' In continuation of my order, dated 27-9-2004, learned counsel for respondent No,1 submits that learned trial Court has rightly accepted the application of the respondent No,1 because under sections 265-F and 540, Cr.P.C. And Article 161 of Qanun-e-Shahadat Order, 1979 the learned trial Court has ample powers to summon the material witnesses, whose evidence is essential for a just decision of the case. He further submits that Romana Nayyab is daughter of the present petitioner, who is accused for the murder of Ghulam Fatima, that Rizwana Naseem is daughter of Ghualm Fatima deceased while Jawahar Khatoon has to depose about the motive, who is wife of Zafar Hussain accused-petitioner. He contends that this petition is not maintainable and the same is liable to be dismissed. He has relied upon 2000 PCr.LJ 1882, 2000 PCr.LJ 62, 2000 PCr.LJ 64 and PLD 1984 SC 95.
2. On the other hand, learned Addl. A.G. Submits that this cannot be allowed because neither these witnesses were mentioned in the F.I.R. Nor joined during the course of investigation nor they were mentioned in the list of calendar of witnesses when the prosecution filed the challan.
3. On the other hand, learned counsel for the petitioner submits that stage of section 265-F, Cr.P.C.
Had already been passed because the charge was framed on 13-7-2004, nine witnesses were already examined including the complainant when respondent No,1 gave this application. He has relied upon 2004 SCM R 966 and 1991 M LD 17.
4. I have heard learned counsel for the parties, have given anxious consideration to the submissions made at the bar and have also gone through the relevant provisions of law referred in this case.
5. The occurrence in this case had taken place at 7-00 P.M. On 9-8-2003, report in this regard was lodged on the same day at 9-15 P.M. By Umar Draz complainant, who, while lodging the said report for the murder of Ghualm Fatima, named the present petitioner as an accused. He had also mentioned the name of two other persons, namely, Amir Abdullah and Sahib Khan as eye- witnesses. The motive given in the F.I.R. Was that Zafar Hussain petitioner had a suspicion about the character of Ghulam Fatima, who was sister-in-law of the present petitioner and sister of Jawahar Khatoon to whom the respondent wants to produce her before the trial Court to depose about the motive. The accused before the High Court and before the Courts of Session are to be tried under Chapter XXII-A, Cr.P.C. And the relevant provisions are sections 265-A to 265-L, Cr.P.C. Section 265- C, Cr.P.C. Is relatable to the stage when the Court has to supply the statements of the witnesses and other documents required under the law. Section 265-D, Cr.P.C. Relates to the framing of charge while section 265-E (2), Cr.P.C. Comes into motion regarding recording plea of the accused.
It reads as under:-- "If the accused pleads guilty, the Court shall record the plea, and may in its discretion convict him thereon.- According to above said section even if the accused does not plead guilty, then section 265-F (2) and (3), Cr.P.C. Come into existence which stipulate as under:--
(2) "The Court shall ascertain from the Public prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the cases and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it."
(3) "The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing".
5-A. This stage has already gone by because after framing the charge on 13-7-2004 the learned trial Court started to record the evidence. P.W.1 was examined by the trial Court on 23-7-2004 and on the said date, four witnesses were also examined, then on 14-9-2004 P.Ws. 5, 6 and 7 were examined, then, complainant/ respondent was examined on 13-9-2004, thereafter, P.W.9 was examined on 17-9-2004, then respondent No,1 submitted an application on 13-9-2004 for summoning of Romana Nayyab, Mst. Rizwana Nasim and Mst. Jawaher Khatoon.
6. It would not be out of place to mention here that neither all these witnesses were mentioned in the F.I.R. Nor they were joined during the course of investigation but respondent in his examination- in-chief introduced their names. Except Jahawar Khatoon, he was duly confronted with his statement mentioned in the F.I.R. Because neither Mst. Rumana Nayyab nor Mst. Rizwana Naseem were mentioned in the F.I.R. As eye-witnesses. When he was further examined, he admitted that no statement of Mst. Rumana or Mst. Rizwana were recorded by the Investigating Officer under section 161, Cr.P.C. Although he insisted that he had asked the Investigating Officer for the same. In answer' to a question, he replied that he did not make any complaint against the said Investigating Officer to the higher officers in the police hierarchy for not doing so. Even on my query to learned counsel for the respondent whether any complaint was filed before the competent Court and whether any writ petition was filed before this Court, the answer is in negative. The Courts are not sitting to fill up the lacunas in the prosecution case. In my considered opinion, the anxiety for submitting this application arose when two eye-witnesses mentioned in D the F.I.R., namely, Amir Abdullah and Sahib Khan were given up by the prosecution as having been won over, so this application was given by the respondent.
7. As far as Article 161 of Qanun-eShahadat Order, 1979 is concerned, that is not applicable in this case because said Article is relating to Judge's power, to put questions or issue order of production.
So far as, section 540, Cr.P.C. Is concerned, the Court has to use its discretions under first part of the said section judiciously and with full application of mind. In the afore-referred circumstances, I am of the considered opinion that there is no justification under the law or any compulsion on the part of the trial Court to summon the above said three witnesses during the trial. Resultantly, this petition is allowed and the impugned order, dated 18-9-2004 passed by the learned Additional Sessions Judge, Sargodha is set aside.
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