IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Misc. Application No. 128
of 2024
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE |
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Khadim Hussain Tunio
14.02.2024
Mr.
Iftikhar A. Shah advocate for the applicant
Mr. Khadim Hussain Addl. P.G
-.-.-.-.-.-.-.-.
NAIMATULLAH PHULPOTO, J.- Through
this Criminal Misc. Application, applicant/accused Muhammad Ramzan has called
in question order dated 04.01.2024 passed by learned 1st Additional
Sessions Judge, Karachi West in Special Case No. 801/2024.
2. Notice was issued to the Prosecutor
General Sindh.
3. Learned advocate for the
applicant/accused mainly submits that defense of the applicant/accused is based
upon call data record of mobile Nos. 0313-8004146 and 0311-8874964 for the
period between 22.10.2023 to 26.10.2023. It is submitted that call data record
is normally saved by telecommunication companies for a period of 03 to 06
months, if it is deleted, serious prejudice shall be caused to the
applicant/accused in his defense on the conclusion of trial.
4. Record reflects that learned trial
Court dismissed an application under Section 94 Cr.P.C moved by the
applicant/accused mainly for the following reasons:
“09. Lastly, another aspect deserving
consideration in this order pertains to the nature of our legal system.
Permitting applications of this nature would inevitably contribute to the delay
in resolving cases within our already overburdened courts. As part of the
Common Law Jurisdiction our courts adhere to an adversarial rather than an
inquisitorial model. In the adversarial system, the involved parties actively
present evidence and arguments before an impartial third party, typically a
judge, who subsequently renders a decision. This framework is built on the
foundational principle of legal equality between the prosecution and defense,
with each side vigorously advancing its stance. In my humble opinion, during
the initial stage, when the charge was yet to be framed, the judge should
abstain from probing inquiries into the guilt or innocence of the accused. The
CDR and NADRA records sought in this premature phase could potentially favor
the accused disfavor the prosecution. Granting the application could also set a
precedent, allowing defense lawyers to file similar requests for materials
favoring the accused and burdening the court with another additional task of
probing inquiry, thereby weakening the prosecution’s case at the very outset of
proceedings. This scenario is neither necessary nor advisable at this early
juncture, especially considering that the present application was submitted
prior to the framing of charges.
5. Counsel for the applicant/accused
submits that he would be satisfied if directions are issued to NADRA Karachi
and I.O of Crime No. 350/2023 PS Jackson to collect call data of above cellular
phones and keep in safe custody as applicant/accused intends to produce the
same before trial Court in his statement under Section 342 Cr.P.C. In support
of his submissions, he relied upon Muhammad
Asif Ali Usama vs. The State and 2 others (2022 P.Cr.L.J 59).
6. Addl. P.G recorded no objection.
7. In the view of above, Criminal Revision
Application is disposed of with direction to NADRA Karachi and I.O of aforesaid
crime to collect the call data of above cellular phones for the period in
between 22.10.2023 to 26.10.2023. Applicant/accused may produce the said call
data before trial Court at the time of recording his statement under Section
342 Cr.P.C. However, such piece of evidence shall be considered by trial Court
strictly in accordance with law.
JUDGE
JUDGE
Wasim
ps