Muhammad Asif alias Usama Vs The State etc.

FORM No. HCJD/C-121.

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Criminal Appeal No. 45611 of 2021

Muhammad Asif Ali Usama Versus The State & another

S. No. of Date of order/ order/ Order with signature of Judge, and that of parties of counsel, where necessary.

Proceeding Proceeding

03.08.2021 Mr. M. Shahbaz Butt Advocate for appellant Mr. Sana Ullah Deputy Prosecutor General for the State 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

Muhammad Asif Ali Usama vs. The State & another 2 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.

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,

Muhammad Asif Ali Usama vs. The State & another 3 prior to declaration of final verdict as was stated by Judge Learned Hand1: - “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 inert2

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.

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.

United States v. Marzano, 149F.2D 923 (2nd Cir. 1945) (https://law.justia.com/cases/federal/appellate-courts/F2/149/923/1507656/)

Muhammad Asif Ali Usama vs. The State & another 4

8.Articles 10-A of the Constitution of The Islamic of Republic of Pakistan, 1973 guarantees fair trial and due process of law3. 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 Case4 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 case5, 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 Sarfraz Saleem vs. Federation of Pakistan PLD 2014 SC 232 Naveed Asghar vs. The State PLD 2021 SC 600 Muhammad Bashir vs. Rukhsar & others PLD 2020 SC 334

Muhammad Asif Ali Usama vs. The State & another 5 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 6 https://www.un.org/en/about-us/universal-declaration-of-human-rights

Muhammad Asif Ali Usama vs. The State & another 6 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 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 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. Bell7 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”

7https://casetext.com/case/people-v-bell760?__cf_chl_jschl_tk__=pmd_uZxCt3I6LZKIvmXjtfCGN0LO__G05_qM2EuFOXwoDKo- 1629530748-0-gqNtZGzNAiWjcnBszQiR

Muhammad Asif Ali Usama vs. The State & another 7

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.

(Sohail Nasir) (Ali Zia Bajwa) Judge Judge Riaz

Approved for Reporting

(Judge)