This criminal revision has been filed against the order dated 24.5.2004 passed by the learned Additional Sessions Judge, Rawalpindi, whereby he rejected the application filed for summoning the Medical Officer and Sardar Muhammad Maqsood Khan DSP Saddar in case Flit No, 156 dated 17.8.2003 registered under Sections 302/34 PPC at Police Station Chauntrs District Rawalpindi.
2. Learned counsel for the petitioner contends that the impugned order of the learned trial Court refusing to summon Dr. Irfan Khilji and Sardar Muhammad Maqsood Khan DSP as C.W. under Section 540 Cr.P.C. is in disregard of law and, thus, is not sustainable.
3. Conversely, the learned counsel opposed the arguments of the learned counsel for the petitioner and submitted that Section 540 Cr.P.C. cannot be used as vehicle of exploitation to secure presence of witnesses, who can be examined in defence. Learned State counsel has supported the impugned order.
4. Heard. Record perused.
5. Dr. Irfan Khilji has medically examined Tanzeer Haider Shah accused. Muhammad Maqsood Khan DSP in his investigation had found Syed Abdullah Shah and Syed Zaheer Haider Shah as innocent. The complainant/injured in his statement in Court admitted that Syed Tanzeer Haider Shah received injuries during the incident, but gave his own version of the incident. However, M.L.R. of Tanzeer Haider Shah is not on record, in absence whereof, the nature and seat of injuries cannot be ascertained.
6. As far as summoning of Muhammad Maqsood Khan DSP as CW is concerned, he declared Abdullah Shah and Zaheer Haider Shah as innocent in the case. In case he be summoned as defence witness, he will support his conclusion in investigation that Abdullah Shah and Zaheer Haider were innocent, while Tanzeer Haider Shah was guilty. Tanzeer Haider Shah in this eventuality will have no right to cross-examine, Muhammad Maqsood Khan DSP. His case will be badly prejudiced, if Maqsood Khan DSP is summoned as a defence witness.
7. Section 540 Cr.P.C. provides that the Court may at any stage of the trial summon any person as a witness or re-call or re-examine any person. Ample power is conferred on Court under this provision of law, which consists of two parts. First one, gives discretion to summon any person as a witness, while the second part makes it obligatory for the Court to summon any person as witness, if his evidence appears to be just and essential for the decision of the case.
8. Undoubtedly, in this case prosecution has failed to place on judicial record M.L.R. of Tanzeer Haider Shah. The name of Dr. Imran Khilji was also not cited in the calendar of witnesses.
Withholding of such an evidence is treated as a flaw in the prosecution evidence. The Court is arbiter between the parties. It has to keep the balance straight and see that even handed justice is provided to the parties, notwithstanding the adverse effect on the case of either side. The conclusion of the learned trial Court that prosecution was not bound to cite the Medical Officer, who medically examined Tanzeer Haider .Shah and Muhammad Maqsood Khan, who declared Abdullah Shah and Zaheer Haider Shah as innocent in the case as they were defence witnesses for all purposes is incorrect. The prosecution is bound to collect all material evidence and to place on record for a judicial verdict of the Court. State cannot be expected to conceal evidence like an ordinary litigant. The prosecution works in aid of justice and not for injustice. Its role should not be that of persecution. Both Dr. Imran Khilji and Muhammad Maqsood Khan DSP are material witnesses which the prosecution avoided to produce in Court. In this state of affair, it was obligatory upon the learned trial Court to summon them as Court witnesses, granting equal opportunity to the prosecution as well as the accused to cross-examine them and find out the truth.
9. For the above reasons, I allow this criminal revision, set-aside the order dated 24.5.2004 passed by the learned trial Court and direct that Dr. Imran Khilji Medical Officer DHQ Rawalpindi and Sardar Muhammad Maqsood Khan DSP/SDPO Saddar Rawalpindi be summoned as Court witnesses: