MUHAMMAD IQBAL KALHORO, J. Petitioner standing a trial as an accused in Reference No.12 of 2014 at Karachi moved an application before the trial court raising an objection over admission and admissibility of 100 out of 133 documents which IO sought to produce in his evidence on the ground that they being Photostat copies are inadmissible in evidence. This application has been decided vide impugned order by, the trial Court holding, inter alia, that all these documents were seized by 10 through a seizure memo (Exh.27/1) and insofar as their relevancy and probative value is concerned, the same shall be decided after a full-fledged trial. Aggrieved by such a view, petitioner has filed this petition seeking, among others, a declaration to the same effect that all these documents being Photostat copies are inadmissible in evidence and therefore, shall be excluded from a consideration.
2. Learned defense counsel in support of his case has relied upon Articles 76, 78 and 158 of the Qanun-e-Shahadat Order, 1984 and the case law reported in 2018 SCMR 2092, PLD 1973 Hon'ble Supreme Court 160, PLD 1969 Hon'ble Supreme Court 477, 2003 PCr.LJ 1353, 1997 MLD 806, PLD 2011 Hon'ble Supreme Court 350 and PLD 1998 Karachi 86. He has further urged that Photostat copies of documents cannot be produced in evidence. At one point, in arguments, one of his associates submitted that the allegations against the petitioner are that he had prepared these documents.
As such it is incumbent upon the prosecution to first prove preparation of them by the petitioner and then to seek their production in the evidence. Learned defense counsel has further emphasized that under the ratio laid down by the Hon'ble Supreme Court in the case of Hidayatullah v. The State (2018 SCMR 2092) the trial Court was bound to decide the objection of petitioner first before proceeding further in the matter.
3. On the contrary, learned Special Prosecutor, NAB has submitted that the case does not involve a question of primary or secondary evidence in, the shape of Photostat copies of documents instead of original ones as the prosecution is seeking production of documents which at the time of arrest of petitioner were recovered from him by IO.
4. We have considered contentions of the parties and perused the material available on record.
There is no cavil to the proposition that whenever an objection is raised by the defense over admissibility of some evidence sought to be produced in the trial, the Court is bound to decide it first before proceeding further and that it shall abstain from deferring the same for a decision to be made at the time of judgment. But at the same time we may respectfully observe that the question of deciding or otherwise of such an objection is not before us in stricro sensu. For firstly such objection has been decided and overruled by, the trial court through the impugned order and secondly the objection does not appear to be over production of the Photostat documents but the merits obtaining in the trial in the wake of such production, which the court, in our humble view; is not required to look at in the middle of the case until such a time calling for such an outlook.
5. The question whether the Photostat documents can be construed reliable, relevant and sufficient having probative value to establish the charge against the accused is altogether different than the question whether or not the Photostat documents, in presence of original ones or in absence of an explanation about their missing, can be allowed to be admitted in the evidence. If a document that otherwise cannot be admitted in the evidence is sought to be admitted in the evidence, and the defense is raising objection over it. It would be duty of the court to decide it first before taking on further proceedings. Notwithstanding, if the objection being raised is to hit merit of the document to be reliable, etc. or manner of its recovery, as was argued here, having an impact of prejudicing outcome of the case prematurely against or in favour of either party, the court is not required to decide the same then and there while recording the evidence. These two situations are dissimilar to each other in the context and implication in law. One entails an immediate attention of the court so that inadmissible evidence is held back at the very inception with a view to avoid misperception and unnecessary burden, whereas the other one necessitates a detailed analysis combined with entire evidence adduced to be adduced by the prosecution for rendering a definitive opinion about its qualification. The court is not allowed to indulge in such exercise summarily while recording the evidence, particularly when any such approach is understood to have likely trappings of compromising merits of the case prematurely in favour of either party.
6. It may also be noted in addition that the question of producing primary or secondary evidence in the trial and its admissibility in the context being discoursed here would be relevant when he prosecution makes a claim of recovery of original documents but at the time of evidence produces Photostat copies without furnishing any explanation about missing, etc. of the original ones as required by the law. Here the charge itself against the petitioner is of recovery of Photostat copies from him at the time of his arrest. How then prosecution can be stressed to produce the original ones or furnishes an explanation about missing etc. thereof. Recovery of documents from the petitioner which are Photostat is what the prosecution case is and therefore it eludes comprehension to thwart prosecution from producing the same. Their evidentiary value and reliability as incriminating evidence, different then the question of their admissibility in evidence, is not required to be discussed or decided at the time of their production in the evidence.
7. The way the case was pleaded before us, we gathered an impression that the defense was more concerned about merits of documents constituting as such and manner of their recovery rather than their admissibility in evidence, as we found an apparent overtone in their contentions to lead us to consider such merits and decide the same. But neither such merits are before us nor can we while exercising constitutional jurisdiction in a different issue embark upon such an exercise. The petitioner has adequate remedy for such purpose before the trial court, which he may avail if so advised.
For foregoing discussion, we do not find any merit in the case and dismiss it accordingly along with all pending applications.