Sabir Hussain vs State arts — 2024 MLD 886 LAHORE-HIGH-COURT-LAHORE

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Sabir Hussain VS State arts. 159 & 160---Criminal Procedure Code (V of 1898), Ss. 94 & 540---Evidence, summoning/examining of---Scope---application of the petitioner for providing him with copy of Call Data Record (CDR) comprising of 117 pages mentioned in the recovery memo was declined---Validity---In this case, CDR of accused persons was collected by Investigating Officer through recovery memo dated 30.11.2020 but such CDR and a recovery memo were not appended with the report under S.173 of Cr.P.C.---Such evidence would be used against the accused if unfavourable to him; therefore, he could not 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, 1973, required that all the processes supplemented by the legal provisions must be followed by providing a fair opportunity to the accused---In this case if CDR was unfavourable to the accused, then he could not opt to skip its production before the Court, if prosecution demanded---article 160 of Qanun-e-Shahdat, 1984 provides that if the prosecution does 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 be used by the prosecution during the trial---any material was to be provided to the accused if it was essential to adhere to fundamental right of due process and fair trial---Only exception to this material is the 'diary of proceedings in investigation' which is privileged under S.172 of Cr.P.C.---Petition was allowed, in circumstances.

Sabir Hussain vs State arts — 2024 MLD 886 LAHORE-HIGH-COURT-LAHORE

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