on the innocence or guiltiness of the accused.

In response to this contention, the court in its order noted, “It is clarified here opinion of prosecution witness is not binding on the court even if recorded in his statement. Appreciation of evidence is a job of the court and the court cannot abdicate its power and jurisdiction.”

The Sharif family in the application said the JIT report could be categorised in three distinct parts – the material in the form of documents collected by the JIT as evidence in the case, the statements of various persons and the opinion formed or inference drawn on the basis of the material collected and statements recorded during the course of investigation. “Under Qanoon-e-Shahadat only opinion is acceptable that comes from an expert,” it was argued.

According to the application, certain questions arose during the testimony of Wajid regarding the admissibility of some portions of the JIT report he wished to bring on record. The job of an investigation officer is only to collect the evidence and place it before the court and the report of investigation officer/agency is not admissible under the law. When a specific charge has been framed against the accused, no evidence extraneous to the charge can be allowed to bring on record.

The accountability court in its Wednesday’s order said the JIT was formed to answer 13 questions posed by the apex Supreme Court regarding acquisition of resources to acquire the properties. The JIT then collected evidence within and outside the country and also acquired assistance of foreign country firms and written letters to different countries for mutual legal assistance, it added.

Nawaz’s counsel had contended that the JIT report was just like a police report, but the court said the probe team was formed to answer the questions posed by the Supreme Court and the report could not be termed as a document under Section 173 of the Criminal Procedure Code (CrPC) in sensu stricto.

“No doubt it is settled law that the report 173 CrPC is inadmissible in evidence. The trial court appreciate the same if supported by some admissible/ material / evidence because the court has to see the material and cannot decide the case upon any opinion of police officer. It is also an established law that opinion of investigation officer about the guilt or innocence of accused person is inadmissible in evidence,” the court said.

The order further says, “There should be no ambiguity in the mind of applicant/accused that material collected by JIT shall not be appraised according to the principle of law of evidence and opinion of prosecution witness shall be acted upon.”

The court said, “While recording of the statement, the defence counsel used to say it is opinion or hearsay. This objection might be correct but it causes delay in recording the statement. Moreover no hard and fast rule can be made about the admissibility, relevancy, [and] oral statement of the investigation officer to say certain portion is his opinion before recording his entire statement. If his oral statement is mere opinion based on his subjective thinking, it shall certainly be discarded from the evidence, thus the entire statement shall be recorded and then the objections raised shall be disposed of.”

According to the court, the statements of prosecution witnesses/ accused were recorded by the JIT under Section 161 of CrPC.

About the contention that the prosecution witness cannot be allowed to depose with respect to the statement of any person, which is not arrayed as an accused nor cited as witness, is concerned, the court said there were many exceptions to rule against hearsay.

“Certain articles of Qanoon-e-Shahadat as article 45, 46, 49 and 50 can be referred to here. Similarly admission made before police officer is admissible under certain conditions; therefore, a sweeping direction cannot be passed in present case which is complicated one.” Meanwhile, Wajid will continue with recording his statement on Thursday.