2025 CCJ 17
Other citations: 2025 PCrLJ 130
[Islamabad High Court]
Before Arbab Muhammad Tahir, J
Hazrat Usman and another—Petitioners
versus
The State—Respondent
Criminal Revision Petitions Nos. 201 and 202 of 2023, decided on 3rd January, 2024.
HEADNOTES
Awaiting headnotes from volunteer editors.
Malik Muhammad Haseeb for the petitioner.
Hazrat Younas, State Counsel for the State.
Sudher Abbasi, ASI with record.
Date of hearing: 3rd January, 2024.
ORDER
Arbab Muhammad Tahir, J:—The petitioners, through both these criminal revision petitions have impugned two separate orders, both dated 12.12.2023, passed by the learned Additional Sessions Judge, Islamabad (West).
2. The petitioners are accused and facing trial in FIR No.1179/22, dated 07.10.2022 registered under sections 9(c)/15 at the Police Station Industrial Area, Islamabad. The trial is at the stage of recording statements of prosecution witnesses. Five witnesses have already been examined whereas during cross-examination of PW-6, the petitioners filed two separate applications. In one application the petitioners requested for examination of the signatures of Zulfiqar, S.I./L.O. from the handwriting expert. The other application was filed by the petitioners for the summoning of the daily diary dated 07.10.2022 and Register No. 19 maintained at the Police Station under the relevant rules. Both the applications were dismissed by the trial court through the impugned orders, dated 12.12.2023, hence these revisions petitions.
3. The learned counsel for the petitioners has argued that; the impugned orders have been passed illegally, the findings of the trial impugned perverse, the petitioners are facing criminal trial and entitled to due process and fair trial under Article 10-A of the Constitution, applications were moved to bring the truth on record and prove their applications the impugned orders have blocked the defence of the petitioners; the impugned orders are liable to be set-aside.
4. Learned State Counsel on the other hand has argued that; de applications were misconceived; the applicants could have filed the applications after conclusion of prosecution evidence; the petitioners will be at liberty to adduce evidence after conclusion of prosecution evidence the petitioners are attempting to create new evidence during trial; the provisions of section 94 Cr.P.C. can be invoked to call for existing documents; the impugned orders are well reasoned; the petitions are liable to be dismissed.
4. Heard. Record perused.
5. The petitioners are facing trial in a criminal case. The trial is at the stage of recording of prosecution witnesses. The examination-in-chief of PW-6 has been recorded, whereas, during cross-examination of this witness, the petitioners filed two applications i.e. (i) for examination of the signatures of Zulfiqar, from the handwriting expert, and (ii) for the summoning of a daily diary dated 07.10.2022 and register No.19 maintained at the Police Station under the relevant rules. The trial court dismissed the first application i.e. examination of signatures by a handwriting expert, with the observation that petitioners were required to file the said application “at early stage of case”, whereas, the second application i.e. for summoning of daily dairy and register No.19, it was concluded that “if the accused has any doubt regarding entries in the daily diary and register No.19, then he had the right to file complaint against the police officials before high-ups of police department”. The trial court, therefore, dismissed both the applications.
6. The applications filed by the petitioners have been perused, however, the provision of law under which the said applications were filed has not been mentioned. Chapter XXII-A of the Code of Criminal Procedure, 1898 (hereinafter the “Cr.P.C.”) deals with ‘trials before High Courts and Courts of Sessions’. The trial has already commenced and the prosecution has produced witnesses in support of its case. Section 265-F Cr.P.C. read with Article 133 of the Qanun-e-Shahadat Order, 1984 governs the order of examination of witnesses. As the evidence of the prosecution is not yet over, it can safely be assumed that the petitioners had made the applications under section 94 Cr.P.C.
7. The Supreme Court in the case titled “The State v. Chaudhry Muhammad Usman” [2023 SCMR 1676] has extensively discussed sections 265-F(7) and 94 Cr.P.C. It has been held that “A bare reading of section 94 shows that there is no limitation as to the stage of the inquiry or trial when a court can, in the exercise of its power under this Section, make an order for the production of any document. The only condition for the exercise of the power under section 94 is that the production of the document must be necessary or desirable for the purposes of the inquiry or trial before the court. The word ‘whenever’ in section 94 clearly indicates that a court can exercise the power of requiring the production of any document under this Section at any stage of the inquiry or trial.” It has further been held that there is no restriction as to whose point of view, whether prosecution or the accused, the required documents may be necessary or desirable for the purpose of inquiry or trial. The Supreme Court in the referred judgment has further held as follows:-
“There may be cases in which owing to dishonesty, negligence or any other reason, the prosecution does not produce certain documents with the police report, which may establish that there is no probability of the accused being convicted of any offence or the charge against the accused is groundless, and the production thereof is thus necessary or desirable for the purposes of the inquiry or trial. But because such documents are not filed with the police report, the same will not be supplied to the accused under section 265-C, Cr.P.C. In such cases, it would not be just and fair to the accused to reject his application for the production of such documents and to let him undergo the ordeal of protracted trial proceedings and wait for the stage of defence evidence. Similarly, the documents which are not produced by the prosecution with the police report but are relevant to the matter under the inquiry or trial and to use them for his defence, the accused is legally required to confront the prosecution witnesses with those documents in their cross-examination. In such a circumstance it would be in the interest of justice that the application of the accused made under section 94 for their production is allowed. Otherwise, it would incur unnecessary delay, expense and inconvenience to recall the prosecution witnesses at the stage of defence evidence only for the purpose of confronting them with such documents.”
Furthermore, when the prosecution concludes its evidence, the accused shall be asked whether he means to adduce evidence in accordance with section 265-F(4) of Cr.P.C. If the accused answers positively, he shall exercise his right envisaged in section 265-F(7) of Cr.P.C. It would be advantageous to reproduce this section, which reads as under:-
“If the accused, or any one of several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of Justice. Such ground shall be recorded by the Court in writing. (emphasis added)
8. The aforementioned provision is self-explanatory, which makes it the onerous duty of the court to issue any process when the accused enters in his defence for three-fold purposes (1) compelling the attendance of any witness for examination (ii) production of any document (iii) or other thing. The appropriate stage for making an application by the accused for summoning the witness is section 265-F(7) Cr.P.C. It is the primary and paramount duty of the criminal courts to strike balance to ensure fair trial and that trial is conducted smoothly without any interruption or obstruction. If the practice of making applications during the examination of witnesses is continued, no criminal court would be able to conclude trials as the proceedings can be halted by merely filing an application during examination of witness of the other party. The intention of the legislation manifests that the trial should proceed in the order enshrined in section 265-F Cr.P.C. More importantly, every frustrated trial defies and mocks the society based on the rule of law. Every subverted trial leaves a scar on the criminal justice system. Even otherwise, the trial court is empowered to summon any person as a witness if his evidence appears to be essential for the just decision of the case within the purview of section 540 Cr.P.C. The object underlying section 540 Cr.P.C is that there may not be a failure of justice on account of the mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statement of the witnesses examined from either side.
9. The accused 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 levelled against him, provided that the accused makes an application at the appropriate stage provided by law.
10. In the case at hand, the trial is at the stage of section 265-F(2) and the Court is taking evidence produced in the support of the prosecution. The trial court should proceed with the trial in the manner contemplated by the provisions of this section. The accused will be at liberty to file applications for the summoning of Daily Diary dated 07-10-2022 and Register No.19, and for comparison of signatures (Sudheer Abbas and Zulfiqar) at the stage when section 265-F(7) of Cr.P.C. comes into play. At such stage of trial, even if the petitioners do not opt to lead defence evidence, they will be at liberty to file applications under section 94 Cr.P.C. The trial court shall decide the applications (if any) strictly in accordance with the law with regard to the admissibility and relevancy of evidence.
11. For what has been discussed above, Crl. Revision No.201/2023 and Crl. Rev. No.202/2023 are disposed of in the above terms.
Order accordingly