Rizwan Ali Versus State
1. Foreword:
2. Chaudhary Khalid Rasheed, J .--- The captioned petition has been preferred against the order passed by the learned Sessions Judge/Judge Anti-Terrorism Court, Mirpur dated 02.02.2026 qua applications filed by petitioners herein for summoning of Geo-Fencing/CDR data dated 21.04.2025 of the prosecution witnesses have been dismissed.
3. Precise facts of the case are, petitioners are facing trial in FIR No.75/2025 registered at Police Station City Bhimber in the offences under sections 302, 109 and 34-APC before Sessions Judge Mirpur. During trial the accused/petitioners filed three separate applications for summoning of Geo-Fencing/CDR data dated 21.04.2025 in respect of prosecution witnesses Nos.3, 4 and 5 in order to establish that they were not present on the place of occurrence at the time of incident. The learned Court below after hearing arguments, rejected the applications through the impugned order, hence the captioned revision petition.
4. STANCE OF THE PETITIONERS:
5. The learned counsel for the petitioners vehemently argued that mobile data/CDR of the prosecution witnesses Nos.3, 4 and 5 is likely to be deleted within a period of three months which is necessary to put to the prosecution witnesses in order to establish that they were not present on spot at the time of occurrence but the Court below failed to understand the controversy and wrongly rejected the applications through the impugned consolidated order, hence the same is not sustainable. The learned advocate placed reliance on 2022 PCr.LJ 59.
6. REFUTATION OF THE RESPONDENTS:
7. The learned counsel for the respondents supported the impugned order on all counts and prayed for the dismissal of the instant revision petition.
8. We have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.
9. COURT OBSERVATIONS AND RELEVANT LAW:
10. In criminal cases, the prosecution has to prove the guilt of the accused by producing cogent and convincing evidence and the accused is not expected to prove his innocence. In the instant case the stance taken by the accused are that the prosecution witnesses Nos.3, 4 and 5 who have been cited in the challan as eye-witnesses of the occurrence were not present on spot and in order to substantiate such stance the accused persons want to get summoned the Geo-Fencing/CDR data. Under section 94 of the Code of Criminal Procedure, 1898 the accused may require to produce any document etc. to shatter the credibility of prosecution witness, subject to satisfaction of the Court that production of such document or thing is necessary for just decision of the case. The court below has rejected the applications filed by the accused petitioners for summoning Geo-Fencing/CDR data on the ground that the same can be summoned at the time of defence evidence but not at the stage of prosecution evidence. The Supreme Court of Azad Jammu and Kashmir in 2024 SCR 863 while interpreting the provisions of section 94 of the Cr.P.C. has observed that there is no bar to produce any document/thing at the time of prosecution evidence rather the Court can exercise such powers at any stage of trial. The relevant observations recorded at page 869 are reproduced as under:-
11. "Section 94, Cr.P.C. is a dynamic provision of law and provides an opportunity to the accused to shatter the credibility of prosecution witness by requiring the production of documents or any other thing, necessary to ascertain the truthfulness of the criminal charge levelled against him. The only precondition to invoke this section is that he must satisfy the court that production of such document or thing is necessary for the just decision of the case. The scope of section 94, Cr.P.C. is very wide, and word "whenever" suggests that the Court can exercise its power conferred by this section at any stage of trial and there is no restriction that the production of any document or other thing can only be made only after completion of prosecution evidence. Furthermore, the CDR, which remains accessible for a limited time, may hold crucial information that could be lost if not summoned promptly. Timely production of such evidence during cross-examination can be critical to ensure a fair trial. In these considerations, we believe that the High Court has committed no illegality while passing the impugned order."
12. In such situation the observations recorded by the Court below while rejecting the applications being alien to law entail to show the doors.
13. Furthermore, under Article 164 of Qanun-e-Shahadat Order, 1984 the Court may allow to produce any evidence recorded by the Court through modern devices including CDR etc. however it depends upon the nature and circumstance of each case. Though a discretion of the Court which has to be cautiously exercised as the Courts are always expected to exercise discretion in a judicious manner and take steps to reach at a just conclusion in order to ensure a fair and square trial.
14. The prime argument advanced by the learned counsel for the accused petitioners that mobile data has to be lost in short span of time which is less than one year, has got no plausible substance rather flagrantly misconceived. Under section 32 of the Prevention of Electronic Crimes Act, 2016 a service provider shall retain its specified traffic data for a minimum period of one year, subject to production of a warrant issued by the Court, may provide that data to the investigation agency or the authorized officer whenever so required. Section 32 of the Prevsention of Electronic Crimes Act, 2016 is reproduced as under:-
15. "32. Retention of traffic data. (1) A service provider shall, within its existing or required technical capability, retain its specified traffic data for a minimum period of one year or such period as the Authority may notify from time to time and, subject to production of a warrant issued by the Court, provide that data to the investigation agency or the authorized officer whenever so required."
16. In the instant case, sufficient time has already been elapsed thus, if the relevant data is not summoned by the Court or no direction shall be issued to the relevant authorities to save the supra mentioned data then it appears a solid probability that an important piece of evidence is likely be vanished, hence, irrespective of the fact that the service provider is duty bound to retain said data for minimum period of one year, it deems appropriate that the required data should be summoned from the relevant quarters for appending it to the Court file so that the accused persons could not be deprived of getting a right of fair and square trial, which is a guaranteed fundamental right of all under trial accused persons.
17. DISPOSAL:
18. The sum and crux of the above debate is, the captioned revision petition is hereby accepted and the Court below is directed to summon the relevant data, made part of the record. The Court below is further directed to conclude the trial of the case within a span of six months positively.
19. JK/9/AJK HC Revision allowed.