' MUHAMMAD REAZ AKHTAR CHAUDHRY, C.J.---This appeal is directed against the judgment of the Shariat Court of Azad Jammu and Kashmir dated 16-9-2005, whereby the revision petition filed by respondent No,1 was accepted and the other revision petition filed by the appellants was dismissed.
2. The precise facts giving rise to the instant appeal are that a case under sections 302, 324, 34, A.P.C. And section 13 of the Arms Ordinance was sub judice against the appellants in the Additional District Criminal Court Sehnsa. During the trial of the case, the evidence of P.Ws.2, 4 to 7, 10 and 11 was closed. Feeling aggrieved from the said order the complainant filed a revision petition before the Shairat Court which was dismissed being time-barred. An appeal was filed before this Court against the judgment of the Shariat Court but the same was also dismissed. Subsequently after the statements of accused persons recorded under section 342, Cr.P.C. An application under section 540, Cr.P.C. Was moved by the complainant for summoning P.Ws. 2, 4 to 7, 10 and 11 as their evidence was essential for the just decision of the case. This application was accepted by the trial Court However, the trial Court declined to summon P.W.2. 'Therefore, two revisions petitions were filed before the Shariat Court; one by the appellant and the other by respondent No,1 for summoning P.W.2. The learned Judge of the Shariat Court vide consolidated judgment dated 16-9- 2005 dismissed the revision petition filed by the appellants while allowed the revision petition filed by Nisa Begum complainant, and directed the trial Court to summon P.W.2, Muhammad Farooq, along with other prosecution witnesses for examination. Now this appeal has been filed against the aforesaid judgment of Shariat Court.
3. Mr. Muhammad Azam Khan, the learned counsel for the appellants, argued that the learned Judge of the Shariat Court has failed to consider that the evidence of P.Ws. 2, 4 to 7, 10 and 11 was closed by the trial Court. A revision petition was filed in the Shairat Court and ultimately the order of trial Court was also maintained by the Supreme Court, therefore, it has attained finality after which the trial Court and the learned Judge of the Shariat Court have again wrongly issued process for procuring attendance of the aforesaid witnesses. He submitted that when once the case has been decided up to the Supreme Court, then the learned Judge of the Shariat Court and that of the trial Court were not competent to re-summon those witnesses. Therefore, the order of the learned Judge of the Shariat Court and the trial Court are illegal.
4. While controverting the arguments of the learned counsel for the appellants, it was argued by Mr. Abdul Aziz Ratalvi, the learned counsel for the respondents, that the order of learned Judge of the Shariat Court is perfectly legal and it does not require any interference by this Court. While emphasizing the aforesaid points he submitted that the powers available to trial Court under section 540, Cr.P.C. Have been exercised in the instant case. The prosecution witnesses Nos.2, 4 to 7, 10 and 11 are important witnesses and the case could not be decided properly and justly without recording their statements. Therefore the order passed by the learned Judge of the Shariat Court is perfectly legal. It does not require any indulgence by this Court.
5. We have heard the learned counsel for the parties, perused the record and have given our utmost ponder to the respective arguments advanced by the learned counsel for the parties. A contemplate perusal of the record shows that when the evidence of aforesaid witnesses was closed, then a revision petition was filed before the Shariat Court but the learned Judge of the Shariat Court dismissed the same as being time-barred. He did not consider the facts and circumstances of the case but simply dismissed the revision petition being time-barred. The Supreme Court also dismissed the appeal on the ground that the revision petition before the Shariat Court was time barred. Therefore, both the Supreme Court and the Shariat Court have not gone into the merits of the case. Now an application under section 540, Cr.P.C. Was moved which was allowed by the trial Court to the extent of P.Ws. 4 to 7, 10 and 11. The order passed by the trial Court was maintained by the Shariat Court. The Shariat Court further allowed complainant to produce P.W.2 as a witness. It is pertinent to note that the Shariat Court and the trial Court have allowed the application while invoking the powers under section 540, Cr.P.C. Which empowers the Court to summon any person as a witness or examine any person though not summoned as a witness and recall or re-examine any person when his evidence appears essential for the just decision of the case. The basic object of section 540, Cr.P.C. Is to ascertain the truth for reaching at a proper conclusion of the case. This view finds support from a case reported as Mazhar Hussain v.
The State 2002 PCr.LJ 614 wherein at page 619 it has been observed as under:--- "This power is not subject to any condition and can be exercised whether or not a person is cited as a witness in the challan. The only requirement for its invocation is that a person should be material witness and his evidence should be essential for just decision of the case. The object of section 540, Cr.P.C. Is intended to enable the Court to get at the truth and to arrive at a just decision. This power is not hedged by any technicalities."
6. It is also pertinent to note that the primary duty of a judge is to ascertain the truth. He cannot be absolved from this duty merely on the basis of some technicality because the basic object of the enactment of law, the rules and creation of Courts is. To administer justice and the justice could not be administered without ascertaining the truth. This view finds. Support from a case reported as Mst. Nishan Bibi v. The State and another 2002 PCr.LJ 1501 wherein at page 1504 it has been observed as under:-- "Section 540, Cr.P.C. In fact confers jurisdiction upon the Court, rather in appropriate cases imposes a duty upon the Courts for summoning witnesses who are not brought before the Court. So if it comes to the knowledge of the Court that there is a witness or witnesses whose statements are necessary to lead towards the truth and to promote cause of justice in a particular case then the Court can order production of such witnesses. It is the duty of the Court to do justice to the parties within the ambit of law and if the law bestows an authority or the discretion to the Court the same must be exercised in judicial manner and for advancement of justice and not against it.
Administration of justice is primarily and essentially an obligation cast on the Courts of law constituted for the purpose. Section 540, Cr.P.C. Is intended to enable the Court to get at the truth, as the ascertainment of truth is the primary duty imposed upon a Judge and he is not absolved from attempting to perform that duty merely because of technicalities. Court under section 540, Cr.P.C. Has plenary powers for summoning a person as witness or re-examine any person already examined at any time of the proceedings if such evidence appears essential for just determination of controversy involved in the matter. Section 540, Cr.P.C. Consists of two parts. The first part of the section gives discretionary power to summon or recall any person or witness mentioned in this apart. The second part of the section imposes an obligation on the Court to summon and examine or recall and re-examine any such person mentioned in the first part if his evidence appears essential to the just decision of the case."
7. The basic purpose of section 540,Cr.P.C. Is that the Court should examine any person who has any knowledge about the case and controversy therein so as to bring on record all the relevant material facts and to do complete justice after taking into consideration all the aspects of the case. This view finds support from a case reported as Ghazi Ogahi v. The State PLD 2002 Karachi 411 wherein it has been observed as under:--- "The purpose and import of the law laid down under section 540 is that Court should examine any person who has any knowledge about the case and the controversy therein so as to bring on record all the relevant and material facts and to do complete justice after taking into consideration all the aspects of the case."
8. The investigating agency, the counsel, the parties and the witnesses are mere instrument for revealing the truth so that the Court should reach at a proper conclusion and just decision. Section 540, Cr.P.C. Is basically meant for recording statement of such person who can help the Court in reaching a just decision of the case. The powers under section 540, Cr.P.C. Can be invoked in order to sift something D which could not be brought on record either due to negligence of parties or due to their intentional act. This view finds support from the case of Mst. Nishan Bibi referred to above. In the instant case P.W.2 was an eye-witness and P.Ws. 4 to 7, 10 and 11 are the witnesses of recovery.
They are very important witnesses for reaching at a proper conclusion. It was necessary for the trial Court to examine these witnesses. A murder has been committed and P.W.2 is an eye-witness while the other witnesses are witnesses of recovery, therefore their evidence is essential for the just decision of the case. In the previous round of litigation, the Supreme Court did not allow the prosecution to produce these witnesses E on the ground that the revision petition before the Shariat Court was time-barred but in the instant case an application was moved under section 540, Cr.,P.C. And the Court has to see whether the evidence of aforesaid witness is essential for the just decision of the case. In our view the evidence of the aforesaid witnesses is essential for the just decision of the case.
9. The upshot of the above discussion is that finding no force in this appeal it is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.