' KHALILUR RAHMAN, J.--By this petition under section 439, Cr. P. C., petitioners who are facing trial on charges under sections 302/307/148/ 149, P. P. C. Question the legality of the order of the learned trial Judge, t3ajrat dated 26th May, 1979 summoning certain prosecution witnesses as Court witnesses.
2. Facts as are relevant to the disposal of this petition may be noticed briefly thus :- ' On 16th April, 1979 at the close of prosecution case, learned Additional Public Prosecutor made a statement giving up certain prosecution witnesses inter alia, Muhammad Ilayat son of Ranjha, Muhammad Khan son of Phola Khan and Khushi Muhammad son of Sakhi.
' Notwithstanding, Muhammad Sharif complainant in the case moved an application through Khushi Muhammad son of Sajjad, his relation, on 19th April, 1979 contending that his counsel had given up witnesses without consulting him and prayed that the above-named three persons be summoned again to be examined as prosecution witnesses. It may be seen that by then, even the statements of petitioners had been recorded and the case fixed for arguments.
' This application, it appears, was fixed for disposal on 2nd May, 1979 when the complainant again through same Khushi Mohammad moved another application praying for the withdrawal of the application dated 19th April, 1979, apprehending that witnesses sought to be summoned, had, undoubtedly, been won over by the accused party. Be that as it may, learned trial Judge rejected the application dated 19th April, 1979, of course taking into consideration the aspect that prayer for the withdrawal of the same has been made, vide his order dated 20th May, 1979 and adjourned the case to 7th May, 1979 for arguments and then to 13th May, 1979 when arguments were heard and case fixed for orders on 19th May, 1979. Learned trial Judge, on account of non-availability of time, could not dictate the judgment by 19th May, 1979 and postponed the case to 22nd May, 1979. On 22nd May, 1979, under the impression that these persons having been injured in the occurrence, their evidence would be essential for the just decision of the case, he again began to consider the desirability of examining them as Court witnesses. Matter, at the request of the parties, was adjourned to 24th May, 1979. Ultimately vide impugned order he decided to examine them as Court witnesses. Legality of this order, as already noticed, is being questioned before me.
3. Complainant who is confined in jail in connection with some other case, appeared in handcuffs on 17th June, 1979. Before me he has taken up the position that his counsel in collusion with accused party, had given up these witnesses and supported the impugned order.
4. Learned counsel for the petitioners, has raised two fold contentions. Firstly, that the order impugned is tantamount to a review of the order dated 2nd May, 1979 and therefore, illegel. Under the Code of Criminal Procedure a Criminal Court is not empowered to review its order. Reliance was placed on Abdul Haleem v. Qurban Hussain (1), Fazal Hussain v. The State and two others (2) and Rehmat All alias Lunda v. The State (3). Secondly that the order impugned is highly improper and greatly prejudicial to the defense case. In elaborating the second contention he submitted that a Court under section 540, Cr. P. C. Cannot summon a prosecution witness as a Court Witness ; words "any person" used in this section shall have to be read as any person other than a prosecution witness. In case these words are given wider meaning, it is likely to defeat other provisions of the Code beneficial to the accused. Section 162 enacts an absolute bar against the use of statement of a person reduce ed into writing during the investigation, but as embodied in the first proviso to this section if such a person is called for the prosecution, the accused can use the statement for contradicting him in the manner provided under section 145, Evidence Act.
However if the prosecution gives up such a witness and he is examined as Court witness right given to the accused to contradict him with his police statement is denied to him. Reliance was placed on Tahsildar Singh and another v. State of U. P. (4), Gurditta Shah and another v. Emperor (5), Vajrala Koti Reddi and others' case (6) and Bhupal Chandra Naskar and others v. Emperor (7), He concluded that section 540 should be resorted to in cases where the parties had no opportunity to call a witness and still in the opinion of the Court, his evidence is essential for the just decision of the case and this provision should not be made use of to fill in the lacunas in the prosecution case.
He cited Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf Khan (8), Samru v. The State (9) and Muhammad Ehsan v. The State( 10).
5. Learned counsel for the State, on the other hand, argued that the trial Court passed order dated 2nd May, 1979 on the application of coin plain ant praying for re-summoning of the witnesses given up by the
(1) PLD 1965 Lah. 570 (3) 1971 SCMR 513 (5) AIR 1927 Lah. 713 (7) 44 C W N 451
(9) PLD 1974 Lah. 108 (2) 1976 P Cr. L J 747
(4) A I tt 1959 SC 1012
(6) AIR 1960 Andh. Pra. 76
(8) PLD 1962 Lab. 558
(10) PLD 1975 Lab. 1431 ' prosecution and declined to summon them as in the meantime even the complainant had withdrawn his application. In the impugned order, Court for the first time considered the aspect if examination of the given up witnesses was essential to the just decision of the case and therefore decided to summon them under section 540. There is no basis for the view that the impugned order is review of the order dated 2nd May, 1979. He then argued that a prosecution witness even if summoned under section 540, remains a prosecution witness and therefore, can be confronted with his previous statement. Courts while interpreting provisions of a Statute should not add to it. In the end he submitted that trial Court, in its discretion, having decided to summon the witnesses, this Court as a revisional Court, should not interfere with the order. He emphasized that a Court, if it appears to it that the evidence of a witness is essential for a just decision of the case, is obliged to summon him as embodied in second part of section 540, Cr. P. C. He relied on the case of All Nawaz Gardezi.
6. I have given careful consideration to the arguments of both sides and find no force in any of the contentions raised in support of this petition. Learned trial Judge by order dated 2nd May, 1979 simply, disposed of two applications, dated 19th April, 1979 for summoning the given up witnesses and dated 2nd May, 1979 withdrawing the application dated A 19th April, 1979, of the complainant and did not pass order in terms ofl section 540, Cr. P. C. It cannot, therefore, be said that by the impugned, order, order dated 2nd May, 1979 was reviewed. Review has not been defined as a term of art and in its ordinary dictionary meaning means viewing again ; a reconsideration. First contention therefore has no force and is repelled.
' Second contention raised, though alluring, too, has not impressed me. No doubt in the cases cited it has, generally been held that a witness can be confronted with his police statement only when he is called for prosecution, yet in none of these cases point now raised before me was directly considered. However in Hansraj Harijiwan Bhate and others v. Emperor (1), under somewhat different circumstances, the term 'Court witness', as understood with reference to section 540 was considered thus .1- "One usually of course associates section 540 with Court witnesses in the above sense, but there is nothing in the section itself so to limit it, and I must find that it could apply also to witnesses for the prosecution as well as to witnesses for the defence. The section says : 'Any Court may summon any person as a witness.' It does not say in what capacity."
Term 'Court witness', generally associated with section 540, Cr. P. C. Is not a term of art. Under the first part of the section, Court may at any stage of any inquiry, trial 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 under second part, Court is obliged to summon and examine or recall and re-examine such person, if his evidence appears to it essential to the just decision of the case. Provisions of section 540, therefore, cannot be so interpreted', as to defeat other provisions of the Code. A witness, notwithstanding'
(1) AIR 1940 Nag. 390 ' that he is called and examined or recalled or Te-examined under section 540, Cr. P. C. Retains his character as a prosecution or a defence witness, as the case may be. He will be a Court witness simplicity if he was cited neither a prosecution nor a defence witness. I am therefore, inclined to hold that a given up prosecution witness if examined under section 540, Cr. P. C. Can be confronted with his police statement in terms of section 162, Cr. P. C.
7. I now proceed to consider whether the order impugned although legal was improper, remembering that this Court will, especially at an interlocutory stage, not interfere unless the impropriety is a flagrant one and if not avoided,. Would entail miscarriage of justice. Perusal of the order impugned shows that the learned trial Judge has given good reasons for holding the view that the evidence of these persons is essential for a just decision of the case he has therefore, given effect to the command of law. It is too early to say if the evidence of these persons is to benefit the prosecution or the defense, yet these persons having been injured in the occurrence, there cannot be two opinions on the aspect that their testimony would be essential in the just decision of the case. Underlying C object in enacting this provision is to enable the Court to arrive at the truth irrespective of the fact that prosecution or the defense has failed to produce some evidence necessary in the case. Order impugned tends to achieve this object.
8. For all that has been stated above, I am of the view that no case has been made out for interference by this Court. This petition fails and is dismissed accordingly.