' HASAN FEROZ, J.--- The above Criminal Revision. Application has been filed by Applicant/complainant Mst. Amina Khan D/o Muhammad Younus Khan, being aggrieved and dissatisfied with impugned order dated 01.02.2014 passed by the learned IVth Additional District and Sessions Judge, Karachi (East) whereby dismissed the application seeking issuance of summons for Incharge, Edhi Sardkhana, working there as on 10.07.2007 situated at SP .3/2 Block.No,20, Rashid Minhas Road, Sohrab Goth Karachi along with its relevant record.
2. Brief facts of the case are that applicant/Complainant lodged her report vide FIR No,347/2008 on 09.08.2008 at P.S. New Town Karachi. It has been alleged that Muhammad Ali Younus Khan S/o Muhammad Younus Khan resident of House No, D-83, Block-6, PECHS Karachi by persuasion in Television program and publication of newspaper regarding Asian International Cosmetic Surgery Centre situated at Empire Square Building, Mezzanine Floor, Opposite Ufone Office, Jamaluddin Afghani Road off Shaheed-e-Millat Road, Karachi, Phone No, 4858691-4858692, Mobile 'No, 0333- 2142927 - 0333-3279503 regarding decreasing of fatness by liposuction. So the deceased contacted Dr. Muhammad Hanif Saeed and also paid him fee amounting to Rs,70,000/- i.e, Rs,10,000/- and Rs, 60,000/- on 11.06.2008 and 15.06.2008 at 9-00 a.m. Deceased Muhammad All alongwith his father Muhammad Younus, servant Ayub and Hamid proceeded from his house situated at PECHS to the Cosmetic Centre of Dr. Hanif Saeed situated at Empire Square Building, 36 years old Muhammad Ali was quite healthy and went there by driving his own car. Dr. Hanif Saeed took him to operation theater, where Dr. Hanif Qasim also arrived there and they started liposuction at 11.00 a.m.. When sufficient time passed both the doctors Hanif Saeed and Hanif Qasim put the deceased Muhammad Ali at the verge of death by liposuction and the deceased reached to a critical condition. Then Dr. Hanif Saeed with the help of Dr. Hanif Qasim and. His brother Anis Saeed Raja and his companions Aslam and Shoaib shifted the said Muhammad Ali to Tahir Medical Centre, situated at A/419, C.P. Bearer Society, Block 7/8, opposite Adamjee Nagar, Amir Khusro Road, Karachi in a semi conscious condition to conceal their crime. They also did not provide us any chance to take the said deceased to any other doctor for checkup and to provide him any treatment. They provided treatment to semi conscious Muhammad Ali deceased at Tahir Medical centre to cause his death slowly slowly to save the bad name of Asian Cosmetic Surgery Centre and so also to save Dr. Hanif Saeed and Dr. Hanif Qasim for offence to commit murder. The doctors also concealed offence gave injection to the semi conscious Muhammad Ali to carry his breathing.
The deceased Muhammad All died on 10.07.2008 at 4.00 a.m. In a very miserable and critical position at Room No, 203, Second Floor, Tahir Medical Centre. The said state of offence did not end/stop there. On the contrary Dr. Hanif Saeed and Dr. Hanif Qasim with the help of Hanif Saeed's brother Anis Saeed @ Raja and his two companions Shoaib and Aslam took the charge of the dead body of Muhammad Ali in their hands and did not allow to shift it any where else so that the secret of causing the death of the deceased could not be opened. They took his dead body to Edhi Centre situated at Sohrab Goth and they themselves buried him and thereafter, returned to their houses at 2.30 a.m. Thereafter, they extended threats to complainant that if we lodged the FIR or took any legal action, then they would kidnap our children and exile us from the city.
3. Mr. Muhammad Akbar Khan, learned counsel for Applicant/ Complainant contended that the impugned order is not maintainable in law and on facts, hence liable to be set aside. Learned consul further contended that the learned trial Court failed to appreciate that it is a case of prosecution itself that the dead body of deceased Muhammad Ali was deliberately, unlawfully and without consent of the complainant party was forcibly shifted from Tahir Medical centre to Edhi Centre, Sohrab Goth, Karachi by the nominated accused persons, which fact is mentioned in the FIR and so also:the above fact came on record during the course of investigation. That the evidence of above said Incharge official Edhi Home Centre is required to produce documentary evidence in respect of deposit as the dead body of the said deceased Muhammad Ali at Edhi Home on the same i.e, 10.07.2008 and so also for identification of culprit in Court, who had committed above said heinous offence and also for the corroboration of the entire prosecution case with regard to burial of dead body at the instance of accused persons and without consent of the complainant party who are legal heirs of the said deceased.
4. Learned counsel for the Applicant/Complainant has also relied on PLD 2013 SC 160 (Nawabzada Shah Zain Bugti and others v. The State, 2011 SCM R 713 (Ansar Mehmood v. Abdul Khaliq and another, PLD 2011 Federal Shariat Court 114 (Muhammad Ashraf v. The State and 4 others, 2000 PCr.LJ 1882 (Muhammad Sharif Shar v. The State).
5. I have heard the learned counsel for applicant and learned counsel for the Respondent as well as APG for State and perused the record.
6. Being conscious of the stage of the case wherein sufficient evidence has been recorded and at a belated stage evidence of a person who is not named in the calendar of the witnesses has been sought to be brought whereas the contention of the respondents is that an aspect has already arrived on record in the cross-examination of prosecution witness. The contention of applicant is that ample power has been provided to the Court under Section 540, Cr.P.C. To summon any witness as a Court witness at any stage of case and in that regard reliance has been placed on PLD 2013 SC 160 and further contended that Section 540 consists of two parts one giving discretionary power to the Court and the other imposing an obligation.
7. Learned counsel has also drawn my attention that the Court cannot summarily dismiss any application for additional evidence under section 540, Cr.P.C. That witness was not mentioned in the challan or that it was belated stage of application or that it will fill up lacuna in B prosecution story unless the totality of material is considered for just decision of the case. I have in my view that the order passed by learned ADJ dated 01.02.2014 finds mention of receiving dead body by Edhi Sardkhana and also that the evidence of PW/Complainant discloses that the body was brought to their house prior to approaching to Edhi Sardkhana. So also the charge under section 201/34, P.P.C.
Is in my perusal wherein it is stated that "after his death his dead body was shifted to Edhi Center to suppress the real facts". Therefore if would not be out of place and more specifically attracting the essence of Section 540, Cr.P.C. The summoning of record of Edhi Sardkhana seems to be reasonable for just elucidation of the matter.
8. I have in my respectful view that the purpose of Section 540, Cr.P.C. Is to discern the truth for just elucidation of the matter and can summon any person as a witness or recall and re-examine any person as a witness already examined at any stage of the case.
' The learned counsel also relied on 2011 SCM R 713 which speaks that when a Court had arrived a conclusion that the evidence was essential, for just decision then delay in moving application was not relevant. From perusal of record I find that in a matter of trial any observation made at this stage may affect the proceedings therefore, without dilating upon the evidence so far recorded thus the evidence sought to be recorded under section 540, Cr.P.C. Ought to be allowed for just decision of the case as the provisions of Section 540, Cr.P.C. Empowers the Court for seeking any material at any stage to reach to just and fair conclusion, hence the order of learned ADJ is set aside without prejudice to the trial, and the Incharge Edhi Centre of the relevant date be summoned as Court witness along with the record. It is needless to mention that both prosecution and defence be provided opportunity to cross-examine.
' In terms of above, Cc. Rev: Application No, 42/2014 stands disposed of.