' WAQAR AHMAD SETH, J.---Izzat Khan, petitioner has filed this Criminal Revision Petition against the order of learned Additional Sessions Judge-I, Nowshera, who vide order dated 8-5-2012 allowed the application of complainant under section 540, Cr.P.C. For recording of statement of Mst. Suba Jan as P.W./ocular witness.
2. Precise facts narrated in the petition and argued at the bar are that a case vide F.I.R. No,31 dated 13-1-2011 was registered at Police Station, Akora under section 302/34, P.P.C. Against Gul Badshah and Ahmad Shah sons of Abdul Karim wherein, brother of the deceased was complainant and eye-witness of the occurrence. On 21-1-2011 father of the deceased namely Mir Dil recorded his statement under section 164, Cr.P.C. Before the court of learned Judicial Magistrate-III, Nowshera, wherein, he charged the present accused/petitioner for the murder of his son and exonerated the previously charged accused namely Gul Badshah and Ahmad Shah, without disclosing any source of information.
3. The trial of the instant case has commenced and charged has been framed against the petitioner on 7-12-2011 and after a lapse of almost one and half year from the occurrence the complainant moved an application under section 540, Cr.P.C. Before the trial Court for recording the statement of one Mst. Suba Jan, which was allowed on the same day vide the impugned order dated 8-5-2012, hence this criminal revision petition.
4. Arguments heard and record perused.
5. Section 540, Cr.P.C. Empowers the trial Court to summon material witness or examine person present which reads as under:-- ,u>540. 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.
6. Mst. Suba Jan is the mother of the victim as well as the accused, in a case where accused has committed murder of his younger brother, thus this fact alone is sufficient for recording the statement of mother, who is even today present in the court. It appears that no prejudice will be caused to the accused/petitioner rather a very natural witness will help in deciding the matter on true facts, specially in the circumstances when no mala fide has been alleged and their exist no pre-conditions for examining such witnesses, in such like situation.
7. The solitary purpose of judicial proceeding in criminal cases is to find out the truth and to arrive at a correct conclusion and to see that no innocent person is punish and if it appears essential to the court that B the evidence is necessary for just decision of the case, the trial Court is vested with the jurisdiction to call any witness. The main thing underlining the section is to empower the court to adopt all possible C devices in accordance with law to discover the truth and thus giving it a free hand, even to summon or recall the witnesses. Wisdom is drawn from PLJ 2004 Supreme Court 642.
8. Court has to exercise such powers judiciously for just decision of the case, keeping in view circumstances of each and every case. In the D instant case, the elder brother has murdered his younger brother and as such the mother statement will help in deciding the case on true facts.
The mother seems to be a material witness whose evidence would affect on the fate of the case, thus, such a witness must be summoned before the conclusion of inquiry and trial. Even otherwise, the words any E person has been used in the section 540, Cr.P.C. Which requires no qualification except that such person fulfils the requirements of being helpful for such decision of the case.
9. In view of the above, while dismissing the Criminal Revision Petition, it is held that summoning or examining any person is the power, of the trial Court, where evidence of any person appears to be essential to the just decision of the case. Order accordingly.