' SARDAR MUHAMMAD ASLAM, J.---A case was registered vide F.I.R. No,9 dated 23-1-1998 for offences under sections 337-F(i), 337-F(v), 337-F(vi), 148 and 149, P.P.C. At Police Station Dhoman against the respondent. Report under section 173, Cr.P.C. Was submitted in the Court. Trial was commenced.
Prosecution produced witnesses mentioned in the calendar of witnesses and closed its side.
Accused were examined under section 342, Cr.P.C. .And the matter was listed for addressing of final arguments on 26-4-2004. At this juncture, an application under section 540, Cr.P.C. Was moved by the complainant Ansar Mehmood on 21-10-2004 seeking permission for production of opinion rendered by the Medical Board. Notwithstanding, the submission of above application, arguments were addressed on accused behalf on 23-10-2004 and case was adjourned to 28-10-2004, for arguments by prosecution side. Application filed on 21-10-2004, was withdrawn on 29-10-2004, and, instead another application under section 540, Cr.P.C. Was filed seeking permission to summon Dr. Muhammad Farooq Nadeem, Radiologist, DHQ Rawalpindi and Dr. Mushtaq Ahmad Bhatti, along with report rendered by the Medical Board. This petition was allowed by the trial Court on 2-11-2004, which was assailed in revision by the accused unsuccessfully. The order of the revisional Court was challenged by accused-respondent No,1, in the constitutional jurisdiction of the Lahore High Court, Rawalpindi Bench, and, an Hon'ble Judge-in-Chamber by his judgment dated 21-10-2008, allowed the same by setting-aside the order of two Courts below, recording dismissal of the petition under section 540, Cr.P.C, on the ground that application was filed with considerable delay. Leave is sought from the above judgment. It came up for hearing before this Court on 26-12-2008, and following order was passed:-- "It is alleged that the summoning of Dr. Mushtaq Bhatti and Radiologist, Dr. Muhammad Farooq, allowed by two Courts below under section 540, Cr.P.C. Was refused by the High Court, exercising writ jurisdiction, on the only ground of delay. That the delay is immaterial as per verdict of this Court in Karam Din v. Abdul Aziz (PLJ 2004 Supreme Court 642) and, moreover, the trial Court was the best Judge of observing as to which witness should or should not be summoned. No fetters can be put on the power of the trial Court to call or re-call a witness under section 540, Cr.P.C. Notice to the respondents as well as the State be issued for a date in office."
2. We have heard the learned counsel for the petitioner, respondent No,1 and the learned Additional Advocate-General, appearing for the State and perused the record. In support of the petition learned counsel reiterated his arguments reproduced above with emphasis that delay in making an application for summoning of witnesses is immaterial, and, the only and foremost requirement is that such evidence is essential for just decision of the case. He relied upon the cases of Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 Supreme Court 95); The State v.
Muhammad Yaqoob and others (2001 SCM R 308) and Shahbaz Masih v. The State 2007 SCM R 1631.
3. On the other hand, learned counsel while opposing the above contentions argued that the prosecution was negligent, inasmuch as, names of the witnesses were not mentioned in the calendar of witnesses and despite the pendency of the case for almost six years, no effort was made at trial to secure presence of the witnesses, being summoned now. Learned, Additional Advocate-General submitted that both the Courts below exercised jurisdiction vested in them lawfully; not amenable to interference in exercise of constitutional jurisdiction.
4. We have given our conscious consideration to the arguments advanced above, and have gone through the record with their able assistance. Muhammad Rafiq, injured was examined by Medical Officer, who issued medico-legal certificate (MLC) which was annexed with the report under section 173, Cr.P.C. At the request of the accused-respondent No, 1 questioning the MLC, a medical board was constituted, which rendered its opinion. The injured required production of the above two documents along with their authors. Before proceeding further, it is advantageous to reproduce section 540, Cr.P.C.:-- "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".
5. Bare reading of section 540, Cr.P.C. Transpires that where an evidence is essential for just decision of the case, it is obligatory upon the Court to allow its production and examination.
Examining the law on the subject, reference can be had to Muhammad Murad Abro v. The State through A.G. Balochistan (2004 SCM R 966), wherein it was held that provision of section 540, Cr.P.C., is to enable the Court to go at the truth of the matter, so as to come to a proper conclusion. In the case under trial, it is obligatory to summon a person whose evidence is essential for just decision of the case. Similar view was taken in Painda Gul and another v. The State and another (1987 SCM R 886), with addition that the Court has widest powers under section 540, Cr.P.C. And can summon a witness for examination at any stage of the case. However, while exercising discretion it must guard itself against the exploitation of this power by a litigant party and keep in view the guiding principle what the ends of justice demand. Cases titled as Dildar v. State through Pakistan Narcotics Board, Quetta (PLD 2001 Supreme Court 384) and the State v. Muhammad Yaqoob (2001 SCM R 308), lay down guide. Observations made in 2001 SCM R 308, are quoted:-- "It is thus manifest that calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose but it is the duty of the Court to do complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object. It is salutary principle of judicial proceedings in criminal cases to find out the truth and to arrive at a correct conclusion and to see that an innocent person is not punished merely because of certain technical omission on his part or on the part of the Court. It is correct that every criminal case has its own facts and, therefore, no hard and fast rule criteria for general application can be laid down in this respect., but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of the section 540, Cr.P.C., it is obligatory on the Court to examine such a witness ignoring technical/formal objection in this respect as to do justice and to avoid miscarriage of justice."
6. In the case of Pervaiz Ahmad v. Munir Ahmad (1998 SCM R 326) this Court allowed examination of witnesses, which promote the ends of justice. Again section 540, Cr.P.C. Was examined in the cases of Muhammad Aslam alias Accha and others v. The State (1984 SCM R 353); Shakir Muhammad and another v. The State (PLD 1985 Supreme Court 357); Mehrzad Khan v. The State (PLD 1991 Supreme Court 430); Miss Benazir Bhutto v. President of Pakistan and another (1992 SCM R 140); and Abdul Hamid Mian v. Muhammad Nawaz Kasuri (2002 SCM R 468), wherein it was laid-down, that the Court has no choice to refuse examination of witnesses under section 540, Cr.P.C, when the same is essentially required for just decision of the case. The technicalities should not be allowed to come in the way to sacrifice justice. In Muhammad Azam v. Muhammad Iqbal others (PLD 1984 Supreme Court 95), it was held that Court has unfettered powers to examine any witness at any stage of the proceedings, if the evidence is essential for just decision and in such a situation rule of "avoidance to fill gaps" negates the very concept of justice. In Abdul Salam v. The State (2002 SCMR 102), the trial Court refused permission to examine, Chairman of a Medical Board, on the ground that his name was not mentioned in the calendar of witnesses, which order was affirmed by the High Court. This Court allowed the petition and directed examination of the Chairman, Medical Board holding him a material witness notwithstanding, omission of his name in the calendar of witnesses.
7. In the case of Karam Din (supra) it was held:-- `"Section. 540 of the Code of Criminal Procedure, 1898 empowers the trial Court to call or recall any witness at any stage of the trial if his testimony was considered relevant and necessary to reach truth. Keeping in view the circumstances of the case, we disagree with the view of learned judge of the High Court that trial Court, in summoning and examining the Partwari (C.W.1) and Gardawar (C.W.2) as Court Witnesses had filled the lacunae of the prosecution case. We are of the view, that their statements were not only relevant but necessary to decide the controversy. Section 540, Cr.P.C. Clearly enabled the trial Court to adopt such a course."
8. Punjab Law Department Manual, 1934, in its para 5-A (ii) under the heading scrutiny of reports and charge sheets under section 173, Cr.P.C., provides, that charge sheets and reports under section 173, Cr.P.C. Received from the police shall be thoroughly scrutinized by an officer of the District Prosecutor Agency who shall be responsible to see that incomplete or complete charge sheets and other necessary papers are attached and that the witnesses according to list entered in the charge sheet and that no omissions or defects in the investigation remained uncertified or unexplained. Charge sheet after observing this procedure is required to be put in Court. Incharge of the prosecution is required to present in the best possible manner material evidence in Court at trial.
9. The medico-legal certificate was annexed with the challan. Its authenticity was challenged by the accused before a medical board. The Medical Board confirmed report of the Radiologist, and, that of first examining Medical Officer. Both these documents sought to be produced were in the knowledge of accused, and, he was not to be taken by surprise by production of these documents.
No prejudice was to be caused to him in production of the above evidence. The prosecution through its District Attorney can be blamed for negligence in not scrutinizing the report under section 173, Cr.P.C. Though medico-legal certificate was part of the report yet the name of Medical Officer was not mentioned in the calendar of witnesses. Had he not forwarded the report under section 173, with a blind eye, and have seen the list of the witnesses by comparing it with the documents, the needful would have been done at the earliest possible opportunity. Should a complainant suffer for the fault of the prosecution, who was negligent in discharging duties and functions? Answer should be, readily, in negative.
10. Survey of the law undertaken by us, in no uncertain terms, declares that powers of a Court under section 540, Cr.P.C. Are widest in its amplitude; it is obligatory upon the Court to summon evidence of a material witness whose evidence is essential for just decision; the Court exercising power under section 540, Cr.P.C. Has to guard itself from the exploitation and shall keep the guiding principle, what the ends of justice demands; the avoidance to fill gaps is in negation of justice, when a Court arrives at the conclusion that evidence is essential for a just decision, and, that the delay in moving an application is not relevant as the Court itself is empowered, even, without application from any of the parties to summon the witness deemed essential for just decision by applying its judicial mind.
11. Applying the above test, in the case in hand, we find that the medico-legal certificate was issued by a Medical Officer. Radiologist opined fracture on the person of injured. Its authenticity was questioned and a medical board was constituted at the instance of the accused. The Medical Board had rendered its opinion. Both the documents were authored by Medical Officers in discharge of their functions genuineness of which cannot be doubted. The accused will, however, have an ample opportunity to discredit the evidence on the touchstone of cross-examination.
12. For what has been discussed above, this petition is converted into appeal and allowed.
Judgment of the learned High Court is set aside and that of the courts below are restored.