2024 MLD 886
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.
It has further been noticed that once a party calls a document after giving notice to the other for its production which is in the 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.
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.
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 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.
Crl. Revision-Against Interim Order-PPC
200-23
SABIR HUSSAIN VS THE STATE ETC.
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