Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks setting aside of order dated 10.9.2003 passed by the learned Magistrate Mian Channun by which he has dismissed the application of the petitioner for summoning of Rapt No, 7 on the basis of which FIR was lodged and against the said order revision petition was also dismissed vide order dated 29.10.2003 passed by the learned Addl. Sessions Judge, Mian Channun.
Both these orders have been challenged by the petitioner in this writ petition.
2. The brief facts of the case are that the petitioner is a complainant in case FIR No, 304 registered on 24.2.2002 under sections 333, 334-L (ii)/34 PPC at P.S. Tulamba District Khanewal. After recording the statement of the complainant an application was moved on his behalf for summoning Rapt No, 7 and placing it on the record as on the basis of this rapt FIR was lodged. However, in the application Rapt No, 15 was written and another application was moved during the course of arguments for correcting the same as Rapt No,
7. The learned Magistrate and the learned Addl: Sessions Judge have dismissed both the applications on the ground that neither Rapt No, 7 was attached with the report under Section 173 Cr.P.0 nor it is part of the record of the police file and the prosecution cannot be allowed at this belated stage to produce it in the Court. Both the Courts below have relied upon Muhammad Aslam vs. The State (PLD 1995 Lah. 632) and. Muhammad Akram vs. The State (1999 Pak. Cr.L.J. page 496) in support its findings.
3. Learned counsel for the petitioner contends that it has been mentioned in the FIR itself in the opening sentence that FIR is based on rapt No, 7 dated 23.10.2002 which was the statement of the petitioner under Section 154 Cr.P.C. which clearly shows that this document has not been cooked upon during the trial but it was part of the record of the police even before the registration of the case hence summoning of rapt and placing it on the record will be necessary to reach the just decision of the case as the date of the registration of the case can be ascertained from it and in case this rapt is not produced, the case of the prosecution will be prejudiced. It is also contended that both the cases have been wrongly relied upon by both the Courts below. Relies upon Muhammad Yaqoob vs. Sessions Judge, Kasur and 2 others (2003 MLD page 1296) that the supplementary statement can be produced in the Court under Section 265-F(2) Cr.P.C. He also refers case reported as Mst. Shama Akram vs. Muhammad Latif alias Teefa alias Liaqat and 7 others (2001 YLR page 746) wherein it has been held that any oral or documentary evidence which the prosecution intended to produce, could not be refused before closing of the prosecution case.
4. Learned counsel for the respondents on the other hand has drawn my attention that the prosecution having already concluded its evidence, now the case is fixed for final arguments for tomorrow and the case of the respondents will be prejudiced as at this stage placing on record Rapt No, 2 will amount to re-opening of the case because this document was neither produced by the prosecution with the challan nor copy of the said document was supplied to the respondents under Section 241-A Cr.P.C.
5. I have heard the arguments of the learned counsel for the parties as also the case law cited at the bar.
6. Under sub-section (2) of Section 244 Cr.P.C. the Magistrate is empowered in his discretion to issue summons to any witness directing him to attend or to produce any document or other thing on the application of the complainant or the accused. The same is reproduced here for ready reference: The Magistrate may, if he thinks fit, on the application of the complainant or accused, issue a summons to any witness directing him to attend or to produce any document or other thing."
No doubt the discretion has to be exercised by the Courts judiciously and in a proper manner. A perusal of this Section read with Section 265-F Cr.P.C. makes it clear that the prosecution can be allowed to produce additional evidence with oral as well as documentary, unless it is proved that the document has been subsequently cooked up or that such witness is being called for relaxation or delay or defeating the ends of justice and it will prejudice the case of the accused. But in the present case the document (Rapt No, 7) sought to be produced is already with the police which was initially recorded on 23.10.2002 on the statement of the petitioner and on the basis of the same FIR was lodged the next day. The thumb impression of the petitioner is also available on Rapt No, 7 and on the other hand there is no thumb impression of the petitioner on the FIR, hence it was a necessary document which was required to be produced by the prosecution in order to prove that the FIR was lodged by the petitioner is time and this document has not been introduced subsequently as it finds mentioned in the opening sentence of the FIR that it is being recorded on the basis of Rapt No, 7 recorded on 23.10.2002. The non-attachment of this document with the report under Section 173 Cr.P.C. and non-production of the same in the Court earlier is not sufficient to deprive the prosecution from producing this document in the Court.
7. The case-law relied upon by the learned Addl. Sessions Judge is not applicable to the facts and circumstances of the present case as in Muhammad Akram's case reported in "1999 Pak Cr.L.J. page 496" it has been held that before the commencement of the trial all the information has to be supplied to the accused to enable him to defend himself properly through supply of statements of witnesses and other documents. In "PLD 1995 Lah. 632" too same principle has been, re-reiterated.
However, in the present case due to the negligence of the police the document which was already on the record and on the basis of which FIR was lodged could not be attached with the judicial record or police file. The petitioner also moved this application immediately after the recording of his statement and it is also an admitted fact that the statement of the prosecution witnesses were yet to be recorded and the prosecution had not closed its case.
8. Learned counsel for the petitioner had correctly relied upon Mst. Shama Akram vs. Muhammad Latif alias Teefa alias Liaqat and 7 others (2001 YLR page 746) in which it has been held that any oral or documentary evidence which the prosecution intended to produce could not be refused before closing of the prosecution case. Similarly learned counsel for the petitioner has correctly relied upon Muhammad Yaqoob vs. Sessions Judge, Kasur and 2 others (2003 MLD page 1296) in which it has been held that / under Section 540 Cr,P.C. the Court has the power to summon at any stage of an inquiry, trial or other proceedings any person as a witness or examine any person in attendance. At far as the argument of the learned counsel for the respondents that it will prejudice the case of the respondents is concerned, after the prosecution of the rapt the complainant shall be recalled and liable to be cross-examined by the respondents and if the respondents move any application for cross-examination on any other witness regarding this rapt No, 7, the learned trial Court will decide the case in accordance with law. As the respondents can avail the opportunity to cross-examination the witnesses on this point, hence their case will not be Prejudiced in any manner. As far as the delay .in the conclusion of the trial is concerned the learned trial Court is directed to conclude the trial within shortest possible time. This writ petition is maintainable as the Courts below have omitted to exercise the powers vested in them under the law.
9. For the foregoing reasons this writ petition is accepted, the impugned orders are set aside and the application submitted by the petitioner before the learned trial Court is allowed.