' SHAHID HAMEED DAR, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the validity of order dated 27.1.2012, whereby learned Additional Sessions Judge, Lahore upset order dated 15.12.2011 of the learned Judicial Magistrate, Lahore and allowed application of Mst.Nabeela Gulzar (respondent No,1) for re- summoning and re-examining Qadir Bakhsh SI P.W.5 (erroneously mentioned as Yaqoob Bakhsh SI in the impugned order) under section 540 Cr.P.C.
2. Mst. Nabeela Gulzar (respondent No,1) is the complainant of case FIR No,547/08, dated 19.7.2008, under section 489-F P.P.C., Police Station Defence-A, Lahore, wherein she has alleged that her real brother Nasir Gulzar (petitioner) issued a cheque of Rs,55,30,000/- to refund the trust-amount to her, which she presented for encashment, but it was bounced by the bank due to insufficient funds; after necessary investigation, a report under section 173, Cr.P.C. Was submitted before the learned trial court, where trial of the petitioner almost stood concluded, when Mst.Nabeela Gulzar moved an application under section 540, Cr.P.C. Before the trial court to re-summon and re-examine Qadir Bakhsh, SI (P.W.5), which was dismissed by it on 15.12.2011, whereafter she filed a revision petition against the said order and it was accepted by the learned revisional court on 27.1.2012. Hence, the instant petition.
3. Learned counsel for the petitioner has submitted that Qadir Baldish SI/I0 had been examined as P.W.5 and he gave a detailed account of his investigation before he was cross-examined by the defence; the respondent-lady happened to be real sister of the petitioner and she named her father Gulzar Ahmad, who was also the petitioner's father, a witness of her case, but he refused to support her false assertion due to which she gave him up, having been won over by the accused, through a written application; Gulzar Ahmad opted to appear in defence of Nasir Gulzar (petitioner) and tendered evidence as D.W.2 on 6.5.2010; the petitioner closed his defence evidence on 6.5.2010, whereafter his case was fixed for final arguments by the trial court; his sister (respondent No,1) moved an application with the prayer that Qadir Bakhsh SI (P.W.5) might be re- summoed and re-examined so as to rebut the contentions of D.W.2, which was solely meant for filling in lacunae of the prosecution case and delay the conclusion of trial of the petitioner learned trial court rightly rejected the said application of the respondent-lady but learned revisional court misunderstood the proposition and allowed the revision petition flimsily through the impugned order, which being illegal may be set aside.
4. On the other hand, learned counsel for respondent No,1 submitted that the petitioner's as well as that of the respondent-lady's father is one and the same person, who succumbed to the pressure of the petitioner and distorted the facts while deposing as a defence witness, hence, his statement needed verification, which could only come from Qadir Bakhsh SI, who already stood examined as P.W.5; Gulzar Ahmad's denial to have joined the investigation or having made no statement before the investigating officer necessitated re-summoning and re-examining of the investigating officer, who had recorded him under section 161, Cr.P.C.; the revisional court felt necessity of removing the doubts, created by Gulzar Ahmad DW and passed the impugned order logically, which may be sustained, so as to enabling the trial court reach a just conclusion of the case.
5. Learned Law Officer concurred with the submissions of the respondent lady's counsel and contended that re-summoning and re-examination of Qadir Bakhsh SI (P.W.5) is essentially needed by the trial court to do complete justice and formulate judicious opinion as to guilt of the accused (petitioner). He has further submitted that the impugned order has impeccably been pronounced, therefore, it may be left intact.
6. After hearing the learned counsel for the parties and perusing the record, it is observed that the complainant-lady/ respondent No,1 looked more interested in protracting proceedings of trial of her real brother, Nasir Gulzar (petitioner) in afore-noted FIR-case, as she moved an application under section 540, Cr.P.C. For re-summoning and re-examining Qadir Bakhsh SI, the investigating officer, who had already been examined by the prosecution as P.W.5, after both the sides had closed their evidence and case had been fixed for final arguments by the learned trial court. A copy of testimony of Qadir Bakhsh SI (P.W.5) is available on the record, which shows that he had rendered an exhaustive statement that could easily be taken into consideration by the trial court together with the other pieces of evidence to reach a just conclusion of the case. The examination of a given-up prosecution witness as a defence witness, as the situation herein is, would hardly justify invocation of judicial discretion under section 540, Cr.P.C. By the learned trial court, for, this provision of the Code cannot be brought forth to let a party fill-in the lacunae of its case. It cannot be understood by any argument as to how the said investigating officer's recalling and reexamination was essential to the just decision of the case. Learned trial court has rightly observed in its application-dismissal order that lacunae of the case must not be permitted to be filled-in by any of the parties attached thereto. Learned revisional court appears to have been swa yed away by the depositions of the said defence witness, who originally was a prosecution witness, and it fell in an error by observing in the impugned order that his recalling and reexamination as necessary to the just decision of the case, albeit it didn't look so at all. It was the complainant-lady herself, who did not keep faith in her father and gave him up on the objection of having been won-over by the accused. His testimony though recorded as a defence witness shall be scanned by the learned trial court in the perspective of total evidence and material available on the record, including learned public prosecutor's statement as to giving-up the said witness in the noted backdrop. The examination of Gulzar Ahmad as a defence witness does not necessarily envisage recalling or reexamining the investigating officer (P.W.5), as it, on one hand, would unjustly allow a party to fill in the lacunae of its case and, on the other, it may cause prejudice to the second party's case. The impugned order is not based on any rationale nor does it serve the ends of justice in any manner, hence, it is liable to be annulled. Done accordingly.
7. This petition stands allowed resulting in resurrection of order of the learned trial court passed by it on 15.12.2011. No order as to costs.
8. Before parting with this order, it is directed that the learned court below would conclude trial of the accused/petitioner within a fortnight from the date of communication of this order, under intimation to this court through its Deputy Registrar (Judi.)
9. A copy of this order be transmitted to the learned trial Court for necessary information and compliance, through some swift means.