' MUHAMMAD AHSAN BHOON, J.---Through this Constitutional petition, the petitioner has challenged the order dated 5-4-2005 passed by the learned Additional Sessions Judge whereby he dismissed the version filed by the petitioner and maintained the order of the learned trial Court dated 2-11- 2004 vide which he allowed the application of the prosecution filed under section 540, Cr.P.C. For producing additional evidence.
2. Brief facts of the case are that respondent No, 1/complainant got registered F.I.R. No,9, dated 23- 1-1998 for offence under sections 337-F(i)/337-F(v)/337-F(vi)/ 148/149, P.P.C. At Police Station Dhoman Tehsil and District Chakwal against the petitioner and six others. After completing the investigation the Challan was submitted in the Court of learned Judicial Magistrate, Chakwal.
During the trial the prosecution produced six witnesses in all to prove its case. Thereafter the statements of petitioner as well as other accused were recorded under section 342, Cr.P.C. And case was adjourned for final arguments on 26-4-2004. Learned counsel for the petitioner/accused completed his arguments on 23-10-2004 and he pointed out the discrepancies and lacunas in the prosecution case and prayed for acquittal of the accused. After completion of the arguments the case was adjourned for arguments of the learned counsel for the complainant for 28-10-2004 but on 28-10-2004 instead of arguing the case the injured P.W. Muhammad Rafiq filed an application under section 540, Cr.P.C. For summoning of two doctors as P.Ws, which is subject matter of the present writ petition. The same was allowed by the learned Judicial Magistrate vide order dated 2- 11-2004. Aggrieved of the said order the petitioner filed revision petition before the learned Sessions Judge which was dismissed by the learned Additional Sessions Judge vide order dated 5-4-2005.
Hence this petition.
3. Learned counsel for the petitioner contends that the impugned order is illegal as the provisions of section 540, Cr.P.C. Cannot be sent in motion or in operation just to fill in the lacunas of the prosecution particularly when a similar application was also filed prior to the arguments. The same was withdrawn by the respondent/ complainant and the evidence of prosecution stood completed, statements of the accused were recorded under section 342, Cr.P.C. And arguments also completed. Thereafter there was no legal justifiction for passing the impugned order. He states that neither of the two witnesses who were ordered to be summoned, was placed in the calendar of witnesses according to the report under section 173, Cr . P. C . Nor they ever joined the investigation of the case. Reliance is placed on 1991 M LD 17,1997 PCr.LJ 1553, 1986 PCr.LJ 379. He further submits that the said application was moved after thirteen months of closure of prosecution evidence and also the same was not filed by the complainant rather it was filed by an injured witness and the same was not competent in view of the law laid down in a case reported as NLR 1987 Cr.35
4. Learned counsel for the complainant has opposed the prayer made in the writ petition and states that the impugned order was passed by the learned trial Court in accordance with law and the revision filed by the petitioner was also dismissed, hence the order passed by the Court of competent jurisdiction cannot be reversed in writ jurisdiction.
' He further contends that the case falls within the second category of the provisions of section 540, Cr.P.C. Which is a mandatory one, according to which, the Court can allow additional evidence if the same is necessary for the just decision of the case and even of its own, can summon any witness and record his statement. He further states that the document which the prosecution wanted to place on record was prepared after submission of report under 'section 173, Cr.P.C. That is why neither said document was available on the file nor the doctors were placed in the calendar of witnesses. He also submits that it is a settled proposition of law that basic object of the trial Court is to reach at the just conclusion and the technicalities cannot stand in the way of the prosecution. In this regard he has placed reliance on 2006, PCr.LJ 110.
5. Heard. Record perused.
6. Admittedly the case pertains to the year 1998 wherein the trial remained pending for five years and evidence of prosecution stood completed on 25-10-2003 and thereafter the case was adjourned for recording the statements of accused under section 342, Cr.P.C. For 28-10-2003. The case remained pending for one or the other reason and then after about one year of close of prosecution evidence, on 21-10-2004 application under section 540, Cr.P.C. Was filed by the complainant to exhibit the medical opinion of Medical Board and said application was still pending but the case was fixed for final arguments in the case. Hence on earlier filed application of complainant under section 540, Cr.P.C. On 23-10-2004 the learned counsel for the petitioner/accused completed his arguments and the case was adjourned for arguments of the prosecution for 28-10-2004 but on the said date the complainant moved another application under section 540, Cr.P.C. For summoning of two doctors namely Muhammad Rafiq and Muhammad Farooq and same is subject-matter of the present case. However, on 29-10-2004 the earlier application dated 21-10-2004 filed by the complainant was withdrawn, but the second application filed under section 540, Cr.P.C. Dated 28-10-2004 was ultimately accepted on 2-11-2004 by the learned trial Court. The facts mentioned above are not disputed by both the parties as is borne out from the certified copy of the interim orders which has been placed on record by the learned counsel, for the petitioner in the Court. It is also an admitted fact that the application which is A subject matter of the present litigation, was not filed by the complainant rather the same was filed by the injured P.W.
7. In my view the application under section 540, Cr.P.C. Was filed at a belated stage after one year of the closure of prosecution evidence and even the same was filed after the completion of arguments B of the defence, so thereafter if any lacuna was pointed out by the defence that cannot be allowed to be filled in at such a belated stage through additional evidence, as it is a settled proposition of law by this Court as C well as the Honourable Supreme Court that the provisions of section 540, Cr.P.C. Cannot be utilized just to fill in the lacunas in the case of either party.
8. Another important aspect of the case is that both the doctors who were summoned as prosecution witnesses through the impugned order neither joined the investigation nor were placed in the calendar of witnesses. Even the document which the complainant wanted to place in evidence that was also prepared in the month of March, 1998 after submission of report under section 173, Cr.P.C. So at this D stage of trial it would not be fair to place on record a document, authenticity of which is still to be determined just for the benefit of the prosecution. The Court while exercising powers under section 540, Cr.P.C. Should not assume the role of a prosecutor nor said power to be used to fill in the lacunas of the prosecution case, as the Court is supposed to act as arbiter and Judge. Neither a party nor an investigator is expected to fill in the lacunas left by the party. No doubt the powers under section, Cr.P.C. Can be exercised in an appropriate case wherein it is shown that a witness could not be summoned by either party in E normal procedure due to the circumstances which were beyond control or due to non-availability of witness but in the present case the whole prosecution evidence stood completed and the arguments heard. Hence the powers exercised by the learned trial Court in allowing the application for producing additional evidence was not justified.
9. In view of what has been discussed above, this petition is allowed and the impugned orders passed by the learned Courts below are set aside and in conesquence the application under section 540, Cr.P.C. Is dismissed and the learned trial Court is directed to decide the case within one month.