The page cannot be found http://www.plsbeta.com/LawOnline/law/topbar.

asp

The page cannot be found

The page you are looking for might have been removed, had its name changed, or is
temporarily unavailable.

Please try the following:

Make sure that the Web site address displayed in the address bar of your
browser is spelled and formatted correctly.
If you reached this page by clicking a link, contact the Web site administrator to
alert them that the link is incorrectly formatted.
Click the Back button to try another link.

HTTP Error 404 - File or directory not found.

Internet Information Services (IIS)

Technical Information (for support personnel)

Go to Microsoft Product Support Services and perform a title search for the
words HTTP and 404.
Open IIS Help, which is accessible in IIS Manager (inetmgr), and search for
topics titled Web Site Setup, Common Administrative Tasks, and About
Custom Error Messages.

1 of 1 9/15/2025, 6:50 AM
Case Judgement http://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2022L3003

2022 P Cr. L J 59
[Lahore]
Before Sohail Nasir and Ali Zia Bajwa, JJ
MUHAMMAD ASIF ALI USAMA---Appellant
Versus
The STATE and 2 others---Respondents
Criminal Appeal No. 45611 of 2021, decided on 3rd August, 2021.
(a) Criminal Procedure Code (V of 1898)---
----S. 94---Summoning of record or a thing---Pre-condition---Word "whenever"---Scope---Only
precondition to invoke provision of S. 94, Cr.P.C. is that Court is to be satisfied that production of
document or thing is necessary for just decision of case---Scope of S. 94, Cr.P.C. is very wide and word
"whenever" suggests that Court could exercise its power conferred to it at any stage of inquiry or trial.
(b) Criminal Procedure Code (V of 1898)---
----S. 94---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Recovery of narcotic
substance---Document, summoning of---Accused during cross examination sought summoning of Call
Data Record of cellular phones of prosecution witnesses---Trial Court declined to summon the record---
Validity---Accused was facing charge entailing capital sentence, it was essential that he could get every
chance to defend him---While passing order in question, Trial Court failed to take notice of such
considerations and fell in error, while dismissing application filed by accused---Prosecution witnesses
were members of raiding party who admitted that telephone numbers were in their personal use---
Production of Call Data Record of mobile numbers would help the Court to arrive at just decision---High
Court directed Trial Court to summon Call Data Record as desired by accused---Appeal was allowed in
circumstances.
United States v. Marzano, 149F.2D 923 (2nd Cir. 1945); Sarfraz Saleem v. Federation of Pakistan
PLD 2014 SC 232; Naveed Asghar v. The State PLD 2021 SC 600 and Muhammad Bashir v. Rukhsar
and others PLD 2020 SC 334 rel.
M. Shahbaz Butt for Appellant.
Sana Ullah Deputy Prosecutor General for the State.
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

1 of 4 9/15/2025, 6:50 AM
Case Judgement http://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2022L3003

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.
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
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.

2 of 4 9/15/2025, 6:50 AM
Case Judgement http://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2022L3003

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 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 Rights6, 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

3 of 4 9/15/2025, 6:50 AM
Case Judgement http://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2022L3003

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 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"
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.
MH/M-175/L Appeal allowed.

4 of 4 9/15/2025, 6:50 AM