' The brief facts out of which present writ petition arises are that respondent No,1 filed a complaint under section 19 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances)
Act, 1997 before the Judge Banking Court No,1, Faisalabad. Respondents filed an application for summoning of witnesses before the Judge Banking Court-I, Faisalabad, who accepted the same vide order dated 17-4-2003. The petitioner being aggrieved filed this writ petition.
2. The learned counsel of the petitioner submits that the complainant did not mention the names of witnesses in the conterits,of the complaint or in the list attached by the complainant with the complaint before the Judge Banking Court. The learned Judge Banking Court erred in law to accept the application of respondents. He further submits that the complaint is frivolous having no basis, which should be dismissed by the Judge Banking Court on the first date of hearing. He further submits that the Judge Banking Court erred in law to exercise his discretion in favour of the respondents, which is not in accordance with the mandatory provisions of sections 241-A(2) and 265-C(2) of Cr.P.C. He further submits that the respondents intended to produce the witnesses, who had been appointed as local commissioner in the execution proceedings.
3. The learned law officer entered appearance on Court's call, he submits that the writ petition is not maintainable.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
5. It is better and appropriate to reproduce section 540, Cr.P.C. To resolve the controversy between the parties:-- "Power to summon material witness or examine person present.---Any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person, if his evidence appears to it essential to the just decision of the case. "
' A bare reading of this section shows that it consists of two parts. First giving a discretionary power to summon any person or witness. Second part makes it obligatory for the Court to summon, examine and recall to any such person, if his evidence appears essential to just decision of the case. In the present case, the following facts are admitted:--
(i) The respondents filed complaint on 11-5-2000.
(ii) Mian Haq Nawaz, Advocate was appointed as local commissioner for visiting the spot and preparing an inventory of the machinery on 29-6-2001.
(iii) Mr. Javed Iqbal Bhinder, Advocate was also appointed as Receiver on 20-6-2002.
(iv) Mr. Saeed Nawaz, Technical Manager, was to assist Receiver and was directed to assist the local commissioner.
(v) Mr. Saad Zulfiqar, Technical Engineer was appointed to assist the Receiver Mr. Javed Iqbal Bhinder, Advocate.
6. In case, the aforesaid facts are put in juxtaposition, then it is crystal clear then the aforesaid witnesses were not in existence at the time of filing of complaint by the respondents. The evidence of the aforesaid witnesses is necessary to resolve the controversy between the parties. It is pertinent to mention here that the Legislature has specifically mentioned the following words in section 540, Cr. P. C: - - "(1) 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 recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person, if his evidence appears to it essential to the just decision of the case."
7. The learned Banking Court passed the order keeping in view the contents of section 540, Cr.P.C.
And ingredients of section 540, Cr.P.C. Are fully applicable in the present case. The learned counsel of the petitioners failed to point out any infirmity or illegality in the impugned order, even otherwise, substantial justice has been done between the parties which is in accordance with dictum laid down by the superior Courts in the following judgments:-- ' Syed Saeed Muhammad and another v . The State 1993 SCM R 550.
' Muhammad Rauf Awan v. The State and others 1992 PCr.LJ 729.
' Muhammad Yousaf v. Ghulam Rafiq and 2 others 1989 PCr.LJ 1734.
' Imam Hanif v. Tufail and 3 others 1989 PCr.LJ 1518.
' It is settled principle of law that the Constitutional jurisdiction is discretionary in a character.
Keeping in view E the circumstances of this case, I am not inclined to exercise my discretion in favour of the petitioner, as per principle laid down by the Honourable Supreme Court in Nawab Syed Raunaq Ali's case PLD 1973 SC 236.
' In view of what has been discussed above, this writ petition has no merit and the same is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.