FAROOQ HAIDER, J.: Through the above mentioned appeal filed under Section 48 of the Control of Narcotic Substances Act, 1997, vires of order dated 10.07.2019 passed by the learned trial Court, have been challenged with the following prayer: - "In the light of above humble submissions, it is most respectfully prayed that by accepting the instant appeal, set aside the impugned order dated 10.07.2019, and accept the application for summoning of Moharar of PS New Multan with record of rent agreement registered at number 427/15 as DW in the supreme interest of justice"
2. Brief facts of the case are that appellant being accused is facing trial in case arising out of FIR No.11/2016 dated 24.03.2016 registered under Sections 9 (c) & 15 of the Control of Narcotic Substances Act, 1997 at Police Station ANF, Multan; he moved an application for summoning of record of entry at Serial No.427/15 available in relevant Register maintained for mentioning "Rent Deeds" in Police Station New Multan alongwith Moharir of said police station in his defence but learned trial Court dismissed the same vide order dated 10.07.2019, relevant portion whereof is being reproduced: - "Record perused which reveals that the first statement recorded by the petitioner/accused finds fault with the plea taken by him in the instant application, he stated that at that moment that there was a cattle shed/Bhana. Meaning thereby , there was no house about which alleged tenancy agreement was executed and registered with the concerned police station; hence, the possibility cannot be ruled out that such tenancy agreement was prepared just to get benefit of the same by producing it in evidence to show that there was a house and even tenancy agreement was executed by someone else and not by the accused or his brother , thus court does not feel imperative to summon the above referred tenancy agreement from the custody of the police. The instant application being without any substance is dismissed"
Hence, this appeal.
3. It has been contended by learned counsel for the appellant that the impugned order is against the facts of the case and law on the subject, which resulted into grave miscarriage of justice to the appellant, as such, same is liable to be set aside.
4. On the other hand, learned Special Prosecutor for ANF has supported the impugned order by contending that there is no provision of law, which provides summoning of any evidence by the accused through Court. However , she has not raised any objection on production of document mentioned in the petition or any other document by the appellant in his defence without intervention of the Court.
5. Arguments heard. Record perused.
6. "Procedure regarding trial of cases triable by Courts of Sessions" is being dealt by Chapter-XXII-A contained in Part-VI of Code of Criminal Procedure, 1898 (Sections 265-A to 265-N); perusal of aforementioned chapter reveals that prosecution is bound to disclose its case against accuse d and court provides relevant documents including statements of witnesses to accused, free of cost not later than seven days before commencement of the trial, relevant portion of Section 265-C Cr .P.C. is being reproduced for ready reference: - "265-C - Supply of statements and documents to accused . (1) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely:
(a) the first information report;
(b) the police report;
(c) the statements of all witnesses recorded under S. 161 and 164, and
(d) the inspection note recorded by an investigating officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any; Provided that, if any part of a statement recorded under section 161 or section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused.
(2) In all cases instituted.........
(a) the complainant shall; (i).....
(ii).....
(b) copies of the......
Whereas accused is not bound to disclose detail of his case/ defence at initial stage of the trial rather Section 265- E Cr.P.C. envisages that accused is only to be asked at the time of framing of charge whether he is guilty or has any defence to make; for ready reference, relevant portion of Section 265-E Cr .P.C. is being reproduced: - "265-E. Plea (1) The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make"
Accused has every right to defend himself though within the parameters of law, and he can take a plea or more than one pleas in his defence. In support of his defence plea, accused even can get process issued for summoning evidence through Court and in this regard, Section 265-F(7) Cr.P.C. is holding the field, which is being reproduced for ready reference: - "(7) If the accused or any one or several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing"
Perusal of aforementioned provision of law reveals that Court can only refuse to issue process for compelling the attendance of any witness for examinati on or the production of any document or other thing, on the request of accused, if it considers that application is made for the purpose of vexation , delay or defeating the ends of justice provided that such ground shall be recorded by Court in writing but if such application is not hit by three conditions, mentioned above, then Court has to issue the process for summoning of said witness or production of any document or other thing. Needless to observe that Court cannot decline issuance of process on the ground that it will benefit the accused because every party intends and produces evidence for getting benefit of proving its plea/version. It goes without saying that there is remarkable difference among admissibility, relevance and evidentiary value of any piece of evidence because evidence may be admissible but not relevant for the issue, evidence may be admissible and relevant to the issue but of no evidentiary value; for the purpose of Section 265-F(7) Cr.P.C. i.e. issuance of process for summoning evidence, accused has only to show that evidence sought to be summoned is admissible and has some relevance; it is important to mention here that degree of relevance of proposed evidence is immaterial for exercising powers under Section 265-F (7) Cr.P.C. and a piece of evidence having prima facie even slightest degree of relevance has to be summoned if otherwise it is not hit by the exceptions mentioned in Section 265 F (7) Cr.P.C.; as far as question of discussing evidentiary value of such piece of evidence is concerned, suffice to say that it would be premature to discuss the same at said stage, rather same shall only be determined by trial Court while finally deciding the case. It is not out of place to mention here that Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 clearly emphasis "fair trial", which is being reproduced for ready reference: - "10-A. Right to fair trial. - For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process " (emphasis added)
Therefore, in view of Article 10-A of the Constitution it would be unfair to refuse issuance of process for summoning evidence on application of accused in his defence, by the Court, on the grounds, which are not covered by Section 265-F(7) Cr .P.C., mentioned above.
In this case, appellant while answering charge replied that he shall produce evidence in his defence, then during evidence of PWs he moved application for summoning record of said piece of evidence i.e. Record with respect to entry No.427/15, maintained at Police Station New Multan for incorporating Rent Deeds, which was dealt by learned trial Court vide order dated 19.02.2019, relevant portion of the order is being reproduced: - "The instant petition has been filed on behalf of the accused with the prayer to summon the record of Roznamcha from the period 24.03.2016 to 28.03.2016 of Police Station ANF, Multan as well as the Roznamcha of Police Station New Multan kept for incorporating the particulars of tenancy. At the very outset, learned SPP conceded that she has no objection, if, the record of the Police Station ANF, Multan is summoned as per dates mentioned in the petition and remaining record Police Station New Multan, Multan should have been produced at the time of record of evidence of the accused in defence. In view of the above partially the instant petition is accepted to the extent of summoning Roznamcha from 24.03.2016 to 28.03.2016 of Police Station ANF, Multan" (emphasis added)
Then during cross examination over PW-2 question was put on behalf of the accused to said witness in this regard, relevant portion whereof is being reproduced: - "It is not in my knowledge whether Shehb az Qureshi, brother of the accused namely Tanveer Qureshi had rented out a house to Zahid accused, due to which accused T anveer Qureshi was arrested by the IO"
Appellant/accused during recording of statement under Section 342 Cr.P.C. clearly stated that he wants to produce evidence in his defence and said fact is mentioned in interim order dated 2.7.2019, appended with this appeal; then after entering into his defence, he again moved an application for summoning of record of Police Station New Multan with respect to entry at Sr. No.427 /15 qua Rent Deed alongwith concerned Moharir , in his defence but said application has been declined vide impugned order dated 10.07.2019, mentioned above.
In the above given circumstances, it has been observed that aforementioned record of entry No.427/15 has prima facie some relevance with the allegation leveled in the case against accused and Moharir of concerned Police Station is custodian of said record, therefore, issuance of process by Court for summoning of aforementioned record alongwith its custodian i.e. Mohar ir for evidence in defence of accused/appellant would be necessary and quite in accordance with spirit of law contained in Section 94 and 265-F(7) Cr.P.C.; it would also ensure fair trial to the accused within the meaning of Article 10-A of the Constitution of Islamic Repub lic of Pakistan, 1973. Nutshell of the above discussion is that impugned order has been found not only against the express provisions of law i.e. Sections 94 and 265-F(7) Cr.P.C. but also in direct conflict with the Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which guarantees fair trial to the accused.
7. In view of what has been discussed above, instant appeal is allowed, impugned order dated 10.07.2019 is set aside, as a consequence thereof, application filed by the appellant for summoning of record of entry No.427/15 maintained at Police Station New Multan about Rent Deeds alongwith its custodian i.e. Moharir of Police Station New Multan for evidence in defence of accused/appellant is allowed and learned trial Court shall issue process for summoning of aforementioned record alongwith above said Moharir accordingly and proceed in accordance with law.