1. MUHAMMAD TASNIM, J. --- Through this Criminal Revision Application under sections 435 and 439, Cr.P.C. the applicant has challenged the validity of order dated 4-8-2010 passed by learned Additional Sessions Judge Naushero Feroze in Sessions Case No,2 of 2000 whereby application under section 540, Cr.P.C. filed by applicant was dismissed.
2. Through the application under section 540, Cr.P.C. the applicant prayed as under:-- "It is prayed on behalf of accused that the honourable Court may be pleased to call and examine
(1) Jamshed Ali Aiwan former Judicial Magistrate Moro now Senior Civil Jude in District Larkana (2)
3. Muhammad Ishaque Arain (Rtd.) Headmaster Govt. Boys High School Moro (3) Muhammad Ashraf Gulabani the teacher Govt. Boys High School Moro (4) Mr. Mumtaz Ali Soho the teacher Govt. Boys High School Moro, as court witnesses in the above case, as their evidence is essential to the just decision of the case, on consideration of following grounds . "
4. It was argued by the learned counsel for the applicant in support of the present revision application that after close of the side of the prosecution accused side promptly made an application under section 540, Cr.P.C. much prior to recording of statement of accused under section 342 Cr.P.C. She has further argued that right to bring evidence to substantiate the plea of alibi has been denied to the accused and the impugned order has prejudice the case of the present applicant. She has further submitted that there was no delay in filing of application under section 540, Cr.P.C. She has argued that the persons named in application under section 540, Cr.P.C. which were sought to be summoned by the Court were shown as P.Ws. in the challan but the prosecution side deliberately did not examine those witnesses. Learned counsel for applicant submitted that those witnesses would have supported the accused. When the prosecution gave up the aforesaid witnesses the application under section 540, Cr .P.0 . was promptly made to the Court. In support of her contention she has based her reliance on the case of State v. Muhammad Yaqoob 2001 SCM R 308. In the end she has submitted that order impugned be set aside and the trial Court be directed to call the witnesses named in the application under section 540, Cr.P.C. and further proceedings be conducted by the trial Court in accordance with law.
5. On the other hand learned A.P.-G. has argued that the applicant through application under section 540, Cr.P.C: wants to fill up the lacuna in the evidence. He further says that accused wants to demolish the case of the prosecution by calling witnesses named in the application under section 540, Cr.P.C. The. learned A.P.-G. has further submitted that when witnesses were given up by the prosecution no objection whatsoever was raised by the applicant's side though his counsel was very much in attendance in Court. He further argued that prompt action was not taken by the applicant's side and at this belated stage applicant cannot take advantage of his own wrong. He has also invited my attention to the Provision of Article 188 of Qanun-e-Shahadat Order 1984. He has further argued that accused did not mentioned in the statement under section 342, Cr.P.C. that he wish to examine any defence witness hence the request of the applicant was rightly denied by the learned trial Court through the impugned order. He further says that seven month after closing of side of the prosecution, the application under section 540, Cr.P.C. was moved as such same was liable to be dismissed on that ground alone by the trial Court. He says that matter is old one and if present application is allowed it will delay the trial. In support of his contention learned A.P.G. has relied upon the case of Haji Abdullah v. The State 1995 SCM R 821, Amir Bakhsh v. Additional Sessions Judge, Multan 2007 PCr. LJ 642, Zahoor Ahmed v. The State 2007 SCM R 1519, Begum Salma Ahmed v. The State 2007 SCM R 1605 and Muhammad Akratn v. The State 1994 SCM R 550.
6. I have heard the learned counsel for the parties and have gone through the record.
7. It is admitted position on record that the persons named in application under section 540, Cr.P.C. were originally appearing as witness in the challan but subsequently the prosecution decided not to examine the said witnesses. No doubt no objection was raised by the applicant's side when prosecution dropped such witnesses, however, immediately after closing the side by the prosecution application under section 540, Cr.P.C. was made without any delay. As per contention of learned A.P.-G. that accused has not stated in his statement under section 342, Cr.P.C. that he wants to lead defence witness, the applicant side says since application under section 540, Cr.P.C. was pending hence applicant did not state in his statement under section 340, Cr.P.C. for leading defence evidence.
8. Provision of section 540, Cr.P.C. provides that Court may at any stage of an enquiry trial or other proceedings summon any person as a witness, or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it essential to the just decision of the case. A bare reading of the above provision shows, that it empowers the Court to call any witness at any stage of the proceedings to do complete justice between the parties.
9. The Provision of section 540 came up for consideration before the honourable Supreme Court of Pakistan in the case of Muhammad Yaqoob 2001 SCM R 308 (at P.320) wherein the honourable Supreme Court while interpreting the provision of section 540, Cr.P.C. has held as under:-- This section has two parts; in the first one the discretion lies with the Court to examine or not to examine any person as a witness but according to second part of the Section the Court is bound to examine any person as a witness if his evidence appears to he essential for just decision of the case irrespective of the fact that any party had requested for it or not. This legal proposition has been exhaustively explained/clarified in the case of "Muhammad Azam v. Muhammad lqbal and others" reported in PLD 1984 SC 95. Therefore, reference to various portion of the judgments would be helpful. It had been observed at page 118 of the judgment; " The duty nevertheless lay squarely on the trial. Court to summon the entire available evidence on this controversy and record/admit the same by virtue of power under section 540, Cr.P.C. It reads as follows: "Power to summon material witness or examine person present. 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."
10. "This provision is divided into two parts; one where it is only discretionary for the Court to summon a Court witness suo motu or on application, and the second part where it is mandatory for the Court to do so. The main condition to be satisfied with regard to the second part is that the evidence to be summoned under this part should appear to the Court to be essential to the just decision of the case. As has already been observed the evidence in question relating to Nikah was undoubtedly essential for the just decision of the case. In the circumstances of this case the failure of the learned trial Judge to act under the said part of section 40 Cr.P.C. has not only deprived the appellate. Courts of essential material for the just decision of the appeal, but has also occasioned miscarriage of justice."
11. The observation at page 120 of the said judgment reads: "The failure of the parties to produce sufficient evidence after introducing this ,subject should not have deterred the trial Court in performing the duty under the second part of section 540, Cr.P.C.
12. The trial Court has, as discussed about, failed to do so and therefore, on this account also the case merits remand for fresh trial: The legal position was further explained at page 121 which is reproduced:-- "It needs to be observed that for purpose of acting under section 540, Cr.P.C. (whether the first or second part), it is permissible to look into the material not formally admitted in evidence, whether it is available in the records of the judicial file or in the police file or else where. The perusal of both these records would show that if evidence, in connection with the items already noticed, would have been properly entertained the reasoning and decision of the learned two. Courts might have been different."
13. The often repeated objection that such an exercise would amount to filling up then lacuna has been clarified in this way in the judgment.
14. "Sometimes apprehension is expressed that any action by the trial Court under section 540, Criminal Procedure Code would amount to filling the gaps and omissions in the version or evidence one or the other party. It may straightway be observed that in so far as the second part of section 540 goes, it does not admit any such qualification. Instead, even if the action thereunder is of the type mentioned the Court shall act in accordance with the dictates of the law. In fact the Court has no discretion in this behalf It is obligatory on it to admit evidence thereunder if it is essential for the just decision of the case. It was held in Syed Ali Nawaz Grardezi v. Lt. Col. Muhammad Yusuf (1) that even if a witness who is ultimately to be produced by the accused in his defence is examined by the trial Court as a Court witness at an earlier stage then notwithstanding the fact that the defence would have an extra advantage of putting leading questions to the witness when standing in the witness-box as a Court witness, it would not effect the power of the Court (under section 540, Cr.P.C.) to summon and examine the witness if, of course, as was observed in that case, it was in the interest of justice and this presumably essential for the just decision of the case. Again in the State v. Moulvi Muhammad Jamil and others (2) when examining the effect of change in the criminal procedure, regarding right to further cross-examination, during the transitional period, this Court held that even through it would be for the benefit of the defense, the trial Court could avoid any prejudice to the defense by acting under section 540, Cr .P .C. After holding so a very weighty observation was made which needs to be reproduced: This section empowers a Court at any stage of inquiry, trial or any other proceeding under the Code, to summon any person as a witness, or recall and re-examine any person already examined, and it is obligatory for the Court to summon and examine or recall and re-examine any such person; if his evidence appears to it essential for the just decision of the case".
15. "In yet another case Rasheed Ahmad v. The State (1), this Court made it more clear that "a criminal Court is fully within its rights in receiving fresh evidence even after both the sides have closed their evidence and the case, is adjourned for judgment far till then the case is still pending. The only question therefore, is as to whether in the interest of fairness further opportunity should have been given to the accused"; and it was held that "there is not bar to the taking of additional evidence in the interest of justice, at any stage of inquiry or trial as provided by the provisions of section 540, Cr.P.C. In these cases if the question regarding so-called filling of the gaps would have been raised more squarely, the answer in view of what has been noticed about would have been the same as already rendered namely that if it is essential for the just decision of the case; then the same is the command of the law under the second part of section 540, Cr.P.C. It would not be possible to canvass that when the action under the said provision amounted to so-called filling of gap, the Court would for this reason, avoid its duty to admit the additional evidence."
16. The honourable Supreme Court in the same report finally concluded as under:-- "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 persons 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 or 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 section 540, C.P.C. it is obligatory on the Court to examine such a witness ignoring technical/formal objection in this respect as to justice and to avoid miscarriage of justice."
17. It will be noticed from the circumstances of the case that applicant wants to substantiate the plea of alibi by calling the witnesses named in the application. Applicant was facing trial with a hope that witnesses shown in the challan will be examined as P.Ws. and sucil witnesses shall support his plea of alibi about his presence in school as teacher at the time of incident, when such witnesses were dropped by the prosecution it was felt necessary by the applicant to call such witness by making application under section 540, Cr.P.C. It is settled law that prosecution has to stand on its own case and has to prove the charges without any shadow of doubt. The courts are created to do complete justice between the parties after providing them full opportunity to defend themselves in the proceedings. If the order impugned is maintained, in my view it will seriously prejudice the case of the applicant, as he has taken a specific plea of alibi which he can only- substantiate if the witness mentioned in the application under section 540, Cr.P.C. are examined. It is the case of applicant that neither the former Judicial Magistrate nor the former Head Master and Teachers of the School will come fotward to given evidence at the request of the applicant unless process is issued from the competent Court. To seek the assistance of the Cpurt for calling the aforesaid witnesses the application under section 540, Cr.P.C. was made by the applicant side.
18. Now dealing with the point raised by the learned A.P.-G. that there is delay in filing of application under section 540, Cr.P.C. is not supported from the record as the persons named in the application under section 540, Cr.P.C. were originally appearing in the challan as P.Ws. Such witnesses were dropped and prosecution side of evidence was closed on 21-2-2007. Thereafter on 29-1'0-2007 application under section 540, Cr.P.C. was moved by the applicant which remained pending and was dismissed by the impugned order dated 4-8-2010.
19. With regard to the contention of the learned A.P.-G. that no objection whatsoever was raised by the applicant side while prosecution was giving up the witnesses named in the application. Under law prosecution has to prove its case and free to examine as many witnesses as prosecution may deem necessary. Prosecution is free to drop any witness but objection from the applicant side was of no consequences.
20. With regard to filling up lacuna in the evidence it is the case of the applicant that definite plea of alibi has been taken which can be proved by examining the witnesses named in the application under section. 540, Cr.P.C. and if such witnesses are examined no prejudice shall be caused to the prosecution.
21. In the case of Haji Muhammad Abdullah supra cited by learned A.P.-G. a -request was made to call the police officer as court witness but trial court after having gone through the police diaries had found no justification for summoning of the two police officer as court witness such order was passed in the circumstances of said case. The. judgment cited by the learned A.P.-G. is not applicable to the facts and circumstances of the case.
22. In the case of Amir Bakhsh supra cited by learned A.P.-G. request for re-summoning of witnesses was made, it was held in that case that neither the defence nor the prosecution can be allowed to fill the lacuna by re-summoning of witnesses under section 540, Cr.P.C. If such practice is allowed, no trial would ever come to an end and it will amount to opening of Pandora box. In the present case through the application under section 540, Cr.P.C. the applicant has prayed for summoning the witnesses who have not been examined by the prosecution but no request for re-summoning of the witness has been made, in this case. This judgment is not applicable to the present case.
23. In the case of Zahoor Ahmed supra relied upon by learned A.P.-G. it will be seen that in the said ease the Honourable Supreme Court of Pakistan came to the conclusion that it is not essential for prosecution to produce each of the cited witness at the trial. There is no cavil with proposition as laid down by the honourable apex Court in the reported judgment but in the present case witnesses shown in the challan were dropped by the prosecution and the present applicant has prayed for summoning of those witnesses as such witnesses are necessary for just decision of the plea of alibi raised by the applicant. It will be just and fair to give an opportunity to the applicant to call such witness in Court who may bring material on record which shall enable the Court to do complete justice between the parties.
24. The case of Muhammad Akram supra is entirely distinguishable on facts and is of no help to the prosecution. .
25. I respectfully follow the rule laid down in the case of Muhammad Yaqoob Supra allow this Criminal Revision and set aside the order impugned and direct the learned trial court to call the witnesses named in the application and examine them strictly in accordance with law after affording opportunities to the parties.
26. Since it is an old matter, no adjournment on the flimsy ground will be granted by the learned trial court. I further direct the learned trial court to record the evidence of all the four witnesses named in the application within a period of 45 days and pass judgment strictly in accordance with law.
27. Order passed on 6-9-2010 in the case restraining the Trial Court from passing judgment in the matter is re-called.