2002 S C M R 468

[Supreme of Pakistan]

Present: Muhammad Bashir Jehangiri and Munir A. Sheikh, JJ

ABDUL HAMID MIAN---Petitioner

versus

MUHAMMAD NAWAZ KASURI---Respondent's

Criminal Petition for Leave to Appeal No.186-L of 1999, decided on

26th, May, 2000.

(On appeal from the judgment, dated 15-3-1999 of the Lahore High
Court, Lahore passed in Criminal Revision Petition No.228 of 1998).

Criminal Procedure Code (V of 1898)---

----Ss. 540, 241-A & 94---Penal Code (XLV of 1860), Ss. 497 & 498
[since repealed]---Constitution of Pakistan (1973), Art.
185(3)---Production of documents---Complainant while making his
statement in his private complaint wanted to bring on record a number
of documents, but the Trial Court returned the documents by observing
that the same were not relevant----Complainant then filed an application
in which 22 documents were listed which he wanted to be received in
evidence---Trial Court dismissed the said application against which a
revision petition filed by the complainant had also been dismissed by
the High Court through the impugned judgment-- View taken by Trial
Court that the only provision in the Criminal Procedure Code as regards
production of additional evidence was S. 540, Cr.P.C. as such the
documents could not be allowed to be produced, amounted to refusal to
exercise jurisdiction otherwise vested in the Court---Provisions of the
Criminal Procedure Code such as S.241-A, Cr.P.C. under which the
complainant could rely on documents, had been added through
amendment in the year 1972 after the tiling of the complaint, therefore it
was unjust to hold that the complainant was debarred from producing
documents at a subsequent stage, because when the complaint was filed
the complainant was not required to attach all the documents alongwith
it, therefore, his omission to file the same at that point of time could not
by itself be used against him to hold him responsible for not producing
the documents at the relevant time as required by law---Insertion of
S.241-A, Cr.P.C. enabled the complainant to file documentary evidence
with complaint with the only requirement that he would supply the
copies of the same to the accused---Chapter VII of the Code of Criminal
Procedure, particularly its S.94 had revealed that the Court was vested
with the power to entertain and allow production of documentary
evidence during the trial, inquiry etc., therefore it was not correct that
the only provision in the Criminal Procedure Code empowering the
Court to record additional evidence by recalling witness was S.540,
Cr.P.C., which had resulted in failure of the Court to exercise
jurisdiction vested in it under the law---Recording of objection of the
defence counsel in the proceedings that documents sought to be
produced were inadmissible did not amount to an order passed by the
Court as it did not record its findings holding the said documents to be
inadmissible or irrelevant---Assumption by High Court that the same
was an order which had attained finality, therefore, was not
tenable---Case of the complainant regarding production of the
documents in question in evidence had not received proper adjudication
about their admissibility and relevancy by the Courts below---Petition
for leave to appeal was converted into appeal in circumstances by the
Supreme Court and the aforesaid observation of the Trial Court and the
impugned judgment of the High Court were set aside with the direction
to the Trial Court to decide afresh the request of the complainant as
regards production in evidence of the documents in the light of the
observations made by Supreme Court and thereafter to proceed with the
case.

Birjees Nagi, Advocate Supreme Court for Petitioner.

S.M. Nazim, Advocate Supreme Court for Respondent.

Date of hearing: 26th May, 2000.

JUDGMENT

MUNIR A. SHEIKH, J.---This petition for leave to appeal is directed

against the judgment, dated 15-3-1999 of the Lahore High Court,
Lahore through which Criminal Revision Petition No.228 of 1998 filed
by the petitioner against the orders dated 31-1-1989 and 6-2-1989 of the
District Magistrate and the learned Sessions Judge, respectively has
been dismissed.

2. The facts giving rise to this petition for leave to appeal shortly stated
are that the petitioner filed a private complaint against the respondent
under sections 497 and 498, P.P.C.,' in the year 1972 which remained
pending in various Courts. Learned counsel for the respondent does not
deny that after recording the preliminary evidence, the respondent was
summoned to face the trial. On 13-1-1989, the statement of the
complainant was being recorded when he wanted to produce some
documents in evidence. He also expressed his wish to explain those
documents in his statement to which an objection was taken by the
learned counsel for the respondent for which the matter 'was adjourned
to 6-2-1989. In the meantime, the case was transferred to the Court of
learned Sessions Judge, Lahore. On 6-2-1989, while making the
statement, the complainant-petitioner wanted to bring on record a
number of documents but the Court returned those documents by
observing that the same were irrelevant. Another document was sought
to be produced which was marked 'B' by the trial Court but was not
exhibited as learned defence counsel objected to its admissibility.

3. On 16-2-1989, the petitioner filed an application for exhibition of

documents on the plea that the Court could not have rejected the same
and the documents merited to be received in evidence. On 13-11-1994,
however, the petitioner closed his evidence and his counsel made a
statement that application dated 16-2-1989 being incomplete, he would
move a fresh application. The fresh application was filed on 15-11-1994
in which 22 documents were listed which the complainant wanted to be
received in evidence. This application was contested by filing reply. It
was urged in defence that at that stage, the said documents could not be
allowed to be brought on record and the same were also inadmissible. It
was also urged that the orders of the District Magistrate dated 31-1-1989
and learned Sessions Judge dated 6-2-1989 had attained finality and in
the presence of the said orders, the said documents could not be
received in evidence. Through order dated 26-5-1998, the learned
Sessions Judge i.e., the trial Court dismissed the said application dated
15-11-1994 against which revision petition filed by the petitioner has
been dismissed through the impugned judgment dated 15-3-1999 by a
learned Judge in Chamber of the Lahore High Court against which leave
to appeal has been sought.

4. Learned counsel for the petitioner argued that there was no order
passed by the District Magistrate on 31-1-1989 as the said Court merely
recorded the objection raised on behalf of the defence as to admissibility
of the documents during the recording of statement of the complainant
when documents were sought to be produced. As to order dated
6-2-1989, it was argued that the same was no order in the eye of law as
the learned Sessions Judge did not state any reasons with reference to
these documents keeping in view the provisions of law under which the
respondent was being prosecuted. It was maintained that it did not
amount to a judicial order which could close the right of the
complainant to make application for bringing on record the documents
and get a speaking judicial decision in the matter, therefore, the
petitioner could not be deprived of the opportunity of getting his case
decided as to relevancy or admissibility of those documents by a
speaking order which is the least requirement of law.
5. We have noticed that the learned Sessions Judge vide order, dated
26-5-1998 impugned in the criminal revision petition before the High
Court rejected the application mainly on the ground that the Court had
no power to allow the complainant to produce documents at that stage,
for the only enabling provision in the Criminal Procedure Code
empowering the Court to receive additional evidence was section 540
which permits only the examination of a witness and does not speak of a
document. The learned Judge in Chamber of the High Court has,
however, proceeded on the assumption that recording of objection of the
defence counsel in the proceedings dated 31-1-1989 when some
documents were sought to be produced that the same were irrelevant,
was an order passed by the Court which had according to him, attained
finality and also held that order, dated 6-2-1989 returning the documents
as irrelevant had attained finality assuming as it was a. judicial order in
the presence of which the Court was not vested with the power to allow
the production of documents at that stage which is permitted, would
amount to reviewing the said orders dated ,31-1-1989 and 6-2-1989.
The reasons, however, recorded by the Trial Court in the order, dated
26-5-1989 impugned in the criminal revision petition that it had no
power to allow the complainant to produce documentary evidence under
the Criminal Procedure Code assuming as if the only provision existing
in the Criminal Procedure Code was section 540 which permits only the
recalling of a witness and not production of documents were neither
attended to nor disposed of.

6. The view taken by the trial Court that the only provision in the
Criminal Procedure Code as regards production of additional evidence
was section 540, as such, the documents could not be allowed to be
produced, amounts to refusal to exercise jurisdiction otherwise vested in
the Court. A number of provisions of the Criminal Procedure Code such
as section 241-A, Cr.P.C., under which the complainant could rely on
documents and append copies thereof to be supplied to the accused
person. This section was added I through amendment in the year 1972
after the filing of the complaint, therefore, it would be unjust to hold
that the complainant was debarred from producing documents at a
subsequent stage, for when the complaint was filed in this case, the
complainant was not required to attach all the documents alongwith it,
therefore, his omission to file the same at that point of time could not by
itself be used against them to hold him responsible for not producing the
documents at the relevant time as required by law. The insertion of
section 241-A, Cr.P.C. enables the complainant to file documen tary
evidence with the complaint, for the law makers made their intention
expressly clear that documentary evidence in support of a complaint
could be allowed to be produced at the instance of the complainant. The
only require ment was that copy of the same was to be supplied to the
accused person.
7. We have noticed from the copies of the proceedings produced in this
petition that while declining the request of the complainant to produce
documents in his statement, an observation has been made by using the
words 'preliminary evidence' as if the statement was being recorded at
the preliminary stage before the summoning of the accused person
whereas his statement was being recorded during the trial of the
respondent as he had already been summoned by the Court to face trial.

8. The reasonings given by the trial Court that it was not vested with the
power to allow production of documents at that stage are not supported
by law. A study a Chapter VII of Criminal Procedure Code and in
particular section 94, etc., reveal that the Court was vested with the
power to entertain and allow production of documentary evidence
during the trial, inquiry, etc., therefore, it was not correct that the only
provision in the Criminal Procedure Code empowering the Court to
record additional evidence by recalling witness was section 540,
Cr.P.C., which resulted in failure of the Court to exercise jurisdiction
vested in it under the law. We are in agreement with the learned counsel
for the petitioner that recording of objection of the defence counsel in
the proceedings that 31-1-1989 that documents sought to be produced
were inadmissible did not amount to an order passed by the Court as the
record of the proceedings reveals that the Court did not record its
findings and pass an order holding the said documents to be
inadmissible or irrelevant, therefore, assumption of the learned Judge in
Chamber of the High Court that the same was an order and therefore,
had attained finality is I not tenable. As regards order dated 6-2-1989 by
which the trial Court mechanically returned the documents by observing
that the same were irrelevant in our considered view is no order in the
eye of law and could not be made basis for debarring the petitioner from
exercising his right of making application for the consideration of the
Court by application of judicial mind by examining each document and
then to decide about their relevancy or admissibility. The Court is
required to pass a speaking order after application of judicial mind to
each document with reference to the facts of the case by expressing the
opinion as to how they were considered to be irrelevant or inadmissible
which having not been done, therefore, the said order could neither be
held to disentitle the complainant to get a judicial decision when a
formal application enlisting the documents had been filed nor the Court
was divested of the powers to pass fresh order. The case of the
complainant as regards production of those documents in evidence did
not receive proper adjudication as regards their admissibility and
relevancy by any of the Courts, therefore, we are not inclined to uphold
the order passed by the Trial Court and the impugned judgment of the
learned Single Judge of the High Court, for if the same are maintained,
it, would amount to perpetuate an illegality.
9. When asked, learned counsel for the respondent has admitted that the
statement of the respondent/accused person has not yet been recorded,
therefore, the Court should have passed order based on reasons as
regards the question of admissibility and relevancy of the said
documents and if found admissible or relevant by giving reasons after
examining each document with reference to the facts of the case, the
copies of the same could be delivered to the accused person to make his
defence plea in the light thereof. In case the documents are held to be
neither relevant nor admissible, request for production of the same in
evidence shall be rejected by reasons the same would end the
controversy leaving the parties or any of them if aggrieved by the order
to challenge the same in further proceedings in appeal against final
judgment as the case may be.

10. Since we have heard learned counsel for both the parties in detail,
therefore, this petition is converted into appeal and the same is accepted,
observation dated 6-2-1989, order dated 26-5-1998 made by the trial
Court and the impugned judgment dated 15-3-1999 passed by the
learned Judge of the High Court are set aside and the trial Court is
directed to decide afresh the request of the complainant as regards
production in evidence of the documents in the light of the observations
made above and thereafter to proceed with the case. As the case is
pending since 1972, therefore, the trial Court is directed to expedite the
proceedings and if possible proceed with same day to day and decide it
within a shortest possible period. There will, however, be no order as to
costs.

N.H.Q:/A-153/S Appeal allowed