2020 P Cr (PLP)

ABDUL HAMEED BALOCH, J.

This Constitutional Petition has been filed under Article 199 of the Constitution of the Islamic Republic of Pakistan ("the Constitution") against the orders dated 14.03.2019 and 21.06.2019 (impugned orders) respectively passed by the Judicial Magistrate-II Hub (trial Court) and the Sessions Judge, Lasbela at Hub (Revisional Court) with the following prayers: "It is, therefore respectfully prayed that, after calling record from both the learned trial court as well as learned appellate Court and after perusal of the same the orders impugned may kindly be set aside and the learned respondent No.2 may kindly be directed to allow the application of petitioner/accused for verification of attendance sheet dated 13-11-2017 as defence evidence, in the interest of justice and equity."

2. Brief facts leading to file the instant petition are that the petitioner filed an application before the trial court for issuing notice/summon to the representative of Gatron Company for verification of attendance sheet of accused/petitioner. The trial court rejected the application and revision filed thereon met with the same fate. Hence this petition.

3. We have heard the learned counsel for the parties and have perused the available record. Section 265-F(6), Cr.P.C. being relevant is reproduced here under: "If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence." According to above mentioned section, learned trial Court shall receive the defence evidence, if so opted to adduce. The word "shall" cannot be termed as discretion of the learned trial Court rather some serious obligation casts upon learned trial Court to afford opportunity to the accused petitioner to adduce his defence evidence as cited above.

4. Perusal of record reveals that statement of petitioner/accused was recorded under section 342, Cr.P.C. by the trial court, whereby question No.7 was put to the petitioner/accused as "Do you want to produce evidence in defence" but no answer of petitioner/accused has been written, therefore the petitioner filed application along with attendance sheet for calling the representative of the Gatron Company with attendance sheet, which clearly depicts the willingness of the petitioner to adduce evidence in his defence, but the courts below have straightaway declined the request.

5. The trial Court can only refuse the application for production of documents as evidence when it considers that the application has been made for the purpose of vexation or delay or defeating the ends of justice. Section 265/F(7), Cr.P.C. being relevant is reproduced as under: "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."

6. The bare reading of impugned order reveals that ground /reason rendered for refusal to adduce defence evidence to the present petitioner as envisaged under section 265/F(7), Cr.P.C. is not tenable for the reasons that the authenticity of the attendance sheet would be decided after recording the statement of representative of the Gatron Company, therefore, order for refusal to that extent is illegal and without lawful authority.

7. While refusing to receive defence evidence of the petitioner the trial Court has committed an illegality and has also failed to provide fair trial to the petitioner as guaranteed under Article 10(A) of the Constitution of Islamic Republic of Pakistan, 1973. In view of above circumstances, this Court comes to the conclusion that serious illegality has been committed by the courts below while passing the impugned orders dated 14.03.2019 and 21.06.2019. Consequently, the Constitution Petition is accepted and the impugned orders passed by the Courts below are set-aside. The trial court is directed to call the representative of Gatron Company with the attendance sheet. MH/103/Bal. Petition allowed.