' Through this single order, we intend to decide instant writ petition filed by Abdul Razzaq, the accused and Writ Petition No. 9789 of 2015 filed by Altaf Hussain, the complainant as both these matters have arisen out of same F.I.R. No. 616 dated 28.11.2013 for offence under Sections 302 and 365-A P.P.C., registered at Police Station Chowk Azam, District Layyah.
2. The brief facts of the matter are that Abdul Razzaq, the petitioner in W.P. No. 10465 of 2015 was booked in the aforesaid F.I.R. And is facing the trial for abduction and murder of Muhammad Umar aged about six years who is the son of the complainant. He submitted an application under Section 540, Cr.P.C. Before the learned trial Court to summon Call Data of Mobile Phone Nos. 0302-6767991 of Zafar Iqbal (PW-2), 0346-2298893 of Altaf Hussain (PW-1) and 03443687306 of Muhammad Riaz Hussain (PW-3) pertaining to the period dated 23.11.2013 to 29.11.2013 and the date of the Mobile Phone of Naseeb Ullah Bearing No. 0344-8555990 for the period dated 15.12.2013 at 5:15 P.M. This, application was turned down by the learned trial Court vide order dated 18.02.2015. Aggrieved of the said order, Abdul Razzaq, the petitioner filed Writ Petition No. 2559 of 2015 before this Court which vide order dated 30.03.2015 was allowed and the order impugned therein was set aside. Now the petitioner impugns the order dated 03.07.2015 passed by the learned trial Court whereby an application filed by the petitioner for correction of some paras of SOP "Mark-A" was rejected in violation of this Court's order dated 30.03.2015 and it is prayed that the impugned order may be set aside and trial Court may be directed to implement the order dated 30.03.2015 passed by this Court in W.P. No. 2559 of 2015 in letter and spirit. On the other hand, complainant/petitioner in Writ Petition No. 9789 of 2015 has prayed for a direction to the learned trial Court for early conclusion of the trial to meet the ends of justice.
3. The learned counsel for the petitioner in Writ Petition No. 10465 of 2015, inter alia contends, that the learned trial Court has not complied with the direction contained in order dated 30.03.2015 passed by this Court in W.P. No. 2559 of 2015; that the plea taken by the cellular companies regarding their inability to produce the record of CDR for more than one year is not worth relies; that the fair trial is a right of every accused as guaranteed in the constitution; that without obtaining the desired data from the concerned cellular companies, the trial proceedings would be a futile exercise; that it is case of heinous nature and the petitioner has every right to prove him innocent by producing the evidence favouring him; that the impugned order is a colorful exercise of authority by the learned trial Court which suffers from gross illegalities or irregularities. Lastly, prays that the impugned order may be set aside.
4. The learned counsel appearing on behalf of complainant/ petitioner in W.P. No. 9789 of 2015 contends, that trial proceedings are being prolonged due to the delaying tactics adopted by Abdul Razzaq, the accused; that the learned trial Court has already adopted the entire procedure and recorded the evidence to conclude the trial. The case is now fixed for final arguments but filing of frivolous application on behalf of the accused is nothing but to linger on the trial. Finally craves that the learned trial Court may be directed to conclude the trial expeditiously.
5. The learned Assistant Advocate General has adopted the arguments advanced by the learned counsel for the petitioner Altaf Hussain.
6. We have heard the learned counsel for the petitioner, learned counsel for respondent, AAG and also gone through the record.
7. Perusal of record available on file reveals that the complainant received calls on his Cell Phone, demanding a ransom of Rs. 20,00,000/- for the return of his missing child. Similarly, Zafat Iqbal (PW-2) made a statement regarding his mobile phone (Exh. P.1) and SIM No. 0344-3687306 (Exh.
P.2). In the same way, Inam ul Haq, P.W-12, who was posted as ASI/In charge Crime Sceme, DPO Office, Layyah in 2013 testified on oath about C.D.R consisting of 27 pages, which were exhibited as Exh.P.6/1 to 27. When the prosecution has employed the modern device and adopted sophisticated technique to connect the petitioner with the commission of the offence, the petitioner has got every legitimate right to prove himself innocent by using the same device/CDR for the period of his choice. It goes without saying that the dispensation of justice is to be treated even-handed and under no circumstances it should be allowed to be tipped in favour of one party at the costs of the other.
8. It is pertinent to mention that the provisions of Section 540, Cr.P.C. As under:--
9. Power to summon material witness or examine person present:-- "Any Court may, at any stage of any inquiry, that or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, through not summoned as a witness, or re-call and reexamine may person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case.
9. Apart from the provisions of Section 540, Cr.P.C., Section 94 Criminal Procedure Code, 1898 is also relevant in the context of this case. It would be expedient to reproduce sub-section (1) thereof, which reads as under:-- "94. Summons to produce document or other thing.--(1) Whenever any Court, or any officer in charge of a Police Station considers 'that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officers a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, at the time and place stated in the summons or order."
10. From the bare reading of the above said Sections, it is crystal clear that an application under Section 540, Cr.P.C., mere on the ground that the same has been moved to delay the trial is not a valid ground in the eyes of law to reject the same. As for the apprehension of the learned trial Court that some of the Call Data Record relates to those witnesses who have already been examined and the same could not be confronted with the same, suffice it to observe that they might be re- summoned and re-examined by the prosecution so as to provide them an adequate opportunity to explain their conduct and point of view with regard to the C.D.R in question. As such, the course followed by the learned trial Court would strike a balance between the prosecution and the defense. Needless to say, that the raisin deter of the Courts is to dispense justice and to strive hard to get the truth rather than rushing through the trials/cases.
11. For what has been discussed above, Writ Petition No. 10465 of 2015 filed by Abdul Razaq is allowed by setting aside the order dated 03.07.2015 passed by the learned Judge Anti-Terrorism Court, Dera Ghazi Khan. Resultantly, the application moved by the petitioner under Section 540, Cr.P.C. Before the learned trial Court is accepted with the result that the above-said PWs be summoned in accordance with law.
12. However, Writ Petition No. 9789 of 2015 filed by the petitioner (complainant) Altaf Hussain is disposed of with a direction to the learned trial Court to expedite the trial of the case and decide the same expeditiously.