During recording of evidence in trial of case FIR No.154 of 2013 registered under sections 384, 365-A, Pakistan Penal Code, 1860 read with section 7 of The Anti-Terrorism Act, 1997 at Police Station Jalal Pur Sharif, District Jehlum, the learned Deputy Distt. Public Prosecutor submitted two applications: one for summoning of Muhammad Amjad and Umer Hayat, S.I. As witnesses and the other for summoning of original challan of cases FIR No.18 of 2014, FIR NO.9 of 2014 and FIR No. 10 of 2014, all registered under Section 13 of Pakistan Arms Ordinance, 1965 at Police Station Jalal Pur Sharif, District Jehlum. The said applications were contested by the opposite side. The learned trial court after hearing arguments from both sides decided both applications vide single order dated 12-5- 2014 whereby application filed under section 540, Cr.P.C. For summoning of Muhammad Amjad and Umer Hayat S.I. Was accepted while the other application for summoning of challans of referred above FIRs was dismissed. Thereafter during recording of evidence of Umar Hayat, Sub- Inspector and Nausherwan, Head Constable as P. Ws. 8 and 9 the learned D.D.P.P. Tendered carbon copies of recovery memos. In evidence to prove recovery of illicit arms original being part of challans of other cases but the same were, not accepted by the learned trial Court. Hence this petition.
2. Although service of notice issued by this Court has been affected upon respondents Nos.1 and 2 who are confined in District Jail, Jehlum through Deputy Superintendent of said jail as per report of the Process Server available on file, but no one is in attendance on their behalf to oppose this petition.
3. Learned Law Officer submits that the learned trial Court dismissed the application for summoning of original record of the above said FIRs without any cogent reasons; that it was necessary for the prosecution to prove its case against the accused persons and for that purpose refusal of summoning the challan cases of FIRs mentioned above (trial of which was pending before the learned Judicial Magistrate, Pind Dadan Khan) is alien to law; that even otherwise the carbon copies of recovery memos of weapons (kalashinikov and machine gun) recovered in the said cases which were attached with the challan of this case could be exhibited in evidence in view of Article 46 read with Articles 73 to 76 of the Qanun-e-Shahadat Order, 1984 and so the learned trial court unlawfully refused to accept in evidence the carbon copies of the said recovery memos.
Places reliance on Muhammad Yasir v. The State (PLD 2008 Lahore 523).
4. Arguments heard and record perused.
5. During the trial of the case, the learned Deputy Distt. Public Prosecutor requested the learned trial Court to summon original records of the challans of above-stated FIRs. Which was refused: Thereafter the learned Deputy Distt. Public Prosecutor tendered in evidence carbon copies of afore said recovery memos. But the said request was turned down by the learned trial Court on the ground that earlier application for the said purpose filed by the prosecution has been dismissed on 12-5-2014 which has not been challenged so far before any higher forum so, had attained finality and secondly, the prosecution has not sought any permission to produce secondary evidence. We are afraid this finding of the learned trial Court is not sustainable. It is established law that carbon copies of the documents if made by a uniform process in furtherance of performing official duty is admissible in evidence being primary evidence. The learned trial Court, therefore, should have accepted the carbon copies of the recovery memos. In evidence as primary evidence and if there was some irregularity or the same were blotched, as a matter of abundant caution the learned trial Court could have requisitioned the record of challans in which originals were available. Reference in this regard may be made to the case reported as Prithi Chand v. State of Himachal Pradesh (1990 MLD 1389) and Shera and 4 others v. The State (PLD 1970 Lahore 735). The refusal of learned trial Court to accept the carbon copies in evidence has caused serious prejudice to the prosecution who has all the right to prove its case.
6. In this view of the matter, this petition is accepted; the impugned orders whereby application of the petitioner for summoning original challans of the above-mentioned FIRs was dismissed as well as the order of refusal to grant permission to tender in evidence carbon copies of the recovery memos. Are set aside and the prosecution is allowed to tender in evidence carbon copies of the recovery memos. Of weapons and the learned trial Court shall exhibit the memos after comparison with the originals.