Muhammad Ali for Petitioner.

 Sultan Asghar Chatha, Deputy Prosecutor General for State.

Date of hearing: 14^th July 2022.

JUDGMENT

ALI ZIA BAJWA, J.—Through the instant revision petition filed under Section 435/439-A Code of Criminal Procedure (Cr.P.C.) the petitioner, who is standing trial in case FIR No.29/2021, dated 15.12.2021, offences under sections 4/5 of Explosive Substances Act, 1908, read with section 7 of The Anti-Terrorism Act, 1997, and section 13 of Pakistan Arms Ordinance (XX) 1965, registered with Police Station Counter Terrorism Department (CTD), Lahore, has called into question the vires of the impugned order dated 08.06.2022 (hereinafter ‘the impugned order’) passed by learned Judge, Anti-Terrorism Court No. I, Lahore (hereinafter ‘the trial court’) through which his application for summoning of registers No.2, 19 and 21 of the said police station, was dismissed.

2.    Succinct facts, which led to the institution of instant revision petition, are that the petitioner along with his co-accused was booked in the aforementioned criminal case with the accusations that on 15.12.2021, personnel of CTD recovered a huge quantity of explosive substance. After completion of the investigation, the report under section 173 Cr.P.C. was prepared and submitted before the learned trial court. During the trial proceedings, examination-in-chief of Naqash Sarwar 236/CPL (PW-1), Muhammad Arslan 507/CPL (PW-2), Abid Hussain 734/CPL (PW-3), Abid Mushtaq 522/CPL (PW-4) and Adeel Anwaar 293/CPL (PW-5) was recorded and partial cross-examination upon PW-1 was also carried out by the defense side, when an application under Section 94 Cr.P.C. was filed by the petitioner for the summoning of registers No.2, 19 and 21 for the period 14.12.2021 to 17.12.2021 of Police Station CTD, Lahore, however, the same was dismissed by the learned trial court by the virtue of impugned order.

3.    Arguments heard. Record perused.

4.    Bare perusal of the impugned order reflects that the learned trial court dismissed the application of the petitioner solely on the ground that registers requested to be summoned are privileged documents under section 172 Cr.P.C., therefore cannot be summoned. We would like to take up the legal question raised before this Court that whether registers No. 2, 19 and 21, as maintained under the Police Rules, 1934, are privileged documents and governed by section 172 Cr.P.C. Before responding to this legal question, it would be advantageous to reproduce section 172 Cr.P.C. here before further elaborating its scope.

172. Diary of proceedings in investigation: (1) Every police-officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in-a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.

(2) Any Criminal Court may send for the police-diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police-officer who made them, to refresh his memory, or if the Court uses them for the purpose of contradicting such police-officer, the provisions of the Evidence Act, 1872, Section 161 or Section 145, as the case may be, shall apply.

The aforementioned Section is a self-explanatory provision of law, which makes it the bounden duty of every investigating officer to enter day-to-day proceedings of the investigation in a case diary, setting forth the time at which the information reaches him, the time at which he begins and closes his investigation, the place or the places visited by him and statement of the circumstances ascertained through his investigation. Such case diary may be used by the court at the trial or inquiry, not as evidence in the case, but to aid itself in such inquiry or trial. In Muhammad Idrees[1] revered Supreme Court of Pakistan extensively elaborated the scope of Section 172(1), Cr.P.C. by observing that the object to require recording of the said details in the police diary appears to enable the courts to check the method and manner of investigation undertaken by the investigating officer. As early as 1897 the Full Court of the Allahabad High Court in Queen Empress v. Mannu[2] examined the scope of Section 172 Cr.P.C. and the use of the police diary. John Edge, Kt., C.J. who spoke for the Court observed as infra:

“In my opinion the plain meaning of section 172 is that the special diary, no matter what it may contain, is absolutely privileged, unless it is used to enable the Police officer who made, it to refresh his memory or is used for the purpose of contradicting him.”

Having briefly discussed the purpose and scope of section 172 Cr.P.C., we have no hesitation to hold that a police diary maintained in a criminal case is absolutely a privileged document, which cannot be provided to an accused unless it is used by the Police officer who made it to refresh his memory or is used for the purpose of contradicting him. This section only deals with the case diary maintained by the investigating officer of every criminal case and has no relevance to the police registers, requested to be summoned by the petitioner, which are maintained under the Police Rules, 1934 (hereinafter ‘Rules’).

5.    The famous quote of Lord Acton ‘power tends to corrupt, and absolute power corrupts absolutely’[3] seems a rationale behind the effective mechanism of checks and balances provided in the Code and Rules. Policing is a job that carries a lot of authority and powers with it, including the power to deprive someone of his life and liberty, therefore, it was necessary to keep a record of every step taken by the police officials in order to keep them strictly within the sphere of their legal duties. Under Rule 45 Chapter 22 of the Rules, at every police station, there shall be maintained 25 types of police registers to keep a record of different duties and functions performed by the police officials. The aforementioned rule clearly depicts that keeping a record of every activity of police officers is with the purpose to keep the police proceedings transparent and within the domain of law. Every step taken in connection with the performance of their duties in a police station is incorporated into these registers to rule out every possibility that police officials perform their duties in an arbitrary manner according to their whims and wishes. All the pretrial proceedings are also protected by Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 to ensure a fair trial, therefore, proper maintenance of these registers is also a constitutional requirement under this Article.

6.    The petitioner has requested the summoning of registers Nos. II, XIX and XXI as mentioned in Rule 49 of Chapter 22 of the Rules. Register No. II is called Station Diary. It is a complete record of all events which take place at the police station. It should, therefore, record not only the movements and activities of all police officers but also visits of outsiders, whether officials or non-officials, coming or brought to the police station for any purpose whatsoever.[4] Register No XIX contains the details of every article placed in the storeroom and removed therefrom.[5] Register No. XXI is a bound book of road certificates[6] , which are issued for a variety of purposes.[7] For instance when some case property etc. is sent from the police station for forensic analysis etc. A road certificate is a document necessary to be accompanied with a person carrying any parcel or property etc of the police station pertaining to any criminal case. When the police officer returns to the police station, the copy of the road certificate or receipt in lieu thereof shall be pasted onto the place from which the copy issued was taken. The registers requested to be summoned are public documents and with no stretch of the imagination are covered by the prohibition contained under Section 172 Cr.P.C. as misunderstood by the learned trial court.

7.    Every accused has a right to have fair trial and the concept of fair trial recognized under the Code has been conferred an elevated status under Article 10-A of the Constitution and now it is a much broader and wider concept. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted.[8]

8.    In Naveed Asghar[9] it was observed by the revered Supreme Court of Pakistan that the right to a fair trial is guaranteed under Article 10-A of the Constitution now, therefore, should be read as an integral part of every sub-constitutional legislative instrument that deals with the determination of the criminal charge against any person, irrespective of the heinous of the charge leveled against him. In Muhammad Bashir[10] while elaborating the concept of the right to fair trial the key components have been laid down in the following terms by the esteemed Supreme Court of Pakistan:-

“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 defence. These are also necessary ingredients to ensure the fairness of a trial.”

9.    Article 10 of the Universal Declaration of Human Rights (UDHR) provides for the right to a fair trial what is enshrined in Article 10-A of our Constitution.[11] Pakistan is also a party to The International Covenant on Civil and Political Rights (ICCPR), which is a multilateral treaty that under Article 14 commits states parties to respect the civil and political rights of individuals, including a fair trial. Article 6 of The European Convention on Human Rights (ECHR) lays down that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

10. Fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity and is governed by rule of law. Denial of fair trial is crucifixion of human rights.[12] It is more than settled that a fair trial is the ultimate object of the criminal justice system, and such fairness should not be hampered or threatened in any manner because every person has the right to have a fair trial by the competent Court in the spirit of the right to life and personal liberty.

11. Petitioner is standing trial for keeping explosive material in his possession. He was allegedly arrested along with his co-accused with explosive material in their possession. All the above-mentioned police registers are not only relevant but also necessary for the just decision of the case. There is no legal provision available on the statute books to consider these police registers as privileged. The purpose of a fair trial is to find out the truth and prevent miscarriage of justice. For that purpose, the trial Court is fully equipped with all the necessary powers under the Code and Qanoon-e-Shahdat, 1984. The role of a trial court should not be of a silent spectator, rather a participatory role should be played to ensure that truth must be arrived at. The Judge is not a mere umpire at a wit-combat between the lawyers for the parties whose only duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost. He is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth.[13]

12. The very purpose of a fair trial shall be defeated if the petitioner is not provided a fair opportunity to prove his innocence. Under Section 94 of the Code read with Articles 158 and 161 Qanoone-Shahadat, 1984, a wide powers have been conferred upon the court to summon any document or thing if the production of that document is desirable and necessary for the purpose of the trial. The aforementioned provisions are enabling provisions of law which aim at arming the court to ensure the production of any document or thing to arrive at a just decision. It is sound rule of construction that procedural enactments should be construed liberally and in such a manner as to render the substantive rights effective.[14] Earl T. Crawford in his celebrated book ‘The Construction of Statutes’ in section 254 at page No. 496 writes as infra:-

“Statutes which relate to remedies and procedure, perhaps because they are remedial in character, should also receive a liberal construction in order to promote justice and to carry out their respective purposes”

13. Section 94, Cr.P.C, an enabling provision of law, provides this opportunity to the accused. The only precondition to invoke this Section is that he must satisfy the court that the production of such document or thing is ‘necessary or desirable’ for the just decision of the case. The Language of section 94 Cr.P.C indicates the width of the power to be unlimited but there is also an inbuilt limitation provided in this section. The scope of section 94, Cr.P.C is very wide, and the word “whenever” suggests that the court can exercise its power conferred by this Section at any stage of inquiry or trial. Further, the words “any document or other thing 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 the subject matter of such inquiry or trial but only consideration to produce such document or thing is that it will serve the ends of justice in any such inquiry or trial.

14. The power conferred upon the court to order the production of a thing or document should be exercised liberally after the court is satisfied that it is ‘necessary and desirable’ that such document or thing should be produced as being relevant or having some connection with the inquiry or trial in progress. We, therefore, find that the petitioner has every right to shatter the credibility of the witnesses by advancing his defense and to require the production of documents, necessary to ascertain the truthfulness of the criminal charge leveled against him. In addition to the aforementioned provisions of law Rule 27.16 of the Rules states that a police officer is bound to produce any document in his possession or power if summoned to do so. This Rule further contains a list of documents which are privileged but registers requested to be summoned by the petitioner are not included in that list.

15. We, therefore, find that the petitioner has every right to shatter the credibility of the witnesses by advancing his defense and to require the production of documents, necessary to ascertain the truthfulness of the criminal charges leveled against him. It is evidently clear from what has been discussed above that right to a fair trial has been denied to the petitioner by the learned trial court. The learned trial court utterly misconceived and misconstrued the provisions of section 172, Cr.P.C. The impugned findings of the learned trial court in this regard are patently illegal, erroneous and fanciful, therefore, not sustainable in the eye of the law, therefore, the same are set aside.

16. Resultantly, this revision petition is allowed and the learned trial court is directed to summon the registers as requested by the petitioner. However, the question of admissibility and evidentiary value of any of those documents shall be determined by the learned trial court in accordance with the law.

Petition allowed