' This order shall dispose of Criminal Revision No,236 of 2004 and Criminal Revision No,4 of 2005 as both of them arise from the same impugned order dated 7-12-2004 of the learned Additional Sessions Judge, Islamabad, whereby one application under section 540, Cr.P.C. Moved by Abdul Quddus Chishti, petitioner for summoning Muhammad Ashraf, A.S.-I., as Court-witness, who was given up by the prosecution, was accepted, whereas his second application for summoning of Shakeel Anjum, Crime Reporter of daily "The News", and Javed Akbar Riaz, the then A.S.P. City Circle, was rejected.
2. The facts giving rise to the filing of the present revision petition are that in the early morning of 13-6-2003 one Danial Asghar was murdered, regarding which case P.I.R. No,106, dated 13-6-2003 under section 302, P.P.C. Was registered at Police Station Kohsar, Islamabad against unknown accused on the report of father of the deceased. During investigation, the petitioner was allegedly found involved in the murder and as a result he was arrested by the Investigation Officer in the evening of 15-6-2003 and the weapon of offence, i,e, pistol was allegedly recovered from his house in the evening of 18-6-2003. The petitioner's stand during investigation and in Court was that he and some other friends of the deceased were illegally detained at the police station in the evening of 13-6-2003; the unlicensed pistol was produced before the I.O. By one of the deceased's friends who is son of senior bureaucrat, the recovery of which was later on planted on the petitioner and the petitioner who was made a scapegoat was also pressurized to make judicial- confession. In daily "The News" dated 15-6-2003 a news item appeared with reference to the disclosure made by A.S.P./Circle Officer to the Crime Reporter of the said Daily that the petitioner was arrested for the murder and the weapon of offence (pistol) was recovered from him.
3. The petitioner moved an application under section 540, Cr.P.C. To the trial Court to summon the Crime Reporter, daily. "The News" (Shakeel Anjum) and the then A.S.P. City Circle, Islamabad (Javed Akbar Riaz) as Court-witnesses. Another application was also moved by the defence before the learned trial Court under the provisions of section 540, Cr.P.C. For summoning A.S.-I. Muhammad Ashraf (given up P.W.) as Court-witness and the learned trial Court allowed the same but rejected the application for summoning of Shakeel Anjum, Crime Reporter, and Javed Akbar Riaz, the then A.S.P. Through an order, dated 7-12-2004, hence this criminal revision.
4. The learned counsel for the petitioner contends that there are two versions of the case regarding date of arrest and recovery of the weapon of offence, i,e, pistol on the instance of the accused- petitioner from his house. As per prosecution case, the petitioner was arrested on 15-6-2003 and on 18-6-2003 pistol, the weapon of offence, was recovered at his instance from his house. The version of the petitioner was that he was arrested the same day i,e, 13-6-2003 and on 14-6-2003 Javed Akbar Riaz, A.S.P., City Circle passed information to Shakeel Anjum that the petitioner, killer of Danial, was arrested and the weapon of offence was recovered. The said news was published in daily "The News" dated 15-6-2003. According to the learned counsel, the said news supports the version of the petitioner that he was kept in illegal custody from 13-6-2003 to 15-6-2003 when he was formally arrested. Moreover, that the pistol was already secured from Kamal Rashid P.W. And the empty prepared from the same therefore, examination of the A.S.P. And Crime Reporter is essential for just decision of the case. Reliance is placed on the cases reported as Mehrzad Khan v.
The State PLD 1991 SC 430, Muhammad Ayub v. The State 1987 PCr.LJ 779, Ghulam Abbas v. M. Sadiq and others 2004 M LD 1900, Wajid Hussain v. The State 1998 M LD 257, Shabbir Ahmad v. Khalid Mehmood and others 1992 PCr.LJ 2392, Muhammad Ashraf Khan Tareen v. The State 1995 PCr.LJ 313 and The State v. Muhammad Yaqoob and others 2001 SCM R 308.
5. The learned counsel for the complainant, petitioner in. Criminal Revision No,4 of 2005 contends that the petitioner cannot be given a right of cross-examination to his own witnesses; therefore, the accused-petitioner should have produced the witnesses in his defence.
6. 'To resolve the controversy between the parties, reading of section 540, Cr.P.C. Would be relevant, which is reproduced hereunder:-- "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 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. In the case of Mehrzad Khan PLD 1991 SC 430, (supra) the Honourable Supreme Court while interpreting section 540, Cr.P.C. Held, that "A plain reading of section 540, Cr.P.C. Indicates that it has two parts, the first part empowers every Court at any stage of any inquiry, trial or other proceeding under the Code to 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, whereas the second part of the above section enjoins the Court to 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". In the case reported as The State v. Muhammad Yaqoob and others 2001 SCM R 308 while giving intents and purposes of section 540, Cr.P.C. The Honourable Supreme Court ruled that, "Calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose, but it is the duty of the Court to do complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object--Solitary principle of judicial proceedings in criminal cases is to find out the truth and to arrive at a correct conclusion and to see that an innocent person is not punished merely because of certain technical omission on his part or on the part of the Court---Every criminal case, no doubt, has its own facts and, therefore, no hard and fast rules or criteria for general application can be laid down in this respect, but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of section 540, Cr.P.C. It is obligatory on the Court to examine such a witness ignoring technical or formal objection in this respect as to do justice and to avoid miscarriage of justice".
8. On the touchstone of the abaft stated case-law, I note that on the one hand there was version of the prosecution regarding arrest of the accused-petitioner on 15-6-2003 and it was also relied that the recovery was made on 18-6-2003, whereas on the other hand the version of the accused- petitioner was that he was in fact arrested on 13-6-2003. According to the petitioner's defence, the matter was reported in daily "The News" on 15-6-2003 by the Reporter Shakeel Anjum on the information supplied by Javed Akbar Riaz S.D.P.O./A.S.P. Now press reports only amount to hearsay evidence and not admissible unless proved by producing the Reporter and their source for identification as held in the case of Muhammad Ashraf Khan Tareen 1995 PCr.LJ 313 (DB Peshawar).
The above said two conflicting versions were not about a minor and insignificant matter, but they were about a very crucial and important piece of evidence. Perusal of the statements of the witnesses clearly shows that almost every one of them has been cross-examined about the date of arrest of the accused-petitioner, because, as shown in the Newspaper, the petitioner has made efforts to lay basis for his argument that he was arrested on 13-3-2003.
9. The learned counsel for the prosecution has argued that the petitioner cannot be given a right of cross-examination to his own witness; therefore, the accused-petitioner should have produced the witnesses in his defence. This argument is not well-founded. Muhammad Ashraf A.S.-I. Was cited as witness in the report under section 173, Cr.P.C. If he was not examined by the prosecution, naturally prejudice was caused to the accused-petitioner. By accepting the application of the accused- petitioner under section 540, Cr.P.C. For summoning of Shakeel Anjum, Crime Reporter, daily "The News" and Javed Akbar Riaz S.D.P.O./A.S.P. His plea would also come on the record and keeping the stand of the defence and the prosecution side by side the Court would have been able to resolve the controversy in accordance with law.
10. For what has been discussed above, this criminal revision filed by accused-petitioner assailing the order of the trial Court dated 7-12-2004, through which his application under section 540, Cr.P.C. For summoning Javed Akbar Riaz, A.S.P. And Shakeel Anjum Crime Reporter, as Court- witnesses had been dismissed, is allowed and the order to that extent is set aside.
11. Since the trial Court has passed a valid order regarding summoning of Muhammad Ashraf, A.S.-I.
As Court-witness under section 540, Cr.P.C. Therefore, Criminal Revision No,4 of 2005, filed by complainant Ali Asghar Awan is dismissed.