' TASSADUQ HUSSAIN JILLANI, J.-Petitioners are facing trial in the case registered vide FIR No, 139 of 2010 under sections 353, 186, 109, PPC read with section 7 of the Anti-Terrorism Act and sections 3, 13(d), 16/20 of Arms Ordinance, 1965 at P.S, Airport, Quetta, wherein it was alleged that on a source report to the effect that certain persons armed with illicit fire-arms and ammunition were about to enter Quetta city to cause terror and fear, the Station House Officer alongwith other police officers/officials reached Balaili Check Post where one Col. Faisal of Frontier Constabulary alongwith other officials of Constabulary were already present. At about 5.00 a.m. They found that a convoy of vehicles was coming from National Highway. The vehicle leading the convoy was stopped', the SHO and Col, Faisal introduced themselves to the Driver and when attempt was made to search the said vehicle, the Driver was rude and wanted to forcibly take the vehicle towards Quetta City. On further interrogation, he and his companions driving the remaining vehicles were asked to disarm themselves but there was some resistance. Their resistance led to a little scuffle on account of which certain officials of Police and Frontier Constabulary received injuries but ultimately the person at the driving seat was overpowered who disclosed his name as Shah Zain Bugti and informed that he was leading the convoy and that he was their commander. All the vehicles were impounded and the persons mentioned therein were taken into custody alongwith the arms and ammunition, a detail of which is given in the FIR.
2. After due investigation, several challans were submitted in Court whereafter the trial commenced. Some of the prosecution witnesses have been examined. The prosecution filed an application under section 540, Cr.P.C, for summoning Col. Faisal and Major Tariq as prosecution witnesses on the'ground that they were the eye-witnesses of the occurrence; that Muhammad Fareed, DSP who was an eye-witness and had investigated the case had died and could not be examined and since the afore-mentioned officers were also eye-witnesses of the occurrence, recording of their statements during trial was essential for a just decision of the case. The application was dismissed by the Trial Court on inter alia, on the ground that the Court did not have unfettered or unlimited powers to summon a witness; that it cannot assume the role of an investigator or to hold "a roving enquiry and dish out the evidence for either the prosecution or defence which results in filling up lacunas of their case and is advantageous to the other side." The learned High Court, however,- reversed the afore-mentioned order vide the impugned judgment dated 6.9.2012 by inter alia holding that one of the afore-mentioned witnesses is mentioned in the FIR; that the material placed before the Court indicated that both police and FC acted jointly in hauling up of arms and ammunition subject-matter of the trial and as the eye-witness had died, it was just and appropriate to allow the prosecution to produce the remaining witnesses.
3. Through this petition, leave is sought against the impugned judgment of the High Court mentioned above.
4. Learned ASC for the petitioners submits that the learned High Court could not have allowed the prosecution to lead additional evidence which already had examined almost the entire evidence; that the permission granted ^mounts to permitting the prosecution to fill up the lacunas; that on account of the observations made by learned High Court in the impugned judgment, the petitioners' right to appeal in the event of conviction has seriously been prejudiced; that the same is violative of Article 10A of the Constitution of the Islamic Republic of Pakistan which guarantees right to fair trial that the learned High Court in passing the impugned judgment has not given reasons germane to the letter and spirit of section 540, Cr.P.C. Towards the end of his submissions, however, learned counsel for the petitioners submitted in response to a Court query, that he will be satisfied if this petition is partly allowed and the impugned judgment is suitably modified and the observations made which are likely to be prejudicial to the petitioners' defence are expunged.
5. Learned Additional Prosecutor General defended the impugned judgment by submitting that the Court has power under section 540, Cr.P.C, to summon any witness, if his evidence is essential for a just decision of the case and a bare perusal of FIR and the evidence already examined before the Trial Court would indicate that their examination was indeed essential for a just decision of the case. Responding to the prayer made by petitioners' learned counsel towards the end of his submissions, learned Law Officer, in all fairness, submitted that he has no objection if the impugned judgment is partly modified.
6. We have heard learned counsel for the petitioners and learned Law Officer at some length and have also gone through the impugned judgment as also the order of the learned Trial Court.
7. To appreciate the issues raised, it would be pertinent to keep in mind the scope of section 540, Cr.P.C, which vests powers in the Court to examine anyone as a witness which according to it is essential for a just decision of the case. The said provision reads as follows:-- "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 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 re-examine 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. A close reading of afore-mentioned provision indicates that it gives rather wide powers to -the Court to examine any witness as a Court witness at any stage of the case, It enables the Court rather in certain situations imposes a duty on it to summon witnesses who could not otherwise be brought before the Court. The section consists of two parts: one giving discretionary power to the Court and the other imposing an obligation on it. Ln Jamatraj Kewalfi Govani v. State of Maharashtra (AIR 1968 SC 178), the Court was seized of a similar issue when it held as follows:- "(10) Section 540 is intended to be wide as the repealed use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word .'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the Court may act in one of the three ways: (a) summon any person as a witness, (b) examine any person present in Court although not summoned, and (c) recall or re: examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if4he just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution.
' There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly "
9. The Court cannot summarily dismiss an application for additional evidence in terms of section 540, Cr.P.C, by merely holding that either the said witness was not mentioned in the challan or that it was belated application or that it may fill up lacunas in prosecution case, unless the totality of material placed before it is considered to find out whether examination of the said witness is essential for a just decision of the case. While dilating on the purpose of an analogous provision in Indian Criminal Procedure Code (Section 31}), the Supreme Court of India in Iddar & Ors. v. Aabida & Anr. (AIR 2007 SC 3029) observed as follows..
"11. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in brining the valuable evidence on record or leaving ambiguity in the statement? Of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings; enquiries and trial under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be1 exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."
10. The Court has also to keep in mind that in trying a case it has to find out the truth to render a judgment in accord with canons of justice. If it finds that the investigation is defective, it cannot just sit idle as a timorous soul and has to exercise all the enabling provisions under the law including section 540, Cr.P.C, to discern the truth. For the purpose of this provision, the Court even without any formal application from' prosecution or accused, can summon any person as witness or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined. In Ansar Mehmood v. Abdul Khaliq (2011 SCM R 713), the judgment of the High Court was reversed and that of the Trial Court restored which had allowed examination of additional evidence in terms of section 540, Cr.P.C, While doing so, the Court commented on the ambit of this provision in terms as follows:-- "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 abd 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."
11. In Shahbaz Masih v. The State (2007 SCM R 1631), a similar view was reiterated by the Court and it was held as under "7_____ Court enjoys full powers to summon and examine any person as a witness at any stage of trial; rather it is imperative for the Court within terms of section 540. Cr.P.C, to summon and examine a person when evidence of such person appears to the Court essential to do the just decision of the case. Also, the Court can examine any person in attendance though not called as a witness. The underlying object, always, is to reach truth......" l2. A perusal of the material placed before the Court during trial including the FIR would indicate that the case of the prosecution was that a joint team (comprising Of officials of Frontier Constabulary and police) was formed which intercepted the convoy from which arms and ammunition mentioned in the FIR were allegedly recovered. That being so, the examination of officers who according to prosecution, were part of the said joint team, was essential for a just decision of the case. More so when the DSP who was an eye-witness and partly investigated the case had died during trial. In the afore-referred circumstances, the impugned judgment insofar as it allowed the prosecution to produce additional evidence is in accord with the mandate of section 540, Cr.P.C, and the law declared to which reference has been made above. To the said extent, therefore, it is unexceptionable. However, the observation made in the impugned judgment with regard to quality of investigation was uncalled for and was likely to prejudice the case of either side and learned Law Officer has not joined issue in this regard. Consequently, this petition is converted into an appeal and allowed and while upholding the impugned judgment insofar as it allowed the prosecution to adduce additional evidence, it is directed that the Trial Court may proceed with the trial influenced by any observation made in the impugned judgment which may have the effect of prejudicing either parties' case on merit. Needless to observe it would be open for the petitioners to raise all the pleas during the course of cross:examination and arguments including the admissibility of some piece of evidence.
Leave Petition Converted into Appeal and .