SHAHNAWAZ TARIQ, J.---Through captioned miscellaneous application, applicant Mehboob Ali has impugned order dated 23.05.2015, passed by the Court of IV Additional Sessions Judge, Mirpur Mathelo, whereby application filed by him under section 540, Cr.P.C. was declined.
2.Necessary facts spelt out from instant revision are that complainant lodged FIR No,205 of 2011, under sections 302, 148, 149, P.P.C., lodged at Police Station Aurora against applicant and others.
After completion of investigation, Challan was submitted on 18.06.2011, and accused persons were shown as absconders. Subsequently, matter was re investigated and present applicant was found to be innocent and his name was placed in column-No,2 with recommendations of release of accused.
3. Learned Counsel for applicant contended that on application of one relative of accused, case was re-investigated under the order of SSP Ghotki and applicant was found to be innocent, hence evidence of second Investigating Officer is necessary to reach on right conclusion; that re- investigation report is available on record; that applicant will be satisfied if the trial Court may be directed to allow the applicant to examine Investigating Officer SIP Hadi Bux Bozdar as defence witness and produce re-investigation report. He relied on the case of Muhammad Ashraf v. The State and 4 others (2007 PCr.LJ 905).
4. Pursuant to the notice issued by the Court, complainant Ghulam Hussain appeared before the Court on last date along with Mr. Shamsuddin N. Kobhar advocate who undertook to file his Vakalatnama on his behalf and matter was adjourned on his request. Today, when case was called in the morning, on the request of complainant case was kept aside for appearance of Mr. Shamsuddin N. Kobhar advocate who was reported to be 1-..,sy before another Bench. Again this matter was taken-up at 11.00 a.m. but position remained same.
5. Considering the arguments, learned APG extended no objection.
6. Perusal of material available on record and consideration of arguments advanced by the parties emanate that applicant has been facing his trial in Sessions Case No,535 of 2011, vide FIR No,205 of 2011, under sections 302, 148, 149, P.P.C. of Police Station Ubauro. After conclusion of investigation, Challan was submitted before the Court under section 512, Cr.P.C. and accused persons were shown as absconders. Subsequently, Mohammad Azam being the relative of applicant, moved application to SSP Ghotki for re-investigation, and SSP Ghotki vide office order dated 20.08.2011, entrusted re-investigation to SIP Hadi Bux Bozdar, who after recording statements of witnesses, submitted subsequent report on 20.09.2011 before learned trial Court which was taken on record and made part of the proceedings and copy whereof is available at page-25 of the file. Applicant moved application before learned trial Court for summoning Investigating Officer Hadi Bux Bozdar for recording his statement but same was declined without any justification. Bare perusal of the impugned order dated 23.05.2015, reflects that the trial Court while declining application under section 540, Cr.P.C. has held as under:- "It would be in the fitness of things that the subsequent report regarding the innocence of accused was forwarded to this Court which shows that investigating Officer had placed the accused in column Nc. 2 of the Challan which by now is part of the record, and judicial notice of which can be taken in criminal trial."
7. In case of Ansar Mehmood v. Abdul Khalique and another (2011 SCM R 713), the honourable Supreme Court has observed as follows:- "Where any evidence is essential for just decision of the case, it is obligatory upon the Court to allow its production and examination".
It was further held as under:- "After close of prosecution evidence, complainant filed application to produce two doctors and report of medical board at the stage of final arguments. Trial Court dismissed the application on the ground of its being filed at belated stage. Order passed by Trial Court was maintained by Lower Appellate Court in exercise of revisional jurisdiction and also by High Court exercising Constitutional jurisdiction. Powers of Court under S. 540, Cr.P.C. were the widest in its amplitude.
Court was obliged to summon evidence of material witness whose evidence was essential for just decision. Court while exercising power under S. 540, Cr. P. C. had to guard itself from exploitation and should keep guiding principle, what the ends of justice demanded and to avoid filling gaps in negation of justice. When court had arrived at the conclusion that evidence was essential for just decision, then delay in moving application was not relevant. Court itself was empowered even without application from any of the parties to summon witness deemed essential for just decision by applying its judicial mind. Medico-legal certificate was issued by Medical Officer and Radiologist opinion fracture on the person of injured. Authenticity of medico- legal certificate was questioned and medical board was constituted at the instance of accused and medical board rendered its opinion. Both the documents were authorized by medical officers in discharge of their functions, genuineness of which could not be doubted. Accused would have ample opportunity to discredit the evidence on the touchstone of cross-examination. Supreme Court set aside the orders passed by all the courts below and allowed application for summoning of doctors. Appeal was allowed."
In the case of Pervez Ahmed v. Munir Ahmed (1998 SCM R 326(a)), the honourable Supreme Court has observed as follows:- "Court under 5.540, Cr. P. C. has plenary powers for summoning a person as witness or re- examining any person already examined at any stage of the proceedings if such 'evidence appears essential for just determination of controversy involved in the matter."
8. Indeed, the alleged offence involves capital punishment i,e, punishable for death or imprisonment for life, thus in the prime interest of justice, the application of applicant for calling second Investigating Officer should have been examined and considered judiciously in purview of section 540, Cr.P.C. under which Court has the widest scope to consider such plea and same should not have been declined in the B. mechanical manner, when the subsequent report submitted by Investigating Officer before the trial Court, had already made as part of the record and trial Court in impugned order has held that judicial notice of subsequent report can be taken at trial which also reflects that subsequent report was not discarded by the Court.
9. It is well settled that provisions of section 540, Cr.P.C. confer ample and inclusive powers to the Court to issue summons to any person whose evidence is essential for dispensation of justice, whether his name is mentioned in array of witnesses nor not. Court itself is empowered to call any witness or person irrespective of stage of the proceedings even without moving any application from the parties, if deemed essential for just decision of the case by applying its prudent mind. The wisdom behind the scheme of section 540, Cr.P.C. is to ensure that innocent person should not be convicted and accused may be afforded reasonable opportunity to contradict the allegations of the prosecution and prove his innocence and such application should not be declined merely on the legal technicalities.
10. For the foregoing facts, circumstances, case law and no objection extended by learned APG, instant revision application stands allowed. The learned trial Court is directed to examine SIP Hadi Bux Bozdar as defence witness who may produce investigation report before the Court.