' MRS. SYEDA TAHIRA SAFDAR, J.--Through instant petition order dated 15th June, 2012 of Additional Sessions Judge-V, Quetta, was questioned on grounds that the two persons namely Colonel Faisal, and Major Tariq Mahmood, who were intended to be produced as witnesses in additional evidence, were eye-witnesses of the occasion. Further, both of them participated in the process of effecting recoveries of the alleged arms, and ammunition from possession of the accused persons. Despite the fact that their names were not listed in challan, but their (witnesses) presence at the place of incident was evident from the papers on record. It was contended that keeping in view the facts, and material on record both the persons may have been allowed to appear as witnesses. But, the trial Court failed to consider this material aspect of the case and arrived to a contrary decision.
Further, the trial court was wrong while holding that the application under section 540, Criminal Procedure Code (Cr.P.-C.) was moved with delay, therefore, out of consideration. It was further contended that section 265-C, Cr.P.C. Had no nexus with the provisions of section 540, Cr.P.C. As both the sections were to be dealt independently, but a contrary view was taken, which was an error on part of the court below. It was prayed that the impugned order be set aside, and the prosecution be allowed to produce the additional evidence.
2. The learned counsel for the parties argued the matter at length. It was argument of the learned Prosecutor-General (PG) that under section 540, Cr.P.C. The court has ample power to call any person as witness during course of trial. But as far as sections 265-C and 265-F, Cr.P.C. Were concerned, both were not attracted in case in hand. It was further his argument that both the persons, who were intended to be produced, were eye-witnesses of the occasion, whereby the arms, and ammunition were recovered from possession of the accused persons. Therefore, in view of the stated facts their evidence was of much importance, and for just decision of the case. The learned PG placed reliance on:-- Mst. Munawar Sultana v. Muhammad Shafique alias Mithu 2008 PCr.LJ 1749 (No such reference found) 2006 YLR 3107 (No such reference found) 1998 SCMR 325
3. In reply the learned counsel for the respondents strongly controverted the arguments of the learned PG. It was his argument that the fact was very much evident from the contents of the F.I.R., that no inventory memo was prepared about effecting of recovery at the relevant time, nor the alleged recovered articles were taken into custody being case property by the Police. It was further his argument that the search, of any, was conducted, failed to fulfil the legal requirement as provided under section 103(2), Cr.P.C. The learned counsel also referred to section 173(5), Cr.P.C., with assertion that there was non-compliance of the same, which was fatal for the case of the prosecution. The learned counsel further argued that both these persons were not mentioned as witnesses even in the supplementary Police Report/Supplementary Challan, therefore, they cannot be allowed to be produced as witnesses, being an afterthought and to fill up the lacuna. While making reference to sections 265-C and 265-F, Cr.P.C. It was argument of the learned counsel that if at this stage the prosecution be allowed to produce these witnesses it would amount to depriving the respondents from their right of defence. In addition the record failed to disclose preparation of separate seizure memo to establish that the recovered articles were taken into custody by the police. The learned counsel placed reliance on:-- (No such reference found) 2006 YLR 3107 Dildar v. The State 2001 PLD SC 384 Painda Gul v. State SCMR 1987 page 886
4. In reply thereto it. Was contention of the learned PG that inventory made in respect of the recovered articles was already on record, but failed to get attention of the trial Court. Further, the provisions of section 103, Cr.P.C. Were not applicable in cases where recoveries were effected from running vehicles. Further, trial Court declined the production of recovered articles without considering the relevant facts and also overlooked the relevant law. The learned Prosecutor- General concluded that the persons intended to be produced as witnesses, were surely not cited in the challan, that's why the application was moved for their production as additional evidence.
5. The facts as appeared from the papers annexed with the instant petition that F.I.R. No,139 of 2010.
Police Station Airport, District Quetta, dated 22nd December, 2010, was registered in respect of an occurrence whereby recovery of illegal arms, and ammunition in huge quantity were alleged against the respondents, who were nominated as the accused persons, and were taken into custody at the site. It further appeared that, the recovered arms, and ammunition were taken into custody by Frontier Corps at the site, and a list of the recovered articles, and vehicles was prepared at the relevant time. It is further apparent from the record that in pursuance of this F.I.R. Sixteen (16) separate Police Reports/Challans were submitted against all the accused persons, which are pending before the trial Court. On receiving of the challans, and framing of the charge, the trial commenced, and prosecution witnesses were called, and statements were recorded. But during course an application under the provisions of section 540, Cr.P.C. Was moved by the prosecution with a request that the prosecution witness namely Fareedullah DSP had since been died, therefore, the other eye-witnesses of the occurrence namely Colonel Faisal, and Major Tariq Mahmood, employees of Frontier Corps, were allowed to 'be produced. This application was, strongly contested by the respondents. The trial Court through order dated 15th June, 2012 declined the request. The trial Court A write an elaborate order with reference to the verdict of the superior courts, thereby arrived to the conclusion that the summoning of additional witnesses not seemed essential as same kind of evidence already available on record. Further, held that if statements were so necessary why the prosecution failed to associate them as witnesses, nor justification was shown for the purpose.' Feeling aggrieved instant petition had been filed.
6. Section 540, Cr.P.C. Empowered a court to call for any person as witness, who appears to he essential to just decision of the case. Re- IA production of the section will be helpful:-- "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."
7. It is evident from the plain reading of the section that it empowered a court to summon any person as a witness, or may examine any person in attendance. Further, provide power of recalling, and reexamining any person already examined. Both these powers are available to the court during pendency of trial; inquiry or other proceedings. Therefore, a discretion vests with the court, which is to, be exercised judiciously. But it is to be observed that the last portion of this section provides an obligation to the court, which is mandatory in nature, as it is with a "Shall". Therefore, a court has to summon and examine, re-call and re-examine any person. But subject to the fact that evidence of such person appears to be essential to the just decision of the case. Now it is the party, who wants to produce a person, not cited in calendar of witnesses annexed with the Police Report/challan, has.To show the nature of the evidence, and the purpose behind it, whereby the court would exercise its discretion either accepting or refusing the request, but within the ambit as provided in the section.
8. In present case the contents of F.I.R. And the attached documents showed presence of both Police, and Frontier Corps personnel at the site. The names of several persons noted down in contents of the F.I.R., while the Police Reports/Citations, thereafter submitted, also described names of several persons as witnesses. The perusal reveals that only one Fareedullah DSP was cited as eye-witness, while the remaining were described as witnesses of recovery, and preparation of seizure memos. There was no explanation that why the remaining persons describing as eye- witnesses were not included in the calendar of witnesses. The carelessness, and negligence on the part of the prosecution is very much evident, which is highly objectionable.
9. Though trial Court has rightly held that no unfettered powers are available to the trial Court for calling a person, and examining him as a witness. But a discretion lies with the court, which is to be exercised keeping in view the facts, and circumstances of each case, within the ambit of section 540, Cr.P.C. Further, it will not be out of place to note down that subsection (5) of section 173, Cr.P.C.
As referred by the learned counsel for the respondents is not attracted in present case. Because, the subsection exempted "Public servants" from such appearance as required therein. The intended witnesses in fact belonged to Frontier Corps, thus covered by term "public servant". As far as violation of provisions of section 265-C and 265-F, Cr.P.C., as agitated by the learned counsel for the respondents, is concerned both the sections pertain to supply of statements, and documents to the- accused person, and production of evidence of prosecution. It was contention of the learned counsel for the respondents that if at this stage additional evidence would be allowed it would effect their right of defence. Though the purpose of supply of statements, and documents to an accused person, in. Compliance of section 265-C, Cr.P.C. Is to get acquainted him with the nature of the case against him, and enable him to establish his defence. While section 265-F, Cr.P.C. Described the procedure required to be adopted by the court for calling for evidence of prosecution and also of defence. But presence of these sections in no way place any embargo on power of the court available to it under provisions of section 540, Cr.P.C. Therefore, the request for production of additional evidence is to be dealt under section 540, Cr.P.C., and while dealing the same, section 265-C, or section 265-F, Cr.P.C. Will be of no effect, neither the right of defence would be effected. The argument of the learned counsel to said extent does not have the force.
10. In present case the prosecution wanted to produce additional evidence in shape of two witnesses namely Colonel Faisal and Major Tariq Mahmood, with contention that the -only eye- witness cited in list had since been died. This fact of death is not controverted from the other side.
Further, it is observed that the name of one of the intended witnesses namely Major or Tariq Mahmood appeared from the contents of the F.I.R. The name of other person Colonel Faisal nowhere appeared. But apart from these facts this fact is very much apparent from the papers available on record that both the forces i.e, Police and Frontier Corps acted jointly, and personnel belonging to both the forces were present at the site, and witnessed the occasion. As the solitary eyewitness had been died, therefore, it would be just and appropriate to allow the prosecution to produce remaining eye-witnesses. Though there was negligence on part of the prosecution, but for the purpose to arrive at just decision of the case some evidence must come on record, it will C be helpful for both the parties. But as far as evidentiary value is concerned, no findings are required to be given at this stage. Because it is the trial Court, who has to assess the evidentiary value of the statements recorded, and the material produced during course of trial, while making decision on completion of the trial.
11. In view of the above discussion the impugned order dated 15th June, 2012 is hereby set aside. The prosecution is allowed to produced Colonel Faisal, and Major Tariq Mahmood as witnesses. The prosecution is directed to produce both the persons before the trial Court without any delay.
' The petition stand disposed of in above terms.