' By means of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A, of the Code of Criminal Procedure, 1898, Ghulam Farid petitioner has called in question the order dated 9-7-2013 passed by learned Judge, Anti-Terrorism Court, Dera Ghazi Khan whereby Mst. Rukhsana Bibi P.W. Was given up as she failed to give rational answers to the questions and the order dated 11-2-2014 has also been impugned through the instant petition whereby an application moved by the petitioner for summoning of Mst. Rukhsana Bibi as a court witness has been turned down.
2. The facts leading to institution of instant petition are that petitioner is complainant of a private complaint "Kundan Mai v. Ghulam Farid" pending adjudication before the learned Special Judge Anti-Terrorism Court, Dera Ghazi Khan. Mst. Rukhsana Bibi is one of the victim of occurrence reported through the private complaint; as she allegedly sustained burn injuries result of sprinkling of acid. On 9-7-2013 Mst. Rukhsana Bibi star injured witness of the complaint was called to stand in the witness box; before recording of her evidence she was questioned to ascertain whether she was capable of giving evidence by understanding the nature of questions and could give rational answers thereto, being minor. When questions were being asked, counsel for the complainant at his own stated before the learned trial court that Mst. Rukhsana Bibi being minor is unable to give rational answers, whereupon she was given up on the basis of that statement. Thereafter an application was submitted by complainant/petitioner under section 540, Cr.P.C. Read with section 338-F, P.P.C. And section 3 of Nafaz-eShari'ah Act, 1991, which has been declined vide impugned order dated 11-2-2014 by the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan. Hence, this petition.
3. In support of this petition, learned counsel for the petitioner has contended that Mst. Rukhsana Bibi daughter of Ghulam Farid petitioner appeared before the court and her cursory statement was recorded, wherein, she disclosed all details of the occurrence very confidently and when later on she appeared before the learned trial Court as P.W.2, three questions were put to her and the learned counsel for the complainant without any cogent reason gave-up her evidence. The learned counsel submits that Mst. Rukhsana Bibi was the star witness of the case as she was also injured during the occurrence, therefore, the complainant moved an application under section 540, Cr.P.C. For re-summoning her, but the learned trial Court dismissed the said application through the impugned order dated 11-2-2014. Further submits that when Mst. Rukhsana Bibi appeared in the witness box as P.W.2, the questions put to her were not relevant to assess her mental approach and maturity. Adds that it was not the order of the learned trial Court that witness is not mature enough to understand the questions put to her and it was only the statement of learned counsel for the complainant. Lastly, argued that under section 540, Cr.P.C., the trial Court had ample jurisdiction to re-summon and reexamine any witness.
4. Conversely, learned Deputy Prosecutor General assisted by the learned counsel for respondents Nos. 3 to 5 has vehemently opposed this petition on various grounds.
5. We have heard the learned counsel for the parties and also gone through the impugned orders as well as the relevant provisions of law with due care and caution.
6. The dismissal of application filed by the petitioner is devoid of judicial consideration. The Court of criminal jurisdiction enjoys plenary powers to summon a person and examine him as a witness at any stage of trial under section 540, Cr.P.C. When evidence of such person appears to the court essential to do the just decision of the case. For ready reference section 540, Cr.P.C. Is reproduced as under:-- "540. Power of 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."
' From the perusal of the above, it demonstrates that section 540, Cr.P.C. Is divided into two parts first is discretionary in nature whereas the second is mandatory. Solitary purpose of judicial proceedings in criminal cases is to find out the truth and to arrive at a correct calculation and to see that no innocent person is punished. If it appears essential to the Court that the evidence is necessary for just decision of the case, the trial Court is vested with jurisdiction to reexamine any witness and the only requirement is that his/her examination should be essential for the just decision of the case. Mst. Rukhsana Bibi was the star witness of the case as she was also injured during the occurrence and her statement was essential for just conclusion of the case. Court cannot be expected to sit as silent spectator even when it notices non-production of certain witnesses to be likely to result in miscarriage of justice. There is no doubt about it that Mst.
Rukhsana's name is mentioned in the F.I.R. And she was also injured during the occurrence. Her presence, therefore, cannot be doubted in any manner, her young age at the time of occurrence that by itself would not ipso facto render her incapable of becoming a witness under Article 3 of Qanun-e-Shahadat Order, 1984. In such a situation on being an inmate of the house where the occurrence took place, she is the most important witness to be examined at the trial and her examination would definitely advance the interest of justice. Main purpose of entire judicial proceedings is to find out the truth and to arrive at the correct decision. Second part of the section is obligatory on the court to examine such a witness ignoring technical and formal obligations.
7. Summoning of Mst. Rukhsana under section 540, Cr.P.C. Would not be termed or regarded as a step towards filling of gaps or lacunas as question of prejudice would also not arise because in doing so court would be giving effect to a provision of law. Moreover, in `Adab-ul-Qazi' it has been stated as under: {{URDU TEXT}}
8. The honourable Judges of Supreme Court of Azad Jammu and Kashmir in Qadeer Hussain v. The State (1995 PCr.LJ 803) have observed that rule enunciated in Article 3 of The Qanun-e-Shahadat Order, 1984, is not an absolute or inflexible rule. It means that observing intellect of a child witness in shape of questions and answers is not the requirement of law. The Court was quite competent to give its observation with regard to the intellect of the witness. It would mean that only requirement is the satisfaction of the Court. It may be pointed out that in the instant case, the child witness who was produced by the prosecution in support of its case was of the age cf 10/11 years. She was not of the age so as not to understand the nature of questions put to her. Even otherwise, a child of tender years is not by reason of his/her youth, as a matter of law, absolutely disqualified as a witness.
There is no precise age which determines the question of competency of a person to give evidence. In case of a child witness it is immaterial whether he/she can understand and answer in a rational manner the questions put to C him/her. No general rule of universal application can be laid down that in no case the evidence of a child witness be believed. Each case depends upon its particular facts and circumstances. Moreover, it was not the order of the learned trial Court that witness is not mature enough to understand the questions put to her rather her evidence was given up on the statement of learned counsel for the complainant. Even the judge has inherent powers to ensure the justice is done, in cases when he smells foul play the learned trial judge would not only be justified, but would in fact be duty bound, in the interest of justice, to ascertain the facts himself with the application of judicial mind. In the present case there was enough material before the learned trial Judge to come to the conclusion that in giving up the sole injured witness, the complainant counsel had acted rather recklessly and perhaps at the instigation, if not in collusion with, persons interested in stifling the prosecution case. Thus, the trial Court has erred in law by not taking into consideration the cursory statement of Mst. Rukhsana Bibi recorded by the learned Judge Anti-Terrorism Court earlier on 16-5-2012.
9. For what has been stated above we accept this petition, set aside the impugned orders and the learned trial Court is directed to examine Mst. Rukhsana Bibi as a prosecution witness who was given up by the counsel for the complainant being minor.