AURANGZEB, J. Through this single judgment, I intend to decide the instant criminal appeal and criminal appeal bearing No.357-P/2025 titled "Wajahat Ali Shah Vs. State", as in both these appeals, the appellant has called in question the order dated 12.03.2022 passed by the learned Judge Special Court (CNS-II), Peshawar, whereby, the applications of the accused/appellant filed under Section 94 read with Section 540 Cr.P.C were dismissed.
2. The facts forming part of this appeal are that the appellant has been arrested by the ANF officials and he is behind the bars since his arrest. After framing of charge, the accused/appellant submitted applications under Section 94, read with Section 540 Cr.PC for the summoning of witnesses and for requisitioning the relevant record of the case, which was necessary for just decision of the case. However, his applications were dismissed vide order dated 12.03.2025 by the trial Court, hence this and the connected appeal.
Learned counsel for the appellant contended that Section 94 Cr.P.C allows the accused to apply for the production of any necessary documents, at any stage of the trial, not just during the defense.
He further contended that documents not supplied under Section 265-C Cr.P.C can still be obtained through Section 94 Cr.P.C, especially if they are vital for cross-examination or disproving the prosecution. Section 265-F (7) Cr. P.C does not override Section 94 Cr.P.C but offers a. supplementary right during the defense stage. Under Section 540 Cr.P.C, the court must summon any witness necessary to reach the truth, even if not listed. A proper statement under Section 342 Cr.P.C is only possible when the accused is fully informed of the evidence, which includes access to all relevant documents. Learned counsel for the appellant has requested to allow the applications filed by the appellant.
4. On the other hand, learned counsel for the respondents contended that Section 265-C Cr.P.C limits the obligation of the prosecution to provide only those documents that are part of the police report, allowing frequent application under Section 94 Cr.P.C could cause delays, misuse, or disruption in trial proceedings. He further contended that Section 265-F (7) provides the appropriate stage for the accused to bring in their evidence; invoking Section 94 Cr.P.C too early may be premature. The Court's power under Section 540 Cr.P.C is discretionary and not meant to assist the accused in fishing for evidence. The statement under Section 342 Cr.P.C is based on material brought on record; additional documents not part of the trial record may not always be necessary, and requested for dismissal of the appeals filed by the appellant.
5. I have heard the learned counsel for the parties and examined the record of the case. The questions of law that emerged from the arguments of the parties are as under:- i How does Section 94 Cr.P.C empower both the prosecution and the accused to seek production of the documents during trial, and in what way does this provision operate independently of Section 265-C Cr.P.C and Section 265F(7) Cr.P.C? ii. In what manner do Section 540 Cr.P.C and Section 342 Cr.P.C ensure a fair trial for the accused, and how is their effective application linked with timely access to documents and evidence under Section 94 Cr.P. C? iii. Critically analyze the interplay between Section 94, 265-C, 265-F, 540, and 342 Cr.P.C in light of the Supreme Court's judgment. How do these provisions collectively safeguard the accused's right to prepare a defence and ensure a fair and complete trial process?
6. In the realm of criminal justice in the country, procedural fairness and judicial discretion are crucial in ensuring that the trial process remains just and transparent. The Criminal Procedure Code, 1898, provides a comprehensive mechanism through which Court operate at different stages of investigation and trial, among its provisions, Section 94, 96, 265-C, 265-F, 540, and 342 Cr.P.C, play a significant role in safeguard the right of the accused, assisting the prosecution in evidence collection, and guiding the Court in conducting a fair trial. To understand the procedure provided by the Criminal Procedure Code, it is essential to discuss the above provision. Firstly, Section 94 Cr.P.0 is reproduced as under for ease of ready reference:- "94. Summons to produce document or other thins': (1) Whenever any Court, or, any officer incharge 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 officer 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 or to produce it, at the time and place stated in the summons or order: Provided that no such officer shall issue any such order requiring the production of any document or other thing which is in the custody of a bank or banker as defined in the Banker's Books Evidence Act, 1891 (XVII of 1891), and relates, or might disclose any information which relates to the bank account of any person except--
(a) for the purpose of investigating an offence under Sections 403, 406, 408 and 409 and. Sections 421 to 424 (both inclusive) and Sections 465 to 477-A (both inclusive) of the Pakistan Penal Code, with prior permission in writing of a Sessions Judge ; and
(b) in other cases, with the prior permission in writing of the High Court.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed to affect the Evidence Act, 1872, Sections 123 and 124, or to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the Postal or Telegraph Authorities".
Section 94 Cr.P.C empowers a Court or any officer incharge of a police station to issue a summons to any person to produce a document or material evidence that may be necessary for an investigation, inquiry, trial, or other proceedings. The essential requirement under this Section is that the Court must have a reason to believe that the document or thing exists, and is in the possession or control of the person being summoned. The destination or object of this provision is to facilitate the collection of documentary or physical evidence necessary to establish the truth. It ensures that relevant records or articles are available to assist the Court in adjudicating the case.
Courts are advised to exercise this power judiciously, ensuring it is not used for fishing inquiries or to harass the accused.
7. Section 96 Cr.P.C complements Section 94 Cr.P.C and comes into play when a person does not comply with a summons or when the Court is satisfied that the issuance of a summons would not be effective. Under this provision, the Court may issue a search warrant authorizing a police officer to search and seize the document or item. Section 96 Cr.P.C is reproduced as under for ready reference: "96. When search warrant may be issued: (1) Where any Court has reason to believe that a person to whom a summons or order under Section 94 or a requisition under Section 95, sub-section (I), has been or might be addressed, will not or would not produce the document or thing as required by such summons or requisition, or where such document or thing is not known to the Court to be in the possession of any person, or where the Court considers that the purposes of any inquiry, trial or other proceedings under this Code will be served by a general search or inspection, it may issue a search-warrant; and the person to whom such warrant is directed, may Search or inspect in accordance therewith and the provision hereinafter contained".
The requirement of Section 96 Cr.P.C is that there should be a reasonable belief that the document or item is relevant and necessary for proceedings, and is either being concealed or will not be produced voluntarily. The purpose of this Section is to ensure that evidence is not lost, destroyed, or kept hidden by .a party. Judicial guidelines emphasize that warrants under this Section must not be issued mechanically. The Court must apply its mind, record reasons, and ensure that the warrant is specific to prevent abuse of power.
8. Section 265-C Cr.P.C safeguard the fundamental right of the accused to a fair trial, it requires that the accused be provided with copies of the first information report (FIR), statements recorded under Section 161 and 164 Cr.P.C and other relevant documents, free of cost and well before commencement of the trial. Section 265-C being relevant is reproduced as under:- "265-C. Supply of statements and documents to the 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 reports
(b) the police report;
(c) the statements of all witnesses recorded under Sections 161 and 164; and
(d) the inspection note recorded by an investigation officer on his first visit, to the place of occurrence and the note recorded by him on recoveries made, if any: Provided that, If arty part of a statement recorded under Section 161 or Section 464 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 upon a complaint in writing
(a) the complainant shall-
(i) state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of the evidence which he is likely to adduce at the trial; and
(ii) within three days of the order of the Court under Section 204 for issue of process to the accused, file, in the Court- for supply to the accused as many copies of the complaint and any other document -which he has filed with his complaint as the number of the accused and
(b) copies of the complaint, and any other documents which the complainant has filed therewith and the statement under Section 200 or Section 202 shall -be supplied free of cost to the accused not later than seven days before the commencement of the trail."
The requirement mentioned in the above provision is mandatory, and non-compliance may vitiate the proceedings. The essence of this provision is rooted in the principles of natural justice, allowing the accused adequate opportunity to prepare his defence. The guidelines for the Courts are that the provision of these documents must be done at the earliest opportunity after framing of charge, and not at the whim of the prosecution. Delay of failure can be challenged and may amount to miscarriage of justice.
9. Likewise, Section 265-F Cr.P.C mandates the prosecution to make an opening statement in the Court after the charge has been framed and before evidence is led. The statement should briefly outline the facts of the case and the evidence the prosecution intends to produce. Section 265-F Cr.P.C being relevant is also reproduced as under: "265-F. Evidence for prosecution: (1) if the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution: Provided that the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
(2) The Court shall ascertain from the Public Prosecutor or, as the case may be from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it.
(3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating "the ends of justice. Such ground shall be recorded by the Court in-writing.
(4) When the examination of the witnesses for the prosecution and the examination of any of the accused are concluded, the accused shall be asked whether he means to adduce evidence.
(5) If the accused puts in any written statement, the Court shall file it with the record.
(6) If the accused, or any one of several accused, says that ha means to adduce evidence, the Court shall call on the accused to/enter on his defence and produce his evidence.
(7) If the accused, or any one of 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 sinless 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".
The purpose of Section 265-F Cr.P.C is to inform the Court and the accused of the nature of prosecution's case. It allows insight into the case being made out against it. Court must, ensure that the prosecution adheres to this guideline, as it promotes transparency and clarity in criminal proceedings.
10. Similarly, Section 540 Cr.P.C empowering provision giving discretion to the Court to summon any person as a witness or recall or re-examine any person already examined, if it considers his evidence essential for the just decision of the case. Section 540 of Cr.P.C being relevant is also reproduced as under: "540. Power to summon material witness or examine person present: Any Court may, at any stage of any inquiry, trial or other proceeding under this Code summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re- examine any 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".
The requirement of Section 540 Cr.P.C is that the Court must be satisfied that such evidence is necessary to arrive at the truth. The purpose is to prevent miscarriage of justice due to the absence of necessary evidence, even if neither party has summoned the witness. The Court has discretionary power to summon any person for the just decision of the case, but it must be used sparingly and only in the interest of justice; it is not meant to fill gaps in the prosecution or defence case unless the interest of justice so demands.
11. Besides, Section 342 Cr.P.C provides a procedure to examine the accused by the Court. This provision requires the Court to examine the accused after the closure of prosecution evidence to explain any circumstances appearing against him in the evidence on record. Section 342 Cr.P.C is also reproduced as under for ease of ready reference: "342. Power to examine the accused: (1) For the purpose of enabling the accused to explain any .circumstances appearing in the evidence against him, the Court-may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been .examined and before he is called on for his defence;
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court may draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into or trial for, any other offence which such answers may tend to show he has committed.
(4) Except as provided by sub-section (2) of Section 340, no oath shall be administered to the accused".
The requirement of Section 342 Cr.P.0 is that the examination must be direct, and all incriminating material must be brought to the notice of the accused. It provides the accused an opportunity to explain or deny any part of the prosecution case.
12. The interpretation of Section 94, 265-C and 265-F Cr.P.C has critical bearing on an accused's right to fair trial and the Court's obligation to ensure proper administration of justice. These provisions, while distinct in scope, function together to ensure the accused has access to documentary evidence, essential for preparing their defence or confronting prosecution witnesses.
The accused has the right to invoke Section 94 Cr.P.C even before entering defense if the document sought is necessary or desirable for the inquiry or trial. The document need not be part of the police record nor within the accused's possession or control. The purpose of Section 94 Cr.P.C is to enable a Court to secure relevant material at any stage, provided it is essential to the proper adjudication of the case. Section 94 Cr.P.C is general and overriding, and not restricted by Section 265-F Cr.P.C. The accused should not be forced to wait until the defence stage to obtain documents that could assist in cross-examination or negate prosecution allegations early on.
Denial of access to such documents could result in unnecessary delay, prejudice to the accused, or even miscarriage of justice.
13. Section 94 Cr.P.C is a general provision allowing both prosecution and defence to apply for the production of evidence. While Section 265-C Cr.P.C is not exhaustive, and its limitation cannot prevent access to relevant documents through Section 94 Cr.P.C. Similarly, Section 265-F Cr.P.C is a supplementary right, not a limitation on the broader scope of Section 94 Cr.P.C. Similalry, Section 540 Cr.P.C gives wide discretionary powers to the Court to summon any person as a wintness or recall or re-examine any person already examined, if their evidence appears essential to the just decision of the case, just like Section 94 Cr.P.C allows the production of documents necessary for determining truth. Section 540 Cr.P.C allows the Court to call witnesses regardless of the stage of trial, including after the prosecution or defence has closed their evidence. Section. 94 Cr.P.C must be applied liberally, and the same judicial philosophy applies to Section 540 Cr.P.C. Courts are reminded that their paramount obligation is to uncover the truth, and if the appearance of a witness or additional testimony will help achieve that, the Court must not hesitate to invoke this Section, Suo Motu or an application. These provisions guarantee against miscarriage of justice. The right of the accused under Section 265-C Cr.P.C and 265-F Cr.P.C by enabling the Court to independently intervene when a critical gap in evidence is apparent. It upholds the inquisitorial duty of the Court to secure justice, particularly where negligence or omission has led to the exclusion of important evidence. The Court's powers under Sections 94 Cr.P.C and 540 Cr.P.C and its duties under Section 342 Cr.P.C along with the accused's right under Section 265-C Cr.P.C and Section 265-F Cr.P.C form a complete procedural mechanism for ensuring justice in a criminal trial.
14. Section 94 Cr.P.C allows parties to summon documents necessary for truth, and Section 540 Cr.P.C empowers the Court to summon or recall witnesses in the interest of justice. While Section 342 Cr.P.C protects the accused's right to explain evidence fairly and must be exercised meaningfully, and Sections 265-C and 265-F Cr.P.C do not bar pre-defense stage requests and must not be used to restrict rights. Section 540 Cr.P.C and Section 342 Cr.P.C, when read collectively with Section 94 Cr.P.C, Section 265-C and 265-F Cr.P.C, establish a powerful judicial and procedural framework that guarantees the right to a fair trial. Courts are under an affirmative duty to apply these provisions harmoniously and liberally, guided by the foundational principle that no one should be convicted unless guilt is established through a fair, just, and transparent process.
Reliance can be made to the cases titled "The State Vs Chaudhrp Muhammad Usman" (2023 SCMR 1676); "Muhammad Asif Ali Usama Vs the State and others" (2022 P. Cr. L J 59); and "Sultan Ubaid Ur Rehman Vs the State and another" (2017 PCRLJ 469). The relevant portions of the referred judgments are reproduced as under for ease of ready reference:- (2023 SCMR 1676):- Criminal Procedure Code (V of 1898)-- ---Ss. 94 & 26S-C---Summons to produce documents--Powers of Trial Court under section 94, Cr.P.C.--- Scope--- Even before the commencement of the trial, an accused can apply to the Trial Court to exercise its power under section 94, Cr.P.C., and direct the prosecution or the complainant to produce a document, in its or his possession or power, which is not covered under section 265- C, Cr.P.C., if the production of that document is necessary or desirable for the purposes of the inquiry or trial--Even before entering on his defence, an accused can make an application for the production of a document under section 94, Cr.P.C. despite the provisions of section 265-F(7), Cr.P.C., which provides a similar opportunity to him at the stage of defence evidence.
A bare reading of section 94, Cr.P.C. shows that there is no limitation as to the stage of the inquiry or trial when a court can, in the exercise of its power under this Section, make an order for the production of any document. The only condition for the exercise of the power under section 94 is that the production of the document must be necessary or desirable for the purposes of the inquiry or trial before the court. The word 'whenever' in section 94 clearly indicates that a court can exercise the power of requiring the production of any document under this section at any stage of the inquiry or trial.
Further, section 94 does not restrict as to whose point of view, whether of the prosecution or the accused, the required document may be necessary or desirable for the purposes of the inquiry or trial. A court being a neutral arbiter does not act for either the prosecution or the accused but for the dispensation of justice. And for the dispensation of justice, the court is to ascertain the truth in respect of the matter under inquiry or trial before it. The production of a document that would facilitate the court in this regard is to be considered necessary or desirable for the purposes of the inquiry or trial. It is immaterial whether the production of such a document would support the prosecution case or the defence of the accused. Therefore, any party may at any stage of the inquiry or trial apply to the court, under section 94, for the production of a document and is entitled to its production if it satisfies the court that the production of that document is necessary or desirable for the purposes of such inquiry or trial.
Muhammad Rahim v. Emperor AIR 1935 Sindh 13 ref:- There may be cases in which owing to dishonesty, negligence or any other reason, the prosecution does not produce certain documents with the police report, which may establish that there is no probability of the accused being convicted of any offence or the charge against the accused is groundless, and the production thereof is thus necessary or desirable for the purposes of the inquiry or trial. But because such documents are not filed with the police report, the same will not be supplied to the accused under section 265-C, Cr.P.C. In such cases, it would not be just and fair to the accused to reject his application for the production of such documents and to let him undergo the ordeal of protracted trial proceedings and wait for the stage of defence evidence. Similarly, the documents which are not produced by the prosecution with the police report but are relevant to the matter under the inquiry or trial and to use them for his defence, the accused is legally required to confront the prosecution witnesses with those documents in their cross-examination. In such a circumstance also, it would be in the interest of justice that the application of the accused made under section 94 for their production is allowed. Otherwise, it would incur unnecessary delay, expense and inconvenience to recall the prosecution witnesses at the stage of defence evidence only for the purpose of confronting them with such documents.
The provision of subsection (7) of section 265-F, Cr.P.C., under which the accused, after entering on his defence, can apply to the trial court to issue any process for compelling the production of any document, does not in any way affect the power of the trial court under section 94(1), Cr.P.C.
The provisions of section 94(1) have not been made subordinate by the legislature by the use of the expression, 'Subject to the other provisions of this Code, nor have the provisions of section 265-F(7) been given any overriding effect by using therein the expression, 'Notwithstanding. anything contained in other provisions of this Code. Section 265-F(7), therefore, neither controls nor limits the power of a court under section 94(1) in essence, the provisions of these two Sections differ from each other in their extent and scope. They are not opposed to each other. Section 94(1) affords both the parties to an inquiry or trial (not to the accused alone) the opportunity of causing the production of any document at any stage of such inquiry or trial, with the condition that the party applying for it must satisfy the court that the production of the required document is necessary or desirable for the purposes of the inquiry or trial. Section 265-F(7), on the other hand, only gives the accused another similar opportunity at the stage of his defence subject to a lesser condition, which is that his application should not be for the purpose of vexation or delay or defeating the ends of justice.
(2022 P. Cr. L J 59):
(a) Criminal Procedure Code (V of 1898)--- --S. 94---Summoning .of record or a thing--Pre- condition--Word "whenever"--Scope--Only precondition to invoke provision of S. 94, Cr.P.0 is that Court is to be satisfied that production of document or thing is necessary for just decision of case---Scope of S. 94, Cr.P.C. is very wide and word "whenever" suggests that Court could exercise its pow. et.- conferred to it at any stage of inquiry or trial.
(b) Criminal Procedure Code (V of 1898)--- 94--Control of Narcotic Substances Act (XXV of 1997), S. 9(c)7--Recovery of narcotic substance-- Document, summoning of--Accused during cross examination sought summoning of Call Data Record of cellular phones of prosecution witnesses---Trial Court declined to summon the record- --Validity--Accused was facing charge entailing capital sentence, it was essential that he could get every chance to defend him--While passing order in question, Trial Court failed to take notice of such considerations and fell in error, while dismissing application filed by accused---Prosecution witnesses were members of raiding party who admitted that telephone numbers were in their personal use---Production of Call Data Record of mobile numbers would help the Court to arrive at just decision--High Court directed Trial Court to summon Call Data Record as desired by accused--Appeal was allowed in circumstances.
(2017 PCRLJ 469):-
(b) Penal Code (XLV of 1860)-- ----Ss. 302, 148, 149 & 337-A(i)--Criminal Procedure Code (V of 1898), S. 94---Qatl-i-amd, rioting armed with deadly weapon, common intention and Shajjah-i- khafifah--Appreciation of evidence--Application for summoning the register of mortuary-- Dismissal of--Defence had alleged that during cross-examination of prosecution witness, question with regard to bringing dead body to the mortuary was raised--Defence therefore, moved an application to summon the register of mortuary pertaining to the date of occurrence and bringing the dead body in mortuary--Said application, was dismissed by the Trial Court, observing that defence could raise said plea at the time of recording statement under S. 342, Cr.P.C.-- -Held,' there were three stages where such relief was permissible to the defence; (i) at any stage of trial before recording statement under S. 342, Cr.P.C.; (ii) at the time of recording statement under S. 342, Cr.P.C., accused may suggest to name all defence witnesses and any other material required to be summoned from any concerned quarter and (iii) at the time of submitting written statement permissible under S. 265(f), Cr.P.C. whereby the accused could offer such defense to summon record for which a separate order had to be passed by the court--In the present case, stage where application was moved for summoning the record was proper and appropriate--Application to summon the Register from mortuary was allowed accordingly.
15. The authoritative judgments of the Supreme Court of Pakistan reaffirmed that Section 94 Cr.P.C grants wide and independent power to the trial Court to summon or require the production of any document or thing at any stage of the trial, provided it is necessary or desirable for the just decision of the case. The Supreme Court of Pakistan emphasized that this power is not limited to the prosecution, nor is it dependent on the defence entering its case. This means the accused can invoke Section 94 Cr.P.C to request crucial documents, even before formally opening his defence.
Section 94 Cr.P.C operates independently of Section 265-C Cr.P.C, which only obliges the prosecution to provide specific documents filed with the challan. If relevant documents are missing from the police file, the accused is not barred from seeking them under Section 94 Cr.P.C. Similarly, Section 265-F, which allows the defence to summon documents or witnesses, does not curtail the brouder power under Section 94 Cr. P.C. The Suprme Court held that using Section 265-F(7) Cr.P.C to delay or deny access to documents necessary for cross-examination or defence preparation would result in miscarriage of justice.
16. In connection, Section 540 Cr.P.C gives the Court Suo Motu authority to summon or recall any witness essential to the accused must be fairly questioned, which can only be meaningful if he is aware of and has access to all material evidence. Thus, the Supreme Court held that Section 94 Cr.P.C is pivotal in maintaining the fairness of criminal trials and must be interpreted liberally and purposively; it ensures transparency, protects the rights of the accused, and serves the ultimate objective of doing complete justice.
17. When this Court examines the order of the trial Court in the light of the above legal position, this Court finds that the trial Court erred in principle in dismissing the application of the appellant without correctly understanding the scope of the provision of Section 94 Cr.P.C.
18. For what has been discussed above, I allow the instant as well as the connected criminal appeal No.357-P of 2025. While allowing this and the connected appeals, the applications moved by learned counsel on behalf of the accused/appellant before the Trial Court are allowed. The requisite record be summoned and after its examination, the same may be confronted by the defence counsel to the relevant witnesses.