PLJ 2022 Cr.C. 646 (DB)
[Lahore High Court, Lahore]
Present:
Sohail Nasir and Ali Zia Bajwa, JJ.
MUHAMMAD
ASIF ALI USAMA--Appellant
versus
STATE another--Respondents
Crl. A.
No. 45611 of 2021, decided on 3.8.2021.
Judicial Proceedings--
----Solitary
purpose of--Words 'Just, Right, Fair, Well founded--There is no cavil to this
proposition that solitary purpose of judicial proceedings in a criminal case is
to discover truth and to arrive at a just decision of case--The word 'Just' is
significant that means 'Right, Fair, Well founded'--Therefore, every effort
should be made by Court that no aspect of case is to be left unattended, prior
to declaration of final verdict as was stated by Judge Learned Hand.
[P.
649] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 141--Questions lawful in cross-examination--Object of--Cross-examination
is to check credibility of a witness--The purpose of this exercise is to get
something, no matter how small to help ones' own case--Therefore, to separate truth
from falsehood, always remain an objective while cross-examining a witness--However
modes to shatter credibility of a witness depend on facts of each case--The
word 'Credibility' has been defined as 'the quality of being trusted and
believed in--An adverse party by availing right of cross-examination in fact
convinces a Court that witness in dock is not to be trusted and believed. [P. 650]
B
Constitution of Pakistan, 1973--
----Art. 10-A--Right of fair trial and due process of law-- Articles
10-A of Constitution of The Islamic of Republic of Pakistan, 1973 guarantees
fair trial and due process of law--It is as under:
"10-A.
Right to fair trial--For determination of his civil rights and obligations or
in any criminal charge against him a person shall be entitled to a fair trial
and due process". [P. 650] C
Constitution of Pakistan, 1973--
----Arts. 10 & 11--Right of fair trial--Universal
declaration of human rights--Right of fair trial of an accused is also
recognized in all major jurisdictions--Articles 10 and 11 of Universal
Declaration of Human Rights, to which Pakistan is a signatory, guarantee
that everyone is entitled in full equality to a fair hearing by an independent
and impartial tribunal, in determination of any criminal charge against him and
he shall have all guarantees necessary for his defense. [P.
651] D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 94(1)--Summons to produce document or other
thing--Credibility of witness--Scope of S. 94, Cr.P.C.--Trial Court escaped
notice of
S. 94(1), Cr.P.C. that empowers Court to issue direction for production of a
document or thing if Court considers production of such document or thing
necessary to reach at a just conclusion--Appellant has every right to shatter
credibility of witnesses by pleading his defense and to require production of
documents, necessary to ascertain truthfulness of criminal charge levelled
against him--Section 94, Cr.P.C., a dynamic provision of law, provides this
opportunity, to accused--The only precondition to invoke this Section is that
he has to satisfy Court that production of such document or thing is necessary
for just decision of case--Scope of Section 94, Cr.P.C.-is very wide and word
"whenever" suggests that Court can exercise its power
conferred by this Section at any stage of inquiry or trial--Further, words "any
document or other thins is necessary or desirable for purposes of any
investigation, inquiry, trial or other proceeding under this Code"
have been used which implies that it is not necessary that such document or
thing should be subject matter of such inquiry or trial but only consideration
for production of such document or thing is that it will serve ends of justice
in any such inquiry or trial--The question that both sides of case are to be
treated equally cannot be over looked by us--In People v. Bell accused
was tried for illegal possession of narcotics and sentenced to life
imprisonment--During trial, prosecutor requested that Court call as its witness
a special employee of state who had purchased narcotics from defendant--The
request was made so that state might avoid vouching for credibility of
witness--The Court called witness and both sides were allowed to examine
her--Later defense asked that witness be recalled as Court's witness, but this
request was
refused--The appellate Court reversed on grounds that this refusal was an abuse
of discretion, stating:
"Once
evidentiary door is opened in name of justice for prosecution it cannot as a
matter of discretion be closed to defendant"
It is pertinent to mention that
appellant is facing charge entailing capital sentence, so undoubtedly, it is
essential that he gets every chance to defend him--While passing impugned
order, learned Court below has failed to take notice of these considerations
and squarely fell in error, while dismissing application filed by appellant
especially when members of raiding party have admitted that numbers were in
their personal use--Production of CDR of mobile numbers shall help Court to
arrive at a just decision of case--It is not case of prosecution that appellant
had filed application for purpose of vexation, delay or defeating ends of
justice, but he has asked to do complete justice--Appeal allowed. [Pp. 651 & 652] E & F
Mr. M. Shahbaz Butt Advocate for Appellant.
Mr. Sana Ullah Deputy Prosecutor
General for State.
Date of hearing 3.8.2021.
Order
Through the instant appeal filed under Section 48 of the
Control of Narcotic Substances Act, 1997, (Act) validity of order
dated 25.06.2021, passed by learned Additional Sessions Judge/Judge Special
Court (CNS) Wazirabad, district Gujranwala has been questioned by Muhammad Asif
Ali Usama/accused (appellant) on the basis of which an
application filed by him under Section 265-F(7) read
with Sections 94 and 540, Cr.P.C., was dismissed.
2. Facts of the case are that appellant is facing trial in case
FIR No. 340 recorded on 23.04.2020, under Section 9(c) of the Act at
Police Station Ali Pur, Tehsil Wazirabad district Gujranwala. He moved an
application to bring on record CDR of mobile numbers of members of raiding
party named Muhammad Imran, ASI (PW-2) and Abdul Ghafoor Constable
(PW-3) that was turned down by way of impugned order.
HEARD
3. We have observed that from day one, main defense of
appellant in this case is that, the recovery proceedings are concocted and result of fabrication beside that
Muhammad Imran, ASI/complainant (PW-2) and Abdul Ghafoor
Constable/recovery witness (PW-3) were not present at the alleged
crime scene. Statements of both the witnesses show that they were thrown a
challenge by appellant that they were not present at place of occurrence.
Mobile phone numbers of both the witnesses were also brought on record during
the course of cross-examination. We have further noticed that Sana Ullah, SI/IO
(PW-4) was also categorically asked in cross-examination about
securing of CDR of mobile numbers of both the witnesses mentioned earlier,
which he denied hereunder.
4. We find that the learned trial
Court escaped notice of Section 94(1), Cr.P.C. that empowers the Court to issue
direction for the production of a document or thing, if Court considers the
production of such document or thing necessary to reach at a just conclusion.
For ready reference, the ibid provision is reproduced hereunder:-
"94. Summons
to produce document or other thing.
(1) Whenever any Court or any officer in
charge of a police station considers that the production of any document or
other thing is necessary or desirable for the purposes of any investigation,
inquiry, trial or other proceeding under this Code by or before such Court or
officer, such Court may issue a summons, or such officer a written order, to
the person in whose possession or power such document or thing is believed to
be, requiring him to attend and produce it, or to produce it, at the time and
place stated in the summons or order"
5.
There is no cavil to this proposition that solitary purpose of judicial
proceedings in a criminal case is to discover the truth and to arrive at a just
decision of the case. The word 'Just' is significant that
means 'Right, Fair, Well founded'. Therefore, every effort
should be made by the Court that no aspect of the case is to be left
unattended, prior to declaration of final verdict as was stated by Judge Learned
Hand:[1]
"A Judge is more than a moderator; he
is charged to see that the law is properly administered, and it is a duty which
he cannot discharge by remaining inert."[2]
6. Article 141 of the Qanun-e-Shahadat,
Order 1984 is with reference to 'Questions lawful in
Cross-Examination'. The provision is as under:
"When a witness is cross-examined, he
may, in addition to the questions hereinbefore referred to be asked any
questions which tend--
(1) to test his veracity,
(2) to
discover who he is and what is his position in life, or
(3) to shake his
credit, by injuring his character, although the answer to such question might
tend directly or indirectly to criminate him or might expose or tend directly
or indirectly to expose him to a penalty or forfeiture "
(Emphasized)
7.
Plain reading of the provision makes it clear that the object of
cross-examination is to check the credibility of a witness. The purpose of this
exercise is to get something, no matter how small to help ones' own case.
Therefore, to separate the truth from falsehood, always remain an objective
while cross-examining a witness. However the modes to shatter the credibility of
a witness depend on facts of each case. The word 'Credibility'
has been defined as 'the quality of being trusted and believed in.
An adverse party by availing the right of cross-examination in fact convinces a
Court that the witness in dock is not to be trusted and believed.
8.
Articles 10-A of the Constitution of The Islamic of Republic of Pakistan, 1973
guarantees fair trial and due process of law.[3]
It is as under:
"10-A.
Right to fair trial. For the determination of his
civil rights and obligations or in any criminal charge against him a person
shall be entitled to a fair trial and due process".
9. It was held in Naveed
Asghar's Case[4]
that:
"No matter how heinous the crime, the
constitutional guarantee of fair trial under Article 10-A cannot be taken away
from the accused.
It may be pertinent to underline here that
the principles of fair trial have now been guaranteed as a Fundamental Right
under Article 10-A of the Constitution and are to be read as an integral part
of every sub-constitutional legislative instrument that deals with
determination of civil rights and obligations of, or criminal charge against,
any person "
10. Components of right to fair
trial and its importance were well elaborated by the august Supreme Court in Muhammad
Bashir's case,[5]
in the following words:
"The
Constitution of the Islamic Republic of Pakistan prescribes important
safeguards against depriving a person of his "life or liberty" and
with regard to arrest and detention, which includes "the right to consult
and be defended by a legal practitioner of his choice". The Constitution
also mandates a "fair trial and due process". A person arrested for
an offence (1) must be informed of the grounds of his arrest; (2) must be
permitted to consult with and be defended by a lawyer; (3) must be provided
with the information of the offence he is charged for; (4) must be provided
with an opportunity to cross-examine witnesses who depose against him; (5) must
be given an opportunity to explain the circumstances disclosed in evidence
against him; and (6) must also be provided an opportunity to produce
evidence in his defense. These are also necessary ingredients to ensure
the fairness of a trial."
(Emphasis applied)
11.
Further, this right of fair trial of an accused is also recognized in all the
major jurisdictions. Articles 10 and 11 of the Universal Declaration of
Human Rights,[6]
to which Pakistan is a signatory, guarantee that everyone is entitled in full
equality to a fair hearing by an independent and impartial tribunal, in the
determination of any criminal charge against him and he shall have all the
guarantees necessary for his defense. These Articles are provided as below: -
"Article 10
Everyone is entitled in full equality to a
fair and public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal charge against
him.
Article 11
1. Everyone charged with a penal offence
has the right to be presumed innocent until proved guilty according to law in a
public trial at which he has had all the guarantees necessary for his defence.
2. No one shall be held guilty of any
penal offence on account of any act or omission which did not constitute a
penal offence, under national or international law, at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was
applicable at the time the penal offence was committed."
12.
We therefore find that the appellant has every right to shatter the credibility
of the witnesses by pleading his defense and to require the production of
documents, necessary to ascertain the truthfulness of the criminal charge
levelled against him. Section 94, Cr.P.C., a dynamic
provision of law, provides this opportunity, to the accused. The only
precondition to invoke this Section is that he has to satisfy the Court that
production of such document or thing is necessary for the just decision of the
case. Scope of Section 94, Cr.P.C.-is very wide and word "whenever"
suggests that Court can exercise its power conferred by this Section at any
stage of inquiry or trial. Further, words "any document or other
thins is necessary or desirable for the purposes of any investigation, inquiry,
trial or other proceeding under this Code" have been used
which implies that it is not necessary that such document or thing should be
subject matter of such inquiry or trial but only consideration for the
production of such document or thing is that it will serve the ends of justice
in any such inquiry or trial.
13.
The question that both sides of the case are to be treated equally cannot be
over looked by us. In People v. Bell[7]
accused was tried for illegal possession of narcotics and sentenced to life
imprisonment. During the trial, the prosecutor requested that the Court call as
its witness a special employee of the state who had purchased narcotics from
the defendant. The request was made so that the state might avoid vouching for
the credibility of the witness. The Court called the witness and both sides
were allowed to examine her. Later the defense asked that the witness be
recalled as the Court's witness, but this request was refused. The appellate
Court reversed on the grounds that this refusal was an abuse of discretion,
stating:
"Once the
evidentiary door is opened in the name of justice for the prosecution it cannot
as a matter of discretion be closed to the
defendant"
14.
It is pertinent to mention that appellant is facing the charge entailing
capital sentence, so undoubtedly, it is essential that he gets every chance to
defend him. While passing the impugned order, the learned Court below has
failed to take notice of these considerations and squarely fell in error, while
dismissing the application filed by appellant especially when members of the
raiding party have admitted that the numbers were in their personal use. We,
therefore, find that production of CDR of the mobile numbers shall help the
Court to arrive at a just decision of the case. We have also
noticed that it is not the case of
prosecution that appellant had filed the application for the purpose of
vexation, delay or defeating the ends of justice, but what we see that he has
asked to do the complete justice.
15. Concluding the discussion made above, we allow
this appeal, set aside the impugned order dated 25.06.2021 and direct the
learned trial Court to summon the CDR as has desired by the appellant.
(A.A.K.) Appeal allowed
[1]. Billings Learned Hand, January 27, 1872 -
August 18, 1961) was an American judge and judicial philosopher. He served on
the United States District Court for the Southern District of New York and
later the United States Court of Appeals for the Second Circuit. As of 2004
Hand had been quoted more often by legal scholars and by the Supreme Court of
the United States than any other lower-Court judge.
[2]. United States v.
Marzano, 149F.2D 923 (2nd Cir. 1945)
(https://law.justia.com/cases/federal/appellate-Courts/F2/149/923/1507656/).
[3]. Sarfraz Saleem vs.
Federation of Pakistan PLD 2014 SC 232.
[4]. Naveed Asghar vs. The
State PLD 2021 SC 600.
[5]. Muhammad Bashir vs.
Rukhsar & others PLD 2020 SC 334.
[6]. https://www.un.org/en/about-us/universal-declaration-of-human-rights.
[7]. https://casetext.com/case/people-v-bell760?__cf_chl_jschl_tk_=
pmd_uZxCt3I6LZKIvmXjtfCGNoLO_G05_qM2EuFOXwoDKo-1629530748-0-gqNtZGzNAiWjcnBszQiR.