SARDAR M. ASHRAF KHAN, J.--- The above titled revision petition is directed against the order of Additional District Criminal Court Sehnsa dated 28-7-2006 whereby, the statement of the deceased recorded under section 161, Cr.P.C. During his life time was denied to be exhibited while recording the statement of the Investigating Officer.
2. The brief facts forming the background of the instant revision petition are that the petitioner, Said Muhammad, on 21-7-2005 lodged an F.I.R. Under sections 324, 341 and 337/34, A.P.C. Against the accused-respondents alleging therein that Zahid Mehmood son of the petitioner was attacked by accused-respondents consequently, he received serious injuries. It is further alleged that the statement of Zahid Mehmood was recorded on 22-7-2005 which is annexed with original file of the trial, Court. Thereafter, the said Zahid Mehmood succumbed to injuries and a case under section 302, A.P.C. Read with section 13/20/65, Arms Act, was added.
3. In this case almost all the prosecution evidence has been recorded by the trial Court. However, during the statement of (P.W.18)' the statement of the deceased Zahid Mehmood recorded under section 161, Cr.P.C. Could not be exhibited inadvertently during the examination-in-chief. The learned counsel for the petitioner requested to exhibit the same at the time of cross-examination, the Court postponed the proceedings and thereafter on 28-7-2006 the request was disallowed.
Hence this revision petition.
4. Mirza Muhammad Nisar, the learned counsel for the petitioner submitted that the trial Court committed grave illegality while disallowing the request made by him because the statement of the Investigating Officer-was continuing and as such if the statement under section 161, Cr.P.C.
Required to be exhibited was allowed, it would have been more appropriate for just and proper decision of the case. He further contended that the Court- was competent to allow the same under section 540, Cr.P.C., but the trial Court violated the mandatory provision of law, and disallowed the request of the petitioner.
5. The learned A.A.-G., supported the arguments raised by the learned counsel for the petitioner.
6. On the other hand, the learned counsel for the respondents apposed the contentions of learned counsel for the petitioner and submitted that the trial Court acted quite in accordance with law which warrants no interference by this Court. It is further contended that the prosecution wanted to fill up the lacuna and the benefit arising out of the non-exhibition of statement of a witness, under section 161, Cr.P.C. Can be availed by the accused only. The learned counsel submitted that the trial Court committed no illegality or irregularity while passing the impugned order. The learned counsel defended the impugned order on all counts.
7. I have heard the learned counsel for the parties and perused the record with utmost care.
8. The exhibition of the document is in fact a piece of evidence subject to the cross-examination, It may or may not be accepted by the trial Court at the time of final judgment but the exhibition of the same during proceedings of the case cannot be denied just for the reason that it was not put to the witness at the time of examination-in-chief. It transpires from the record that the statement under section 161, Cr.P.C. Which required to be exhibited is part of the record annexed with the report submitted under section 173, Cr.P.C. And the same has been cross-examined by the defence in the following manner.
9. It appears from the above mentioned question asked by the defence counsel that the existence of the statement under section 161, Cr.P.C. Has not' been challenged, instead the same has been suggested not to be recorded in D.H.Q. Therefore, it cannot be said that if the learned counsel for the prosecution, inadvertently did not exhibit the statement, the prosecution is introducing a new evidence or by doing so they are trying to fill up any lacuna, which prejudices the accused. In this regard a reference can be made to section 540, Cr.P.C. In which it is opined that re-examination of any person already examined at any stage of the proceedings, if appears to be essential for just determination of the controversy, the same may be recalled.
10. It will he relevant to note here that to reach at the truth is the primary duty imposed upon the Court for administration of justice and the Court could not base its opinion merely on technicalities.
The Court should not leave its opinion absolutely on the mercy of contentions of the parties rather the Court is -required to act in a way which is just and equitable for proper adjudication of the case. The statement required to be exhibited is very much essential for just decision of the case. D Therefore, the trial Court was not justified to observe that the prosecution wanted to fill up the lacuna. The reason given by the trial Court is not well-founded because the matter is not of filling up the lacuna or giving any advantage to the parties but the object is to search the truth and reach at definite conclusion with regard to the guilt or innocence of the accused and that can only be achieved by giving the opportunity for adducing the relevant evidence, for securing the ends of justice.
11. It is contended by the learned counsel for the respondents that the benefit arising out of the non-exhibition of statement of a witness under section 161, Cr.P.C. Can be availed by the accused only and the prosecution is not entitled to get the benefit of the same. This contention of the learned counsel is not well-founded because the Courts are not required to indulge into benefits of the one party or the other but what is required under law is to look into the evidence available which enables the Court to reach at the definite conclusion with regard to the guilt or innocence of the accused. Therefore, keeping in view the overall circumstance of the case, the impugned order is set aside by accepting the revision petition and the case is remanded with the direction that the trial Court after summoning the witness, re-examine him in accordance with law.