' IKRAMULLAH KHAN, J.---Through this consolidated judgment, the instant criminal revision as well as Criminal Revision No.10-P of 2014, are to be disposed of, as not only common question of law is involved but also being arising out of the same F.I.R.
2. Instant as well as the connected, criminal revision, is directed against the impugned judgments of learned Additional Sessions Judge, Mardan dated 16-12-2013 and 11-1-2014 respectively, whereby the learned trial Court has turned down the application for summoning of witnesses.
3. In essence, the respondents were facing charges under section 324/34, P.P.C., in the Court of learned. Additional Sessions Judge Mardan, whereof the prosecution examined their all respective witnesses, well mentioned therein the calendar witnesses, annexed thereto the report form submitted under section 173, Cr.P.C. On closure of evidence by the prosecution, statements of all the respondents-accused thereunder the provisions contained in section 342, Cr.P.C. Were recorded and the case was fixed therefor, hearing on the case, when in the meanwhile, the complainant moved application for summoning of witness namely Dr. Mohammad Ayaz, Medical Officer, Civil Hospital Dargai, whereas in another application prayed for summoning of another witness namely Raid Ali, (who had arrested the accused), in order to bring on record the Medico- legal Report, prepared by the doctor concerned as well as to examine the police official who had arrested the accused facing trial.
4. Both the aforestated applications were dismissed by the learned Additional Sessions Judge, Mardan vide his impugned judgments dated 16-12-2013 and 11-1-2014, respectively hence the petitioner has challenged both the impugned judgments through these separate criminal revisions of even date.
5. Learned counsel for the petitioner submitted that, both the witnesses are essential whose evidence would cast effect on the fate of the case as such must be summoned. Further contended that complainant-remained under treatment by Dr. Muhammad Ayaz, while the accused were arrested by Raid Ali, SHO of the concerned Police Station and his evidence is essential for just and fair decision of the case, but the learned trial Court on mere conjectures and surmises, illegally rejected the prayer of the prosecution, whereby failed to exercise the jurisdiction vested in him, which has not only caused great injustice to the prosecution and has also rendered the judgments based on misconstruction of law and facts, could not be sustained.
' I have heard the learned counsel for the petitioner and anxiously considered his arguments in light of the law and facts on record.
6. The provisions contained in section 540, Cr.P.C. Confers jurisdiction upon the Court to summon material witnesses which is read as; "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 reexamine 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. The provisions contained therein section 540, Cr.P.C. Bifurcated it into two parts, first part is discretionary in nature, whereas the summoning of a witness depends upon the sole discretion of the Court, while the 2nd part is mandatory, and left the Court with no discretion to refuse to summon a witness, whereas his evidence is material and essential for just and fair decision of a criminal case.
8. Albeit, the trial Court has unfettered power in matter of summoning a witness, though not cited as a witness in the calendar of witnesses, in case, the trial Court arrived thereof to the conclusion in light of the peculiar circumstances of a case, that the examination of a person as a witness is essential for just and fair dispensation of justice, but this power could not be exercised when the examination of such a A proposed witness introduced later on by any party to the case for the purpose of vexation or delay or defeating the ends of justice.
9. The powers conferred thereupon by the Court, thereunder the provisions contained in section 540, Cr.P.C, could be used to find out the truth but could not be exercised for filling the gaps and lacuna left by either party. Reliance can be placed on the case of "Muhammad Afzal v. The State"
(2001 PCr.LJ 72) as well as "Muhammad Khan v. The State" (2003 PCr.LJ 1778).
10. Court in exercise of his jurisdiction under provisions of section 540, Cr.P.C., shall ensure that by summoning or recalling a witness, would meet the ends of justice but not to give illegal advantage to one party over the other and could not be used as a vehicle of exploitation.
11. It is settled principle of law that the duty of the Court is to administer justice in just and fair manner and nevertheless, assume the status of a prosecutor, to put an accused in undue advantage. Reliance in this regard can be placed on the case of "Abdul Khaliq v. Ansar Mehmood"
(2009 YLR 486) and Mian Manzoor Ahmed Watto v. The State (2002 YLR 2362).
12. Trial of an accused is strictly conducted thereunder the mandatory provisions contained in the Code. Not only the Court but also parties thereto, shall observe the mode and the manner which has been enumerated therein the Code for every action and act.
13. In the instant case, petitioner has applied thereto the Court to summon the proposed witnesses, thereafter recording of statement of accused under section 342, Cr.P.C., while accused facing the agonies of trial since 13-12-2012, and prosecution had closed his side on 17-9-2013 while the application for summoning of witnesses has been moved on 7-1-2014, more or less thereafter a fortnight.
14. The complainant party had not apprised the Court of their witnesses apart from those who were mentioned then the list of witnesses, submitted to the Court along with report-challan under section 173, Cr.P.C.
15. Albeit, the complainant was required thereunder the provisions contained in section 265(F), Cr.P.C. To apprise the Court of his intention of producing any other witness apart from the witnesses already incorporated in the list of witnesses, who remained acquainted with the facts of the case. Section 265(F), Cr.P.C. Is read as; "265-F. Evidence for prosecution.---(1) If the accused does not plead guilty or the Court in its dircretion 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.
' Provided that the Court shall not be bound to hear any person as complainant in any case in which the complaint 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.
(3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing.
(4) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.
(5) If the accused puts in any written statement, the Court shall file it, with the record.
(6) If the accused, or any one of the several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence.
(7) If the accused or any one or 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."
16. Section 265-F is quite comprehensive and has been added in the Code of Criminal Procedure notwithstanding the already existing section 540, Cr.P.C. In order to ensure conducting of a fair trial.
While the provisions contained in section 540, Cr.P.C. Is general one. As the provisions contained in sections 265-A to 265-N stipulate and conduct trials before Sessions Court, shall be given superimposing status as compared to the general provisions of section 540, Cr.P.C.
17. It is also mandatory upon the prosecution to submit before the Court all the statements of P.Ws.
And documents on which it would take reliance, the copies thereof shall be provided to the accused thereunder the provisions contained in section 265-C, Cr.P.C. Which is, read as; "265-C. Supply of statements and documents to accused.---(1) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely;
(a) the first information report;
(b) the police report;
(c) the statements of all witnesses recorded under sections 161 and 164, and
(d) the inspection note recorded by an Investigating Officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any: ' Provided that, if any part of a statement recorded under section 161 or section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused.
(2) In all cases instituted upon a complaint in writing; (a) the complainant shall;
(i) state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of evidence which he is likely to adduce at the trial, and
(ii) within three days of the orders of the Court under section 204 for issue of process to the accused, file in the Court for supply to the accused, as many copies of the complaint and any other document which he has filed with his complaint as the number of the accused; and
(iii) copies of the complaint and any other documents which the complainant has filed therewith and the statements under section 200 or section 202 shall be supplied free of cost to the accused not later than seven days before the commencement of the trial."
18. Non-supply of such essential documents before framing of charge vitiate the whole trial.
Reliance is made in this respect on I the case of "Nadeem Ahmad Khan and others v. The State"
19. Likewise, the accused shall be confronted with all the evidence deposed by witnesses against him and all the duly exhibited documents, otherwise could not be used against the accused in order to convict him on such evidence.
Section 342 Cr.P. C is read as: "Power to examine the accused---(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions or by giving false answers to them; but the Court[...] may draw such inference from such refusal or answer as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(4) [(4)Except as provided by subsection (2) of section 340 no oath shall be administered to the accused]."
20. The legal proposition, which has already been very wisely explained by the trial Court in his impugned judgments, that when no copy of the statement of the witnesses and the documents was to be exhibited by such witnesses had not been provided to the accused at the commencement of the trial before framing of the charge, at this belated stage the complainant could not be permitted to examine and place on record any document in shape of a 2nd medical report and card of arrest, through the proposed witnesses, whose names and description were neither mentioned in the calendar of witnesses nor the Court was apprised of them when the prosecution was called to lead its evidence.
21. To allow such applications at such belated stage would serve no other useful purpose but to increase the agonies of the accused party, albeit they have already suffered since the year 2012.
22. For the reasons given hereinabove, the criminal revision -is accordingly dismissed in limine.