'MUHAMMAD SAFDAR KHAN SIKANDRI, J.- The instant revision petition is arising from the impugned order dated 4-11-2009 passed by Additional Sessions Judge-II, Lakki Marwat whereby the application filed by the complainant under section 540 Cr. PC to requisition the record in respect of his short leave application dated 15-12-1994 from United Bank Limited Torica Branch, District Bannu was rejected.
2. The petitioner Noshad Khan is the complainant whereas respondent Irshad Khan is the accused in case F.I.R. No,458 dated 15-12-1994 registered under sections 302/34 P.P.C. At Police Station Lakki, District Lakki Marwat.
3. During the trial, after conclusion of the evidence, the petitioner-complainant submitted an application before the trial Court under section 540 Cr.PC for summoning Mir Aslam, Cashier UBL, Torka Branch, Bannu along with record containing the application dated 15-12-1994 submitted by the complainant for short leave, however, the same was contested by the other party and accordingly rejected by the Court which gave rise to the instant criminal revision.
4. Faqir Mehboobul Hameed Advocate, counsel for the petitioner contended that the trial Court has not appropriately considered the plea of short leave taken by the complainant as the same plea has been agitated in the Court's statement as well as questioned by the defence in cross- examination. Counsel for the petitioner contended that the burden lies on the prosecution to establish its case, therefore, there is no bar on the complainant to submit application at any stage of the proceedings for summoning any witness or document through the Court. He urged that the impugned order is erroneous in the eyes of law because the same proposition has time and again been discussed in the repeated dicta of higher Courts and in this context, he relied on 2001 SCM R 424 and PCr,LJ 1999 Kar.
1947.
5. On the other hand, Mr. Abdul Latif Khan Baloch assisted by Haji Mirza Ali Khan Advocates, learned counsel for the respondent urged before me that the document likely to be requisitioned by the petitioner through Court in the light of section 540 Cr.P.C. Is fabricated and the result of afterthought at a belated stage after fifteen years. They further urged that the trial Court has correctly refused the petition as the same was already discussed in the previous trial and the production of this document is not essential for just decision of the case.
6. I gave my anxious consideration to the above arguments and gone through the materials available before me.
7. In order to understand the controversy, I reproduce the embodiments of section 540 Cr.P.C. As under:--- "540. Power to summon material witness or examine persons present. ---Any Court may, at any stage of any inquiry, trial or other proceedings under this. Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."
8. In view of the embodiments quoted above and the submissions advanced at the bar, I am of the view that the petitioner has agitated this stance in his statement recorded as P.W.10 in the examination-inchief in the following words:--- "During the days of occurrence I was the employee of UBL and was posted at Torka Branch, Bannu.
On the day of occurrence, I had gone to said Branch as usual for performing duty. At about 11 a.m.
Deceased Shahab Khan on telephone informed me that he has exchanged hot words with absconding accused Irshad Khan and I should immediately come back to the village. At about 11- 30 a.m. I sought short leave from the concerned Manager and came to Lakki Minakhel and reached here at 1 p.m."
'The stand taken in exanimation-inchief has been subjected to cross-examination by the defence counsel wherein the petitioner (P. W.10) has answered that.
"I produce a copy of my application for short leave, which was sanctioned on 15-12-1994 and I obtained the copy from the Branch Manager on 15-12-1994 before coming to my home. Again said, I do not remember that when I got the attested copy of my application from the Bank. It is incorrect to suggest that the narration about the receipt on telephone call, my applying for short leave and my coming to home is a fabricated and manufactured."
9. In view of the above deposition, it thus becomes sine qua non for the trial Court to examine such like evidence in its true perspective giving the party full opportunity to establish the stand in accordance with Qanun-e-Shahadat and it is up to the trial Court to accept or reject any B stand taken by the party like in the instant case whereby the complainant requested to the Court through an application for establishing the fact of his presence on the spot though the same was discarded in the previous trial which is not binding on the existing trial. In Imran Ashraf and 7 others v. The State 2001 SCM R 424 the honourable apex Court has held that evidence intended to be produced on record would be a stepping stone necessary for just decision of the case and only on such satisfaction, permission can be accorded. In view of this dictum, it is thus clear that when the complainant has endeavored to establish his presence at the spot and controverted in the cross- examination by the defence counsel, it is up to the trial c Court to resolve this question at the time of pronouncement of judgment. In another judgment handed down in the case of Additional Advocate General v. Additional Sessions Judge-II, Khairpur and two others 1999 PCr.LJ 1947 it is held by his lordship that the names of the persons who are sought by the complainant to be summoned for examination, the impugned order of trial Court refusing to summon the said witnesses was set aside in circumstances and trial Court was directed to procure their attendance by issuing coercive process and examine them without loss of time.
10. As envisaged from the impugned order, the trial Court has expressed 1 opinion to some extent while not affording opportunity to the complainant for establishing his case being burdened on his shoulders. The trial Court is sitting like a Referee watching the proceedings to be conducted by both the sides and trial Court is supposed to deal both the sides equally without discarding their pleas when genuine and according to law. If, for the sake of arguments, the accused wants to produce any defence witness, the trial Court will be duty bound to summon that very D.W. Through Court in order to facilitate the case for disposal judiciously on merits.
11. Without going deep into the merits of the case, I am constrained to hold that the grounds taken by the petitioner in the revision petition coupled with the arguments advanced at the bar by counsel for petitioner are weighty and the impugned order warrants interference.
12. For what has been discussed above, this revision petition is accepted, the impugned order is set aside and application of the petitioner submitted for summoning the witness from the Bank is hereby allowed for just decision of the case on merits by the trial Court.