During the course of trial of the petitioner in the Court of the Additional Sessions Judge (IV), Rawalpindi, the prosecution gave up Muhammad Sadiq and Fazal Husain, eye-witnesses, as having been won over. The petitioner applied to the learned Court for summoning the two as Court witnesses, which request was declined by the learned trial Court with the following reasons: "Prosecution is not bound to produce all the eye-witnesses and it is not necessary for the Court to examine the P. Ws. Given up by the prosecution as Court witnesses. I do not consider their evidence material for the just decision of this case. The defence is at liberty to produce them as defence witnesses if it wishes to do so."
This order is being impugned in this Court in the Criminal Revision in hand.
2. The learned counsel for the petitioner has relied upon Khalil Khan v. The State PLD 1970 Pesh. 24.
The Division Bench comprised Shah Zaman Babar and Khan Qaisar Khan, JJ., the latter subsequently adorned the Supreme Court of Pakistan.
The learned Court after taking into consideration and placing reliance on Stephen Senerviratne v.
The King AIR 1936 P C 289, Serajul Mir aid others v. The State PLD 1964 Dacca 420, Syed Mehr Gul Shah v. The State PLD 1962 Pesh. 91, Ibrahim and others v. Emperor AIR 1933 Sind 49 and Re: Donald Dixon AIR 1938 Madr. 900 came to the following conclusion: "The trial Court did not give reasons for declining to take action on the application of the accused.
On perusal of the statement of prosecution witnesses before the Committing Magistrate, it appeared that those statements materially and adversely affect the prosecution case that deceased was able to make a dying declaration. Thus, non-examination of the necessary witnesses, by the prosecution, and the judicial discretion exercised by the trial Court in declining to examine them as Court witnesses, caused prejudice to the defence."
3. Mr. Tanvir Ahmad Khan, the learned Assistant Advocate-General, appearing on behalf of the State, has referred to the wording of section 540, Cr. P. C. And contended that a witness could be called and examined under section 540, Cr. P. C. Only if
(i) the examination of such witness was expedient in the interest of justice;
(ii) the evidence was essential or expedient in the interest of justice in the opinion of the Court; and
(iii) the examination thereafter rested in the discretion of the learned Court.
4. I am conscious of the observation of the Privy Council made in Stephen Seneviratne v. The King at page 290, which is to the following effect: "Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of these conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so, confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution."
The above-quoted portion of the judgment was cited with approval in Ghulam Rasul v. The State PLD 1960 Lah.48 by a Division Bench of the Lahore High Court. The above-quoted portion from this judgment was also cited with approval in Khalil Khan's case referred to above.
5. There can be no cavil with the proposition that every person cited by the prosecution as a witness is not necessarily a material witness and that his evidence is not invariably essential for a just decision of the case. It is also true that the Court cannot and ought not compel a party to produce a witness who in the opinion of that party, is not likely to support its case. At the same time, however, the role of the Court is not limited to the examination of only such witnesses that a party chooses to produce, for it will be indicative of an unavoidable implication that only such evidence can be received at the trial which goes in favour of the party leading it. Administration of justice is the ultimate responsibility of the Court and it has to deliver the same in an even-handed manner. Examination as a Court witness of a person cited as an eye-witness by the prosecution and abandoned by it often affords a fair and equitable chance to both the parties to cross- examine the witness after he has been examined-in-chief by the Court and no side is prejudiced in such a situation. However, if a witness for the prosecution is summoned in defence and he chooses to support the case for the prosecution, the defence is certainly prejudiced whether it is allowed to cross-examine him or such cross-examination is declined. The Court will normally consider the question of permitting the party to cross-examine witness produced by itself in the light of his departure from his previous statement, if any available on record. 1f a witness, who is essentially witness for the prosecution, though led in defence, chooses to support the prosecution, there is every likelihood that the Court may not permit such a witness to be cross-examined, for the circumstances may not warrant it. I such an eventuality, the defence will certainly be prejudiced, whereas there is no such chance of prejudice to any party in case such a person is examined as a Court witness. Therefore, in my opinion, declining the request t examine such a person as a Court witness, who is cited by the prosecution itself as an eye-witness, has the semblence of inclination towards the prosecution which would be contrary to the maxim "justitia non novit patrern nec matrem, solam veritatem spectat justitia (1 Buls. 199) (Justice knows neither father nor mother, but regards truth alone).
It may some time so happen that a witness given up by the prosecution and examined by the Court may be found to be the most reliable witness and his deposition may contain a most accurate narration of the actual happening, though it may not necessarily tow the line of the prosecution. A Division Bench of the Lahore High Court of West Pakistan in Ghulam Rasul's case cited above, has gone to the extent of taking the view that it was the duty of the Court to call and examine the eye-witnesses mentioned in the F.
1. R., whether they support the prosecution or not. I am in respectful agreement with this view and would venture to say that the duty cast on the Court is still more onerous and the interest of justice demands that the Court should examine such a witness as a Court witness if so requested by the defence. In such a case, it should not insist upon the defence examining such a witness` as a defence witness.
The argument of the learned State counsel that the refusal of permission to examine such a witness as a Court witness is within the absolute discretion of the Court, is also not of much force.
Vesting of discretion in a Court does not imply arbitrary exercise of powers. Discretion has to be exercised in accordance with the settled principles of, law for promoting the ends of justice and necessarily connotes as act of a judicial character requiring a fair and just exercise of judgment after a careful and proper consideration of the attendant and relevant facts and circumstances.
In Words and Phrases Judicially Defined, Volume 2, 'discretion' has been defined as under: "Discretion' means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's case (1598) 5 Co. Rep. 99b; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself: Wilson v.
Rastall (1792) 4 Term Rep. 757), Sharp v. Wakefield (1891) A C 173, H. L. Per Lord Halsbury, L. C. At p.
179."
In "Corpus Juris Secundum" 'Judicial Discretion' is defined as follows: "A relative, elastic term, and it has been said that any attempt to define it is generally regarded as a difficult and dangerous undertaking. It implies the absence of arbitrary determination, capricious disposition, or whimsical thinking, imports the exercise of discriminating judgment within the bounds of reason, and is governed by the situation and circumstances affecting the exercise thereof.
'Judicial discretion' imports the invocation by a clear and trained mind of reason, courage, impartiality, and conscience to accomplish in a calm spirit a result in conformity to law and just and equitable to all parties; and it frequently involves painstaking consideration of many factors, giving to each the weight to which it is appropriately entitled, and it may include the propriety of granting appropriate relief."
6. For all the reasons stated above, I allow this revision petition and direct that two eye-witnesses given up by the prosecution as won over may be examined by the Court as Court witnesses under section 540, Cr. P. C.