' SALAHUDDIN PANHWAR, J.---The applicant has assailed the order dated 14th March, 2013 passed by the learned Additional Sessions Judge, Kotri in Sessions Case No.52-A/2005 "Re-S/v Malik Naseer" whereby application under section 540, Cr.P.C, moved by applicant was dismissed.
2. Succinctly, the facts leading to the instant revision, are that respondent No.1 Wishnomal recorded F.I.R. At Police Station Thano Bola Khan, alleging therein that on 10-8-2004 at about 0830 hours; he along with his brother Dr. Tekchand, was on the way towards Thannu Ahmed Khan, when they reached at bus stop, meanwhile accused Malik Babar, Malik Humayoon, Malik Naseer (present applicant), Raza. Muhammad alias Razoo Jokhio and two unknown persons, intercepted them.
Accused Malik Babar and accused Malik Humayoon caused fire shot injuries to Dr. Tekchand, with intention to kill him, which he received on his abdomen. While other accused persons caused fire shot injuries on his legs. On hue and cry, witnesses converged there, thus, accused persons ran away. Complainant took injured to Agha Khan Hospital, Karachi and later lodged the F.I.R. With Police Station Bola Khan.
3. The record further spells out that during the course of trial, the applicant moved an application under section 540, Cr.P.C., whereby seeking summoning of the Principal or Administrator of St.
Laurent Grammar School along with relevant school record, as court witness, with regard to the plea of alibi that applicant on the fateful day was in school; and not at place of occurrence.
4. Learned counsel for the applicant has argued that the learned trial Court committed serious illegality by declining the application of the applicant, because summoning of the witness was very much necessary for just decision of the case; the material regarding plea of alibi of the applicant was collected during the course of investigation so also during course of re-investigation yet the prosecution with mala fide act not named the principal or official of the school as a witness in the relevant column of witnesses. He further argued that even without application the trial court(s) can summon any person, who appears to be acquainted with the fact; therefore the learned trial court ought to have allowed the application of the applicant. In support of his arguments he placed reliance on the case laws, reported as Molvi Muhammad Yousif v. The State 2011 YLR 1499, The State v. Muhammad Yaqoob 2001 SCM R 308, Ansar Mehmood v. Abdul Khaliq 2011 SCM R 713, Shah Zain Bugti v. The State PLD 2013 SC 160 and Muhammad Ashraf v. The State PLD 2011 FSC 114.
5. Learned counsel for the respondent No.1, on his turn, seriously opposed the instant application.
He argued that second investigation report is not part of the proceedings; the plea of alibi is to be proved by the accused within meaning of the Article 119 of the Qanun-e-Shahadat Order; trial Court cannot be compelled to examine the witnesses as court witnesses with regard to the plea of alibi. He also referred to provision of section 265-F(vii) of the Code and concluded that order of the learned trial Court is well reasoned hence needs no interference.
6. The learned DPG, while conceding to what was argued by learned counsel for the respondent No.1, supported the order of the learned trial Court.
7. Before diving, into the merits, it would be significant to examine the objective, import and powers of the court(s) within meaning of section 540, Cr.P.C., when the legislatures have provided a mechanism for both prosecution and defence (accused) to bring their respective evidence including exhibiting of document(s). It is suffice to say that the moment Court takes cognizance on a criminal charge, it becomes obligatory upon the prosecution to prove the charge against the accused well within meaning of the Article 117 of the Qanun-e-Shahadat Order, 1984, because an accused enjoys the status of "innocent" till he is found guilty by the Court on the basis of discharge of such burden by the prosecution; nevertheless, if the accused takes a particular plea, including plea of alibi the burden is upon the accused to prove such a fact or plea well within meaning of the Article 119 of Qanun-e-Shahadat Order 1984. Reference, if any, can be made to the case of Sahib Khan v. The State reported in 2008 SCM R 1049, case of Muhammad Aslam v. The State reported in 2003 SCM R 862 and case of Rashid Minhas v. Muhammad Fayaz and others, reported in 2012 PCr.LJ 816 (FSC).
8. At this juncture, the question arises that how and in what manner the prosecution has to prove the charge and when accused has to step forward to discharge their respective burden or cause the dent in prosecution case by leading evidence. Here the reproduction of the provision of section 265-F of the Code is germane, which reads as follows:-- Section 265-F. Evidence for prosecution.---(I) If the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution. (under lining is mine)
Provided that the Court shall not be bound to hear any person as complainant in any case in which the complainant has been made by a Court.
(2) The court shall ascertain from the Public Prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it. (Underlining has been supplied for emphasis): ' Bare reading of the above subsection (1) leaves nothing ambiguous that legislature(s) in their wisdom have made it mandatory by using the word "shall" meaning thereby the court shall take all the evidence as may be produced in support of the prosecution. Further the subsection (2) also is with use of word "shall" whereby the legislature(s) have made it mandatory for the Court to summon any person, who per the prosecution or the complainant, as the case may be, likely to be acquainted with the facts of the case. These provisions make it clear and patent that it is the prosecution which has to lead its side first and this is so because the burden is upon the prosecution to prove its case. The provision of section 265-F(4) of the Code further explains that as to when the accused is to be asked to lead his evidence which reads as under:--
(4) When the examination of the witnesses for the prosecution and the examinational any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.
(Underlining has been supplied for emphasis).
' First part of the above provision makes it clear that it is only after conclusion of the prosecution evidence, however, the second part is also mandatory in its nature because it is also with word "shall" which makes it mandatory for the Court to ask the accused whether he wants to adduce evidence or otherwise. The provision of section 265-F(7) of the Code guarantees that the accused shall also have the same right to examine defence witnesses and production of document(s) which, being material is reproduced:--
(7) If the accused, or any one of several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing.
(Underlining has been supplied for emphasis).
' The provision of subsection (2) and subsection (7) of the section 265-F of the Code are analogous to each other, except that the provision of subsection (2) carries the phrase "to give evidence for the prosecution" while the subsection (7) has no such restriction, instant phrase is not used as a mere formality but it has to be given its due weight. This is for no other reason that one cannot be compelled to depose or lead evidence against his own allegation/claim, therefore, the Legislatures by enacting the provision of section 265-F, in their wisdom to assure fair opportunity to either sides i.e. Prosecution and defence, have provided a fair right and opportunity to both of them to examine any person or to produce any document except where such examination or production appears to the Court to be with purpose of vexation or delay or defeating the ends of justice. Thus it is quite safe to conclude that the prosecution could only be asked or lead evidence which is for. The prosecution. The provision of section 265-F of the Code has provided a complete procedure for both prosecution and the accused to examine the witnesses and to produce the document(s) and since the procedure has made it clear that accused shall be asked to adduce his evidence after conclusion of the prosecution evidence hence if the accused wants the court to summon any person to give evidence or to produce any document he shall have to wait till conclusion of the prosecution evidence. The order of subsection(s) of section 265-F of the Code is so because one cannot be presumed to prove his innocence or deny a claim until the party alleging or claiming is provided an opportunity to establish their plea. This is the objective of provision of Article-117 of the Qanun-e-Shahadat Order. Further, it is well-established principle of law that burden of proof is upon one who asserts certain fact/allegation, since it is now a well-established principle of law that if things are required to be done in a particular manner then the same have to be done in that manner or not at all.
9. Having discussed the above proposition, it would be momentous to append here that provision of section 540 of the Code is an exception to that of section 265-F of the Code. The provision, being under discussion, is reproduced herein-under for clarity and understanding:-- "540: Power to summon material witness or examine persons present. Any Court may, at any stage of any inquiry, trial or other proceedings 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".
' At this moment, it is important to understand that when the section 265-F of the Code casts a mandatory duty upon the Court to summon and examine the witness(s) which the prosecution or the defence, at their respective turn. Hence, it is apparent that by that proviso, the legislature has vested the Court(s) with unlimited powers to summon material witness or examine person present, recall and reexamine any person already examined. The object of the provision of the section 540 of the Code has further been made clear with use of phrase just decision of the case". The perusal of the section 540 of the Code, elucidate, that while exercising the vested powers, the Court can summon, examine or re-examine any person if the just decision of the case, so demands, which is the prime object of Criminal Administration of Justice. Thus it is safe to say that legislatures have not left just decision at the wishes/intention of prosecution or defence but by this exception the legislature(s) have legally authorized the court(s) to deviate from procedure, provided by section 265-F of the Code by which the Court(s) are confined to take evidence at the option(s) of prosecution and defence. It is noteworthy to further elaborate that provision of section 265-F, of the Code provides a mechanism for the prosecution and defence (accused) to get witness(s) or document(s) exhibited at their own while by provision of section 540, Cr.P.C. Is not limited for the benefit of any of either sides but it is aimed for just decision. I find support in my view with the case law referred by learned counsel for the applicant i.e., case of Shah Zain Bugti (supra). The operative part whereof is reproduced hereunder:- "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. (Underlining has been supplied for emphasis).
' The above principle makes it clear that provision of section 540 of the Code shall come into play where the witness or document, sought to be summoned or produced, could not be brought before the Court, otherwise. It means that those witness(s) or document(s), which within meaning of the procedural provision of section 265-F of the Code could well, come before the Court cannot be brought before the Court through exercise of jurisdiction within meaning of the exception, provided by section 540 of the Code. Further, useful to add here that provision of section 540, Cr.P.C. Is not meant to allow any of the parties to fill up the lacunas of their respective cases but it can only be insisted when exercise of jurisdiction is required for just decision of the case.
10. It is settled principle of law that the section 540 of the Code is intended to be wide and the Court enjoys full powers to summon and examine any person as a witness at any stage of trial or inquiry under the Code, however, such wide jurisdiction has been limited by the Legislatures with a deliberate use of phrase "if his evidence appears to it essential to the just decision of the case". It is worth to add here that D every word of the legislature has to be given its due meaning. The limitations, so provided by the legislature, for exercising powers under section 540, Cr.P.C., are to be taken properly. It shall be the material, which is legally brought before the Court, through which the Court will decide whether evidence of a person and production of a document is essential to the just decision of the case or otherwise, therefore, the phrase "at any stage" should not be taken wrongly to compel the Court(s) to examine a witness or exhibit a document without first bringing such material on record which could lead the Court(s) to consider such examination of a witness or production of a document as essential for just decision of the case. Needless to append here that material is brought before the Court(s) through the procedure, so provided by the Code itself; because the section 540 of the Code, restricts such powers and jurisdiction by a deliberate use of phrase "to the inquiry, trial or other proceedings under this Code". It will be conducive to refer, relevant portion of the case of Shah Zain PLD 2013 SC 160:-- "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. (Underlining has been supplied for emphasis).
' The above principle, clarify, that it is the totality of the material, placed before the Court, through which the Court will determine whether examination of the witness or production of the document is essential for just decision of the case or otherwise. Thus in view of above discussion and guidelines, provided by the honourable Supreme Court, I can safely conclude that jurisdiction and power under section 540 of the Code could be exercised where the Court, having taken into consideration the totality of material placed before it, finds examination of any person' or production of any document, essential for just decision of the case which too, where such examination or production could not be done otherwise.
11. Thus, in view of above legal position and discussion I have examined impugned order of the learned trial Court, and find it legal and proper, particularly, when the impugned order itself speaks about the right of the applicant (accused) to examine the witnesses and production of document.
The concluding part whereof is reproduced hereunder:-- "The prosecution has vehemently opposed the application in question. Yet the defence has chance to cite any official of St. Laurent Grammar School to be summoned along with relevant record in support of plea of alibi if the accused so desire".
12. Regarding case law relied by the learned counsel for the applicant, it is suffice to say that it is settled principle of criminal administration of justice that in criminal cases, every case has to be decided on its own peculiar facts and circumstances, however legal principles settled in series of decisions, which comes within the scope of stare decisis or having binding effect under the constitution, has to be followed. Keeping in view the said legal position, I have examined the case- law, in case of Shah Zain Bugti (supra), application for additional evidence was moved by the prosecution, and same was allowed. In case of The State v. Muhammad Yaqoob and others (supra), while deciding appeal, it was surfaced that material witness in defence were not examined and application under section 540, Cr.P.C. Was declined. In case of Muhammad Ashraf v.
The State (supra), it was observed that during trial complainant moved application for inclusion of the name of the DSP (Investigation) as a witness, but the trial Court declined, hence trial Court was directed to summon the witness. In case of Ansar Mehmood (supra), complainant moved application to produce two doctors at the time of final hearing before trial Court, such request was not entertained and by this dictum, Hon'ble apex Court directed trial Court to examine the said witnesses. In case of Molvi Muhammad Yousif (supra), application on behalf of accused for summoning the Court witnesses, moved just after closing they side of prosecution to substantiate their plea of alibi, was dismissed, thus, this Court allowed the same. Since, all cases except case of Molvi Muhammad Yousif are not helpful to the applicant as applicant has preferred application at premature stage, and remedy is available to him to substantiate his plea of alibi by leading defence evidence. With regard, to the case of Molvi Muhammad Yousif with profound respect, I am not in agreement with the conclusion thereof.
13. Accordingly, in view of what has been discussed above, has made me of the view that the impugned order is legal and proper, hence needs no interference.
14. The detailed reasons assigned hereinabove relates to the short order dated 12-7-2013, whereby this criminal revision was dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.