Ghulam Rabbani, J.--This Criminal Appeal with leave of the Court is directed against the judgement dated 25.10.2001 of a Division Bench of Lahore High Court, Lahore, whereby the Jail Appeal preferred by appellant was dismissed, the death sentence awarded to him under Section 302 PPC by the Judge, Special Court No.2 constituted under Anti-Terrorism Act, 1997, Gujranwala Division Gujranwala, was confirmed and the Murder Reference was answered in the affirmative.
2. Shahbaz Masih, appellant and Nazar Ahmed the other convict were tried for offences punishable under Sections 302, 324, 353 and 392 read with Section 34 PPC. The allegations, in nutshell, were that on 19.4.1994 at about 10.30 p.m. both of them, together, appeared in village Channi Virk, raised alarm (Larkana) to teach the police party of 25 police personnel a lesson for having raided the den of Narcotic Dealers. Appellant was alleged to have fired from his .222 bore rifle causing injuries to Ejaz Ahmad (deceased LHC No. 183) and P.W. Muhammad Asif, a Foot-constable and the other convict was alleged to have also picked up the service rifle of injured LHC Ejaz Ahmad and made their escape good on a mare. Later, both the injured were removed to hospital where injured Ejaz Ahmed succumbed to his injuries and died.
3. After conclusion of the trial appellant was convicted under Section 302/34 PPC and sentenced to suffer death for causing murder of Ejaz Ahmad constable. He was also convicted under Section 324/34 PPC for committing murderous assault on Muhammad Asif HC and sentenced to undergo R.I. for 10 years with fine of Rs. 10,000/-, in default whereof to undergo R.I. for one year more. Nazar Ahmad was convicted under Section '302/34 PPC and sentenced to suffer life imprisonment. He was further convicted under Section 392/34 PPC for taking away service rifle of Ejaz Ahmad deceased and sentenced to undergo R.I. for 10 years with fine of Rs.10,000/-, in default whereof to undergo R.I. for 1 year more. The sentences so awarded were ordered to run concurrent. Both the convicts challenged their convictions and sentences by way of Criminal Appeal No.81-J/99. A Murder Reference No.294-I/99 for confirmation of the death sentence was also filed. t 4. Learned' Division Bench of Lahore High Court dismissed the above Criminal Appeal of Appellant, upheld the decision of learned Judge, Special Court No.II, Anti-Terrorism Act, 1997, Gujranwala and answered the Murder Reference in affirmative vide impugned judgement. Feeling aggrieved appellant filed Jail Petition before this Court, in which, leave was granted vide order dated 8.7.2002 in the following terms:-- "Petitioner has been convicted u/S. 302/34 PPC for the murder of Ejaz Ahmed. The incident took place at 10.30 p.m. in the dark night. Riaz Ali Shah who was complainant of the case himself investigated the case. During the trial of the case, a statement allegedly made by the deceased u/S. 161 Cr.P.C. on the day of occurrence was also brought on the record whereas during the investigation, according to learned counsel, it was never produced. PW 13 Muhammad Asif though was injured at the spot but he was not shown as one of the witnesses in the challan. According to evidence of PW 13, the police party was armed with weapons but no one tried to fire at the accused to apprehend them. According to evidence of PW 13, Riaz All Shah fired from his Kalashinkov at the accused when they were running away on a mare. Riaz All Shah admitted that he fired at the accused but it did not hit because it was dark night. PW 13 admitted in his statement that he did not know the present petitioner prior to the occurrence and that his name was told to him by Riaz Ali Shah and Sultan.
2. The petitioner alongwith others was arrested after about one month of the date of occurrence.
No identification parade was conducted. "
5. In the instant case, prosecution examined complainant Riaz Ali Shah, Inspector as P.W.9 and Muhammad Asif, H.C. as PW-.13, both as eye-witnesses. P.W. Muhammad Asif was not shown in the calendar of the police report. Mr. Javed Aziz Sindhu, ASC, learned counsel for appellant, therefore, took a preliminary objection that the said witness could not be examined to corroborate the solitary evidence of other eyewitness Riaz Ali Shah since neither copy of his 161 Cr.P.C. statement was supplied to the appellant nor he was named in the calendar of the witnesses. Mr. Sindhu, next, argued that the evidence of both the eyewitnesses inspired no confidence the same being replete with material contradictions and that the prosecution story, as set up, was unbelievable. He emphasized that prosecution had failed to prove the case against both the convicts beyond any shadow of doubt, therefore, they were entitled to acquittal.
6. On the other hand, Mr. Ch. Munir Sadiq, learned Deputy Prosecutor General, Punjab appearing for the State expressed that a Court of criminal jurisdiction enjoyed plenary powers to summon and record testimony of any person acquainted with the facts of prosecution case and able to give evidence. In that, he added that even a person whose statement under Section 161 or 164 Cr.P.C. was not recorded and the calendar of witnesses; as well, did not bear his name, could be summoned by Court and his evidence recorded within terms of Section 265-F Cr.P.C. According to Mr. Ch. Munir the examination of PW-13 Muhammad Asif, was neither violative of the law nor it caused any prejudice to the case of appellant. He placed reliance on case of Muhammad Hussain versus the State (PLJ 1982 FSC 17) and the case of Waris Khan and others versus the State and others (PLJ 2005 Cr.C. (Peshawar) 119), He supported the impugned judgement and stated that both the convicts were rightly awarded the sentences.
7. We have given due attention to the oral submissions of both the learned counsel and with their assistance we have gone through the material available on record. The contention of learned Deputy Prosecutor General that a Court of criminal jurisdiction enjoys plenary power to summon a person to give evidence as witness is undeniable. Court enjoys full powers to summon and examine any person as a witness at any stage of trial; rather it is imperative for the Court within terms of Section 540 Cr.P.C. to summon and examine a person when evidence of such person appears to the Court essential to do the just decision of the case. Also, the Court can examine any person in attendance though not called as a witness. The underlying object, always, is to reach truth. However, the question in this case which requires our attention is whether a Court can, in pursuance of Section 265-F Cr.P.C.; summon and examine any person as a witness when his statement under Section 161 Cr.P.C or under Section 164 Cr.P.C. has not been recorded and his name does not appear in the calendar of witnesses. Contention of learned Deputy Prosecutor General is that the Court can do that within terms of said section which is part of scheme relating to trials before the High Court and the Courts of Sessions, (Chapter XXII-A) introduced by Law Reforms Ordinance, 1972 (XII of 1972). Therefore, to ascertain true import and purport of this provision of law, it will be advantageous to read the same conjointly with other relevant provision namely Sections 265-C, 265-D and Section 265-E provided in the chapter.
8. Sub-section (1) of Section 265-C envisages that in all cases instituted upon police report, copies of documents, namely; (a) the first information report; (b) the police report; (c) the statements of all witnesses recorded under Sections 161 and 164, and (d) the inspection note recorded by an investigating officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any, shall be supplied free of cost to the accused not later than seven days before the commencement of the trial; provided that, if any part of a statement recorded under Section 161 or Section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused. Sub-section (2) of the said section, which, relates to cases instituted upon complaint in writing, inter-alia, provides that the complainant shall state in the petition of complaint the substance of accusation, the names of his witnesses and the gist of evidence which he is likely to adduce at the trial, etc. and that the copies of complaint with documents and the statements under Section 200 or 202 shall be supplied free of cost to accused not later then seven days before the commencement of the trial. The next immediate provisions appearing in this chapter are Sections 265-D and 265-E Cr.P.C., which, respectively, relate to framing of charge and recording of plea. After that comes Section 265-F Cr.P.C., sub-section (1) whereof, envisages that if the accused does not plead guilty or the Court does not convict him on his plea, the Court shall proceed to hear the complaint if any) and take all such evidence as may be produced in support of the prosecution; provided the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court. Sub-section (2) of the said section provides that 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 case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it. Sub-section (3) of said section, envisages that the Court may refuse to summon such witness, if it is of the opinion that such witness is being called for the purpose of vexation or delay or defeating the ends 'of justice. Then subsection (4) provides that when the examination of the witnesses for prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence. Thus, reading of above provision of law, as a whole, reflects that the object of Section 265-F appears to be that where accused does not plead guilty or he is not convicted on his plea the Court shall issue summons to those persons whom the public prosecutor or complainant consider to be acquainted with the facts of the case and be able to give evidence for prosecution so that their evidence is taken by the Court. Nothing is provided in the said section that it shall be at the discretion of public prosecutor or the complainant, as the case may be, to name any such person whose statement under Section 161 Cr.P.C, or 164 Cr.P.C. has not been recorded and whose name does not appear in the calendar of witnesses. Had it been so, the very purpose of Section 265-C Cr.P.C. requiring obligatory supply of documents mentioned therein, well in advance, apparently with no purpose other than to enable the accused to know the prosecution case and meet the charges, if framed, would lapse into unconscionable consequences.
9. Now, we come to the case of Muhammad Hussain and the case of Waris Khan and others (supra) cited by learned Deputy Prosecutor General. In the first mentioned case the question of applicability of Section 265-F Cr.P.C. was not considered. In the other case, Court had examined a witness whose 161 Cr.P.C. statement was not recorded. Learned single Judge of Peshawar High Court held that section 265-F Cr.P.C. caters for such a situation where the Court may ascertain from the complainant the name of any person likely to be acquainted with the facts of case and be able to give evidence for prosecution. With profound respects, having expressed on the point in the foregoing para, we do not find ourselves inclined to subscribe to the above view.
10. Before, we touch upon the quality of evidence of eyewitnesses namely P.W. Riaz Ali Shah, Inspector and P.W. Muhammad Asif, H.C., it may be stated that neither Copy of 161 Cr.P.C. statement of PW (Muhammad Asif, HC) was supplied to the appellant nor name of this witness was shown in the calendar of witnesses, which fact was not controverted. Be that as it may, the fact remains that as an injured he was named in the F.I.R. which fact appeared in the evidence, as well. He was examined by the Court as a witness during the course of trial, therefore, no violation. of law seems to have taken place. Nothing was brought to our notice to hold that the defence had raised any objection at the time of recording testimony of this witness; rather he was subjected to lengthy cross-examination, therefore, it cannot be said that the appellant was prejudiced, in his defence.
11. In the above scenario of the case, we have carefully scanaed the evidence of both the P.Ws. in order to appreciate its intrinsic value. P.W. Riaz Ali Shah stated in his evidence that the assailants fired while riding on a mare, whereas P.W. Muhammad Asif stated that both the assailants dismounted, fired at the raiding party and left the place on the same mare. This witness stated in his evidence that Riaz Ali Shah, Inspector fired from his Kalashinkov towards the assailants while P.W. Riaz Ali Shah controverted this statement by stating in his evidence that the accused decamped, therefore, he could not fire at the assailants due to darkness. There was a huge number of Police personnel available at the place of incident. Admittedly, they were armed with a variety of weapons but none of them is stated to have returned the fires of assailants. This conduct seems to be against normal human behaviour, moreso of well-trained men, conscious of the fact that two of them were gunned down by the assailants taking away their Service Rifle. Besides, P.W.
Muhammad Asif stated in his deposition that the names of appellant and other convict were disclosed to raiding party by P.W. Riaz Ali Shah and Ch. Sultan of Channi Virk; no such statement was made by the other witness examined by prosecution.
12. To sum up, from above narration, it is quite evident that on the main part of incident, such as firing of assailants resulting in loss of precious life of a police personnel on one hand and injury to an other, evidence of both the eye-witnesses is poles apart.
13. Beside the above, on the point whether it could be possible for PW Riaz Ali Shah to identify the assailants at the time of incident to let his companions know their names, it may be stated that the prosecution case, as set up, was that the incident took place at about 10.30. p.m. However, neither PW Riaz Ali Shah nor the other eyewitness stated that there was enough light to make it possible to identify the assailants; rather, P.W. Riaz Ali Shah admitted in his cross-examination that he had not mentioned the source of light in Exh. P.H. In fact there was darkness as would be evident from other statement of this witness, in which, he stated that he could not fire at the accused (assailants) due to darkness meaning thereby that the assailants were not visible. The same being so it was quite obvious that there was remote possibility for PW Riaz Ali Shah to have identified the assailants muchless disclosing their names to his companions.
14.Evidence of P.W. Muhammad Asif reflects that one Ch. Sultan of Channi Virk was present at the spot at the time of incident. He was the only person other than police party available at material time, however, prosecution preferred not to examine this witness. The presumption would be that the prosecution was fearful that he would not support its case, if examined. In the circumstances, we feel no hesitation to agree with Mr. Sindhu, learned counsel for appellant that prosecution failed to prove the case against the appellant and the co-convict beyond any shadow of doubt. '
15.Consequently, by our short order, we allowed this appeal, judgements of trial Court as well as that of High Court were set aside and the appellant Shahbaz Masih was acquitted of the charge.
He was ordered to be released unless to be detained for any other cause. Co-convict Nazar Ahmad, who though, had not filed any appeal against his conviction and sentences, was held entitled to similar treatment.
16.Above are the reasons for our short order.