Mst. SEHAR GULL vs STATE, etc
This criminal petition was filed under Section 561-A of the Code of Criminal Procedure 1898, challenging an order passed by the Additional Sessions Judge, Muzaffargarh. The core legal question was whether the trial court correctly dismissed an application by the complainant to place Call Detail Record (CDR) evidence on the record, which had not been collected by the Investigating Officer during the investigation but was mentioned in the initial complaint. The High Court held that the trial court's dismissal was improper because the CDR data was relevant evidence clearly referenced in the complaint and the complainant should not suffer due to the Investigating Officer's inaction. The Court upheld the Revisional Court's order allowing the production of this evidence. The key principle laid down is that under Sections 94 and 540 of the Code of Criminal Procedure 1898, the trial court is obligated to ensure justice by allowing the prosecution to substantiate its version, particularly when the evidence in question is not a surprise and is relevant to the case, thereby ensuring a fair adjudication of the matter.
- Can a complainant be allowed to produce evidence not collected by the Investigating Officer if it was mentioned in the initial complaint?
- Does the trial court have the power under Section 540 of the Code of Criminal Procedure 1898 to allow the production of relevant evidence to ensure justice?
- Is the inaction of an Investigating Officer a valid ground to prevent the prosecution from producing relevant evidence?
- Section 561-A, Code of Criminal Procedure 1898
- Section 380, Pakistan Penal Code 1860
- Section 457, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 94, Code of Criminal Procedure 1898
- Section 540, Code of Criminal Procedure 1898
ORDER
By means of instant petition filed under section 561-A. Cr .P.C. petitioner has made following prayer: - "Under the above submissions, it is therefore, most respectfully prayed that this petition may very kindly be accepted/allowed and the impugned judgment/order dated 06.12.2018 (Annex-G ) passed by the learned ASJ, Mozaffargarh, may very graciously be quashed by declaring the same as null and void unwarranted by law, and the dismissal order of the learned Area Magistrate dated 07.11.2018 may very kindly be restored in the interest of justice.
Any other relief that may be just and due may also be granted."
Facts relevant for the disposal of the instant petition are that Respondent No.4 Sarfraz got registered a case FIR No.401/16 dated 23.08.2016, offence under Section 380, 457, 34 PPC at P.S City Mozaf fargarh against the petitioner and Respondents No. 5 & 6 in which evidence of six PWs was recorded. On 27.10.2018 the Respondent No.4 moved an application for granting permission to place on record CDR which he has obtained from a mobile company , also collected by the local police which was dismissed by the learned trial court/Magistrate vide order dated 07.11.2018. Subsequently , Respo ndent No.4 challenged the said order before the Court of learned Revisional Court/ASJ who while allowing the said revision petition set aside the order of learned trial Magistrate in terms of order dated 6.12.2018 and granted permission to place on record the privately collected mobile data as evidence, the same order has been impugned by the petitioner through the instant petition.
3. Arguments advanced pro and contra have been heard and record available on file perused.
4. Admittedly , the petitioner is accused of case FIR No.401/16 dated 23.08./2016, offence under section 380, 457, 34 PPC at P.S. City Mozaf fargarh. Undeniably , CDR data was not collected by the Investigating Officer during the course of investigation. The perusal of the order impugned reveals that the said CDR data finds specifically mentioned in the complaint Exh.P A. In such circumstances, its collection was the duty of the I.O. being relevant to the extent of rendering opinion on completion of investigation either in affirmative or negative as the case may be and as such the complainant cannot be allowed to suffer due to inaction of the police/T .0, the same evidence was otherwise never a surprise evidence rather finds clearly mentioned in the contents of the complaint Exh.P A. The impugned order further evinces that complainant has also accordingly , deposed while appearing in the witness box as PW.1. However , it would be a matter of appreciation of evidence: as legal and factual aspects of the intended evidence. The perusal, of provisions of Section 94 Cr.P.C. read with Section 540 Cr.P.C. clearly reflect that learned trial Court is under obligation to adjudicate matter in the interest of justice while affording opportunities to the prosecution to substantiate its version and the defence to cross examine it. In such circumstances, the learned Revisional Court/ASJ has passed the impugned orders while taking into consideration the material available on the record in its true perspective, hence, the same is well-versed, well-reasoned and quite in accordance will, law, therefore, the same call for no interference by this Court. Further , learned counsel for the petitioner has failed to point out any illegality or perversity in the impugned order .
5. For the foregoing reasons, the petition in hand being patently devoid of any force is hereby dismissed.