accused can get material from police station | case law on production of CDR from police on start of the case.

زیر نظر ججمنٹ ھائیکورٹ نے ملزم کو سی ڈی آر مہیا کرنے کا حکم دیا۔ ملزم نے ٹرائیل کورٹ میں درخواست دی کہ مجھے سی ڈی آر دیا جاۓ جو کہ پولیس کہ پاس ھے۔ مگر ٹرائیل کورٹ نے درخواست مسترد کر دی کہ اگر ملزم کے خلاف شھادت میں استعمال ھوا سی ڈی آر تو بعد میں مہیا کر دیا جاۓ گا مگر ملزم نے ھائیکورٹ میں رٹ فائیل کر دی۔ اور ھائیکورٹ نے سی ڈی آر ملزم کو مھیا کرنے کا حکم جاری کر دیا۔

Stereo HCJDA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

(JUDICIAL DEPARTMENT)

Criminal Revision No.200 of 2023.

Sabir Hussain

versus

The State, etc.

JUDGMENT

Date of hearing:

13.12.2023

Petitioner by:

Malik Saeed Ejaz, Advocate.

State by:

Mr. Shahid Fareed, Assistant

District Public Prosecutor.

Respondent/complainant by:

Mr. Shabbir Masood Malik,

Advocate.

MUHAMMAD AMJAD RAFIQ, J:- Through this

criminal revision, order dated 08.11.2023 was assailed by the

petitioner whereby the learned Additional Sessions Judge,

Ahmadpur East has declined his request for providing him with copy

of CDR comprising of 117 pages mentioned in the recovery memo

dated 30.11.2020 though was not available on the record. The

learned Judge directed that CDR was collected by one Dilawar

Hussain SI/I.O. who has yet not been examined as witness in the

case, therefore, on his appearance in the dock, the petitioner can well

examine the data of CDR if produced in evidence.

Learned counsel for the petitioner contends that law permits

for provision of relevant documents to the defence upon which the

prosecution case is structured or is expected to be relied upon during

trial, and in this respect, he developed an argument that it is not

necessary that any document disclosure of which is regulated u/s

265-C of Cr.P.C. cannot be summoned before or after that stage. He

has referred case reported as “The STATE versus Chaudhry

MUHAMMAD USMAN” (2023 SCMR 1676) wherein while

Crl. Rev. No.200 of 2023 2

referring section 94 of Cr.P.C., the Supreme Court of Pakistan has

held that Court can summon any document at any stage of inquiry or

trial for its supply to the accused if requested for and is essential for

his defence on any fact in issue in the case. Learned counsel further

submits that when disclosure stage under section 265-C of Cr.P.C.,

is passed and prosecution wants to use any witness who is not cited

in the list, accused still had a chance to get copies of statement of a

witness or related document as per mandate of section 162 of

Cr.P.C.

Learned Assistant District Public Prosecutor on the other

hand has conceded the legal position as referred in case reported as

“The STATE versus Chaudhry MUHAMMAD USMAN” (2023

SCMR 1676). Though learned counsel for the respondent/

complainant has opposed the petition but later conceded that by

providing copy of CDR to the accused/petitioner, prosecution case

wound not be affected in any manner.

Heard. Record perused.

The Supreme Court of Pakistan while dilating upon section

94 of Cr.P.C. has categorically interpreted that the trial Court can

summon any document which is essential for the purpose of an

inquiry or trial and this can also be done on the application of any

party. In this case, CDR of accused persons was collected by

Dilawar Hussain SI/I.O. through recovery memo dated 30.11.2020

available in the police but such CDR and a recovery memo were not

appended with the report under section 173 of Cr.P.C. It is expected

that this evidence would be used against the accused if unfavourable

to him; therefore, he cannot be embarrassed with surprise evidence

without giving him time and opportunity to prepare his defence on

this evidence. Due process as guaranteed under Article 10-A of the

Constitution of the Islamic Republic of Pakistan, 1973 requires that

all the processes supplemented by the legal provisions must be

followed by providing a fair opportunity to the accused.

6. It has further been noticed that once a party calls a document

after giving notice to the other for its production which is in th

Crl. Rev. No.200 of 2023 3

possession of other party and if such party refuses to produce the

same, then document cannot be used as evidence later in the process

except with the consent of party or the Court, and notice to other

party of course can be a situation when an application before the

Court is filed for summoning of such document. Article 159 & 160

of Qanun-e-Shahadat Order, 1984 are referred in this respect as

under:

159. Giving, as evidence, of document called for and produced on

notice: When a party calls for a document which he has given the other

party notice to produce, and such document is produced and inspected by

the party calling for its production, he is bound to give it as evidence if the

party producing it requires him to do so.

160. Using, as evidence, of document production of which was refused

on notice: When a party refuses to produce a document which he has had

notice to produce, he cannot afterwards use the document as evidence

without the consent of the other party or the order of the Court.

The Article 159 above connotes the benefits and fatalities of

summoning of document for production in the evidence. In this case

if CDR is unfavourable to the accused, then he cannot opt to skip its

production before the Court, if prosecution demands. Whereas

Article 160 above clearly speaks that if the prosecution shall not

produce CDR before the Court on the notice of accused, then it

cannot use such CDR as evidence during the trial except with the

consent of accused or the Court. Thus, right of the accused for

seeking the data of CDR should not be infringed otherwise this

evidence could also not been used by the prosecution during the

trial. Another situation can also be materialized in the circumstances

that if on notice prosecution does not produce the CDR, then

accused shall be at liberty to produce secondary evidence of such

CDR as mandated through Article 76 & 77 of the Qanun-a-Shahadat

Order, 1984 and in this respect he can seek the help of Court under

section 265-F(7) of Cr.P.C. at later stage.

7. There is no cavil to the proposition that for taking a

prosecutorial decision, police collect material pro and contra of the

allegations; some material is used considering it in line with

Crl. Rev. No.200 of 2023 4

prosecution story and rest is abandoned as irrelevant or in conflict of

interest, such material is called unused material. In our law,

disclosure of material to the accused under section 241-A or 265-C

of Cr.P.C. is limited to one which is being used by the prosecution,

but in foreign jurisdictions accused always had a chance to see or

seek any unused material to build his defence or to contradict the

prosecution case. Now Supreme Court of Pakistan in case cited

supra has widened the scope of material to be provided to the

accused if it is essential to adhere to fundamental right of due

process and fair trial. The only exception to this material would the

‘Diary of proceedings in investigation’ which is privileged under

section 172 of Cr.P.C. as held by Supreme Court of Pakistan in case

reported as “MUHAMMAD IDREES and another versus The STATE

and others” (2021 SCMR 612).

8. For what has been discussed above, the accused/petitioner is

entitled to have copy of requisite CDR and recovery memo well in

time before the appearance of Dilawar Hussain SI/I.O. in the dock.

Consequently, this revision petition is allowed in the above terms.

(MUHAMMAD AMJAD RAFIQ)

JUDGE

APPROVED FOR REPORTING:

JUDGE

This

judgment

was

pronounced on 13.12.2023,

however after

dictation

and preparation it wa

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