IJAZ AHMAD CHAUDHRY, C.J.---Through this petition under section 435, Cr.P.C. the petitioner has called in question the order dated 27-1-2011 passed by the learned Additional Sessions Judge, Toba Tek Singh camp at Kamalia through which he has ordered to summon two Investigating Officers as Court witnesses.
2. The facts giving rise to the filing of this revision petition are that the petitioner is the complainant of F.I.R. No, 596 registered at Police Station Pir Mahal, Tehsil Kamalia, District Toba Tek Singh on 30- 11-2008 in respect of offences under sections. 302/148/149, P.P.C. with regard to the murder of his father. The petitioner/complainant had involved as many as nine accused in the above said criminal case but during the investigation of this case two Investigating Officers had declared them innocent. Being aggrieved with the opinion of the Investigating Officers the petitioner instituted a private complaint wherein the accused were summoned to face trial. After framing of charge against the accused persons the entire prosecution evidence was recorded but when the accused persons were asked to produce Defence evidence they moved an application for summoning of the above said two Investigating Officers for examining them as Court Witnesses.
The petitioner/complainant seriously contested the application on the ground that if the above mentioned Investigating Officers are summoned as Court Witnesses case of the petitioner/complainant would be prejudiced. He has taken a stance that if the defence intended to examine the above said police officers, it can produce them as Defence Witnesses. The application filed by the accused/respondents Nos. 1 to 4 was accepted by the learned trial Court vide impugned order dated 27-1-2011 wherein both the above said Investigating Officers were ordered to appear as Court witnesses. Hence the present revision petition before this Court.
3. The learned counsel for the petitioner contends that the witnesses required to be produced as Court Witnesses are police officers who conducted the investigation and declared the accused innocent. In case they are allowed to produce as Court Witnesses then they would definitely depose against the petitioner which factor would cause prejudice to the case of the prosecution/complainant. The prosecution gave up the above said witnesses required to examine and if the respondents are still adamant to examine them as witnesses they can produce them as.
Defence Witnesses. The statements of the above said police officials ought to be recorded by the learned trial Court as Court Witnesses will be inadmissible in evidence. The true spirit of section 540, Cr.P.C. does not allow the learned trial Court to call them as Court Witnesses. The learned counsel for the petitioner has placed reliance on the cases of Haji Muhammad Abdullah v. The State (1995 SCM R 821), Karam All v. Ghulam All and 9 others (1997 M LD 1571), Farman Ali and 2 others v. The State (1992 SCM R 2055) and Muhammad Ashraf The State and 4 others (2007 PCr.LJ 905).
4. After hearing the learned counsel for the petitioner and going through the documents appended with this revision petition I have noticed that the grievance of the petitioner is that the witnesses, required to be examined, have not conducted a transparent investigation in this case being connived with the accused party. If they were brought on the witness box as Court Witnesses, they will obviously extend favour to the ' accused party which will cause prejudice to the case of the petitioner. However, the complainant has given his ascent to the effect that the accused can examine the above said police officers as Defence Witnesses. To better appreciate the contentions of the petitioner the provisions of section 540, Cr.P.C. are reproduced as under:-- "Any Court may, at any stage of any inquiry, trial or other proceeding 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."
'The perusal of section 540, Cr.P.C. reflects that jurisdiction of the court is divided into two parts, first is discretionary in nature and the second is mandatory. The court has unfettered powers to compulsorily examine any person whose evidence will provide help to elucidate/ ascertain the truth for reaching at a just and fair conclusion of the case. The provisions of section 540, Cr.P.C. extend the discretion of the trial Court in a broad manner and empower it to associate any person with the trial conversant with the facts and features of the case who otherwise is given up by any party. The judicial proceedings are always meant to promote the just decisions without prejudice to any claim put forwarded by the rival parties of criminal cases against each other. It lies with the A learned trial Court to examine the facts and circumstances of the matter with great care and caution and if it reaches to a conclusion that the evidence of a particular person will prove stepping-stone in imparting a just decision of the matter, then it is obligatory upon the court to summon such person for adducing evidence. Over and above all these, if the prosecution gives up a material witness as unnecessary even then the trial Court is not helpless into the matter and cannot be a silent spectator with blind eyes and deaf ears. Keeping in view the facts and circumstances of each and every case the learned trial Court has to regulate and conduct the trial while remaining within the tour corners of law.
5. In the case in hand as stated above the witnesses ordered to have been summoned by the learned trial Court as Court Witnesses are police officers who have conducted investigation and during the investigation of this case they have get in touch themselves with each and every aspect of the matter such as recording the statements of the witnesses under section 161, Cr.P.C. and associating them with the investigation by visiting the place of occurrence, etc. They both are material witnesses and would bring on record certain characteristic of the case which will of course prove ready to lend a hand in deciding the case justly and fairly. If both the witnesses are summoned to adduce evidence both the parties have ample opportunity to exercise their right of cross-examination and, thus, no harm will cause to the case of either party. Although sometimes the person should not be examined by the courts just to till lacunae of the prosecution or the defence yet the courts have to keep in mind that the evidence of such person would extend justice to both the parties and not to a Particular side. The case-law relied upon by the learned counsel for the petitioner do not relate to the facts and feature of this case, 7.(sic.) Even otherwise no jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning has been -pointed out by the 'learned counsel for the petitioner so as to warrant an interference in the impugned order dated 27-1-2011 passed by the learned Additional Sessions Judge-I, Toba Tek Singh, camp at Kamalia. This revision petition has no force and the same is dismissed in limine.