1. ' MUHAMMAD MUSHTAQ CHAUDHARY, J.---This revision petition has been directed against an order of Additional District Court of Criminal Jurisdiction Rawalakot dated 8-9-2012, whereby an application filed by complainant under section 540, Cr.P.C. For summoning of additional witnesses was accepted.
2. ' The facts precisely stated are that a case under sections 302/34, 109/114, A.P.C. And 13/20/65; Arms Ordinance was registered against the accused petitioners at Police Station Rawalakot. The challan was submitted before Additional District Court of Criminal Jurisdiction Rawalakot and the evidence of prosecution witnesses was being recorded, meanwhile, on 10-7-2012 complainant moved an application under section 540, Cr.P.C. For summoning of seven (7) persons, as additional witnesses, who were also travelling in Hi-Ace wherein deceased was murdered, the place of occurrence. The objections on the aforesaid application were sought from accused-petitioners which were filed, on 23-7-2012. The trial Court after hearing arguments accepted the application filed under section 540, Cr.P.C. For summoning of 7 more additional witnesses vide its order dated 8-9-2012; hence, this revision petition.
3. ' Barrister Adnan Nawaz, the learned Counsel appearing on behalf of the accused-petitioners submitted that the evidence of prosecution witnesses except Investigating Officer has been recorded. He further argued that no doubt an application under section 540, Cr.P.C. Can be moved at any stage of the proceedings but the complainant kept mum for such a longtime and during the cross-examination when the defence disclosed that some other persons were also present in the Hi-Ace but they were not cited as witnesses, then the complainant filed an application under section 540, Cr.P.C. Before trial Court to fill up lacunas of the prosecution; therefore, the trial Court' failed to consider this aspect of the case and passed the impugned order contrary to law. He submitted that while accepting this revision petition, the impugned order may be dismissed.
4. ' Conversely, Manzoor Hussain Raja, the learned Counsel for the complainant-respondent argued that an application under section 540, Cr.P.C. Can be tiled at any stage of the proceedings to summon or recall a witness for just decision of the case; therefore, the trial Court rightly accepted the application. He prayed for dismissal of the revision petition and defended the impugned order on all counts. The learned Counsel placed reliance on the following authorities in support of his contention:-- ' The case titled Muhammad Boota v. The State [1997 PCr.LJ (Lahore) 628] relates to a criminal complaint filed against a Patwari, accused, for preparing a forged mutation; wherein the trial was at initial stage and the learned Judge held that the comparison of the Patwari's signatures was essential in this case; therefore, the trial Court was directed to send the specimen signatures to Handwriting Expert and the accused was given a fair chance to defend his case, but in the case in hand situation is different because the complainant wants to get recorded additional evidence of 7 more witnesses.
5. ' In the case reported as Ali Nawaz and 8 others [1997 MLD (Lahore) 2221], the complainant claimed that the abductee married to him while one of the accused also claimed that she was married to him. In such situation, the Court held that summoning of Nikahkhawan etc. By the trial Court for their evidence was not illegal or captious in any manner. No doubt in the above case, the evidence of Nikahkhawan was essential to know the validity of Nikah but in the present Case the situation is totally different.
6. ' In the case titled Mazhar Hussain v. The State [2002 PCr.LJ (Lahore) 614] the learned Judge opined that the trial Court had rightly exercised its jurisdiction to summon the medical Officer as a Court- witness who had already made his statement in examination-in-chief.
7. ' In the case reported as Amir Baksh v. Additional Sessions Judge Multan [2007 PCr.LJ (Lahore) 642], the learned Judge observed that the accused had already been given full and fair opportunity to cross-examine the said prosecution witnesses; therefore, re-summoning of them for further cross- examination was denied and it was further held that neither the defence nor the prosecution could be allowed to fill the lacuna by re-summoning of witnesses under section 540, Cr.P.C.
8. ' I have heard the learned Advocates for the parties and also given my utmost consideration to the facts and relevant law.
9. Section 540, Cr.P.C. Consists of two parts; the first part gives power to the Court to summon any person as a witness or examine any person in attendance, though not summoned as a witness whereas the second part of the section is mandatory to meet the ends of justice. Section 540, Cr.P.C. Is reproduced as under:-- "540. 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 re-call and re- examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case."
10. ' A perusal of above section reveals that it gives ample powers to a Court to call or examine any important witness as Court witness at any stage and at any time during the trial. However, these discretionary powers have to be exercised with due care and caution and in a judicious manner in the cases where trial Court feels it necessary to meet the ends of justice, but the Court cannot exercise these powers to advance the cause of prosecution or that of the defence. The object of the section is to advance the interest of justice and not to give benefit to any of the parties at the trial to fill up lacunas.
11. ' Coming to the instant case, the prosecution cited 22 witnesses, out of them, the evidence of 21 witnesses has been recorded and only evidence of Investigation Officer is yet to be recorded, meanwhile, complainant moved an application under section 540, Cr.P.C. Before trial Court, through which he wants to get recorded evidence of more seven (7) persons who were present at the time of occurrence in the Hi-Ace, the alleged place of occurrence.
12. ' It reveals from the study of record that the case was challaned before the trial Court on 29-1-2011 and evidence of 21, out of 22, prosecution witnesses including six eye-witnesses has been recorded and now after more than 20 months, which is a pretty longtime, the prosecution moved an application under section 540, Cr.P.C. Before trial Court without any justification. Before this, the prosecution never considered the witnesses mentioned in the application as important witnesses nor these witnesses themselves appeared before police during investigation or Court for recording of their evidence. The attitude of the complainant for citing them as witnesses also appears to be lukewarm because a long, silence was adapted by him. The complainant remained silent for about more than 20 months after commencement of the trial and such delay cannot be ignored under the situation. My aforesaid view finds support from a case reported as Mst. Safdar Jan v. The State and another (1997 PCr.LJ 1553) wherein it was observed by learned Judge at page 1556 in caption 'B' as under:- "The complainant side also remained silent for about 4 months after commencement of the trial, which showed that no sanguine effort was made to get Abdul Aziz examined as a witness. The question of delay, therefore, cannot be ignored under the situation. Even otherwise it has not been shown as to how the examination of Abdul Aziz was essential or without his examination the ends of justice shall not be satisfied. The mere fact that there is some flaw in the prosecution case, would not justify summoning of a witness under section 540, Cr. P. C. The impugned order does not suffer from any legal infirmity nor it is arbitrary or capricious. As such there is no ground for interference with the impugned order on the revisional jurisdiction of this Court. This petition is accordingly dismissed,.
13. I am also aware of the fact that the Court may call and examine any witness or witnesses for recording evidence during the trial at any stage of the trial even after closure of prosecution evidence and may allow the application if facts of the case so warrant in order to do C complete justice because primary function of the Court is to reach the just conclusion and find out the truth but neither the prosecution nor the defense could be allowed to produce additional evidence to fill up the lacunas under section 540, Cr.P.C. As held earlier, in the instant case, the prosecution has already examined 21 witnesses in support of its case, out of them 6 witnesses have been examined as eye-witnesses of the occurrence. Therefore, the trial Court failed to appreciate section 540, Cr.P.C. In its true perspective and allowed seven additional witnesses to be examined.
14. ' For the above mentioned reasons, I accept this revision petition and set aside the impugned order dated 8-9-2012 of Additional District Court of Criminal Jurisdiction Rawalakot because neither the defence nor the prosecution can be allowed to fill up lacunas. As delay in the trial has occurred due to the passing of impugned order; therefore, the trial Court is directed to conclude the trial preferably as soon as possible.