TARIQ SALEEM SHEIKH, J.---This revision petition calls in question order dated 16-12-2016 passed by the learned Additional Sessions Judge, Jalalpur Pirwala, whereby the Petitioner's application under Section 540, Cr.P.C. for summoning injured PWs Mst. Izat Mai and Mst. Faiz Mai was dismissed.
2. The facts relevant for the adjudication of the present petition are that the Petitioner got FIR No, 389/2010 dated 15-09-2010 registered against Respondents Nos, 2 to 9 at Police Station City, Jalalpur Pirwala, for offences under Sections 324/337-A(i)/342/148/149, P.P.C. Subsequently, on the death of Naveed Abbas, Section 302, P.P.C. was added. The Investigation Agency probed into the case and found Respondents Nos, 2 to 9 guilty. Report under Section 173, Cr.P.C. was submitted accordingly. The learned Additional Sessions Judge indicted them and put them to trial. During the course of trial the prosecution produced 22 witnesses. On 22-10-2016, after recording the testimony of PW-22 Dr. Saleem Akhtar and receiving certain documentary evidence, the learned trial Court adjourned the case to 29-10-2016 for closing of the prosecution evidence and for the 'statement of the accused (Respondents Nos, 2 to 9). under Section 342, Cr.P.C. On 29-10-2016, the learned prosecutor was not available. In his absence the learned counsel for the Petitioner/Complainant made a statement whereby he gave up PWs Mst. Izat Mai, Mst. Faiz Mai, Muhammad Rafiq, Abdul Rasheed and Ghulam Mustafa 780/C. Thereupon, the case was adjourned to 5-11-2016 and the learned Court once again fixed it for closing of the prosecution evidence. The case was subsequently listed for different dates but the prosecution evidence could not be closed. On 5-12- 2016, the learned DDPP filed an application under Section 540, Cr.P.C. for summoning PW Samiullah 1081/C and then, on 10-12-2016, the Petitioner/Complainant submitted another application for summoning PWs Mst. Izat Mai and Mst. Faiz Mai aforesaid (who were earlier given-up by the learned counsel for the Complainant vide statement dated 29-10-2016). The learned trial Court, through a single order dated 16-12-2016, allowed the former application but dismissed the latter. It is this order which has been assailed in this petition insofar as it refuses to summon Mst. Izat Mai and Mst. Faiz Mai.
3. The learned counsel for the Petitioner contends that Mst. Izat Mai and Mst. Faiz Mai are the injured witnesses of the case and are thus important witnesses. Their testimony is vital for the prosecution's case and if they are not examined it would cause miscarriage of justice. The learned Law Officer representing the State supports this contention.
4. On the other hand, learned counsel for the Respondents Nos, 2 to 9 has controverted the aforementioned contentions and has defended the impugned order. He has argued that the Petitioner/Complainant gave up the PWs after due consideration and application of mind. He cannot be permitted to go back on his decision. Further, if this application is allowed at this belated stage it would prejudice the Accused/Respondents Nos, 2 to 9.
5. Before I consider the respective contentions of the learned counsel for the parties, it may be beneficial to reproduce Section 540, Cr.P.C. because the entire controversy revolves around it:--
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 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.
6. A bare reading of Section 540, Cr.P.C. shows that it consists of two parts which are clearly distinguishable. The first part empowers the court to summon any person as a witness or examine any person in the attendance even if he had not been summoned as a witness. Besides, it may recall and examine any person already examined. These powers may be exercised at any stage of an inquiry, trial or proceedings under the Code. On the other hand, the second part ordains that the Court shall summon and examine or recall and re-examine any such person if it appears to it that his evidence is imperative for a just decision of the case. A vital distinction between these two parts as the legislature has used the word "may" in the first one part and "shall" in the second. This makes the former discretionary and the latter obligatory. In "Mehrzad Khan v. The State" (PLD 1991 SC 430), the august Supreme Court of Pakistan observed that "the word 'may' in certain circumstances, if the context in which it has been used so demands, can be construed as 'shall' and the word 'shall' can be interpreted as 'may'. But if in a particular provision of a statute the above two words are used, in that event the same would carry their normal connotation in the absence of any compelling reason to construe them otherwise."
7. The distinction between the two parts of Section 540, Cr.P.C. was explained in the case of "Muhammad Azam v. Muhammad lqbal and others" (PLD 1984 SC 95) as follows:-- "This provision is divided into two parts: one where it is only discretionary for the Court to summon a Court witness suo Motu or on application, and the second part where it is mandatory for the Court to do so. The main condition to be satisfied with regard to the second part is that the evidence to be summoned under this part should appear to the Court to be essential to the just decision of the case."
8. The above view was also reiterated in "The State v. Muhammad Yaqoob and others" (2001 SCM R 308) where it was held that in order to call additional evidence the Court is not required to wait for the prosecution or the defence to make an application to it. Further, their carelessness or ignorance should not hold it from proceeding to summoning material witness on its own to meet the ends of justice.
9. In Muhammad Azam's case (supra) the expression "appears to it" used in the second part of section 540, Cr.P.C. was examined and it was ruled that even when it is not possible for the Court to give a clear verdict with regard to a piece of evidence it may still exercise this power. It was held:-- "The use of the expression "appears to it" in the second part of Section 540 gives ample indication that even when it is not possible to give a conclusive verdict with regard to the item of evidence being essential or otherwise, yet it must in any case at least "appear" to the Court that it is essential, before taking action under the said part of Section 540. And for that matter as observed earlier, it would not be necessary for the trial Court to hold a separate inquiry so as to reach a conclusion whether an item of evidence is essential for the just decision of the case. It would be enough if it appears so to the Court from any material or inference from the material including that which is already available to the Court in any form---Admitted evidence or material otherwise lying on the judicial and other files before it.
10. The main purpose of judicial proceedings is to find out the truth. Section 540, Cr.P.C. also seeks to achieve that object. It enables the Court to get to the truth and to arrive at the correct and just conclusion and thus obviates the possibility of miscarriage of justice. This argument has not only been accepted but reiterated in a number of cases, inter alia including "Maulvi Hazoor Baksh v. The State" (PLD 1985 SC 233), "Abdul Salam v. The State" (2000 SCM R 102), "The State v. Muhammad Yaqoob and others" (2001 SCM R 308), "Muhammad Murad Abro v. The State, through A.G.
Balochistan" (2004 SCM R 966), "Shahbaz Masih v. The State" (2007 SCM R 1631) and "Nawabzada Shah Zain Bugti and others v. The State" (PLD 2013 SC 160). This power can be exercised even where a person is not cited as a witness in the challan case, or as the case may be, in the private complaint. The only condition is that he should be a material witness and his decision should be imperative for the just decision of the case.
11.Reverting to the instant case, it may be noticed that the Petitioner had made the application under the first part of Section 540, Cr.P.C. However, before I discuss the merits of the said application let me first take up the issue regarding the effect of the statement of the learned counsel for the Petitioner/Complainant recorded on 29-10-2016. No doubt as per dictum laid down by the Hon'ble Supreme Court in "Faqir Ullah v. Khalil-uz-Zaman and others" (1999 SCM R 2203) in cases involving murder and hurt to body the complainant is a necessary party, it does not make him incharge of the prosecution. Section 265-A, Cr.P.C. carries a specific stipulation that in every Sessions trial initiated upon a police report, the prosecution shall be conducted by the Public Prosecutor. Again, section 493, Cr.P.C. lays down that the Public Prosecutor may plead in all cases under his charge before any Court and the pleaders privately instructed are to act under his direction. In view of the unambiguous command of sections 265-A and 493, Cr.P.C. only the Public Prosecutor had the authority to give up any witness in the instant case though he may have consulted the Petitioner/Complainant and his counsel in this regard. Since the statement recorded by the learned counsel for the Petitioner/Complainant in the present case is contrary to the statute, it has no legal effect and is not binding on the prosecution. This is not an irregularity curable under section 537, Cr.P.C.
12. Perusal of the record shows that the application under section 540, Cr.P.C. made before the learned trial Court was filed by the Petitioner/Complainant and not by the learned prosecutor. Such an application was not maintainable in view of sections 265-A and 493, Cr.P.C. alluded to above. It ought to have been made by the learned Prosecutor or at least forwarded by him.
13. Even on merits, the impugned order suffers from legal infirmities. The learned Additional Sessions Judge dismissed the application of the Petitioner on two grounds. First, it was made to fill up lacunae in the prosecutions case and, secondly, to delay the conclusion of the trial. However, the learned Judge failed to give any reasons for this holding. He did not address the basic question as to whether the evidence of Mst. Izat Mai and Mst. Faiz Mai was necessary for the just decision of the case. This omission has rendered the impugned order unsustainable under the law. The Hon'ble Supreme Court also disapproved such a summary disposal of an application under section 540, Cr.P.C. in Shah Zain Bugti's case (supra). Relevant excerpt is reproduced hereunder:-- "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."
14.The argument that if additional evidence is allowed to be summoned it would cause delay in the conclusion of trial is also not tenable. Justice cannot be sacrificed at the altar of convenience.
Equally fallacious is the contention of the learned counsel for Respondents Nos, 2 to 9 that an application under section 540, Cr.P.C. cannot be made at the fag end of the trial. One must appreciate that section 540, Cr.P.C. empowers the trial Court to call or recall any witness "at any stage" of the trial. It does not provide any limitation with respect to time. As such, section 540, Cr.P.C. can be invoked at any stage of the proceedings in the aid of justice.
15.For the above reasons, I hold that the Petitioner's application under section 540, Cr.P.C. was not maintainable. However, if such an application is filed by a proper person, the same shall be decided by the trial Court strictly on merits keeping in view the entire record. The impugned order would not be a bar for entertaining the application.
16.I may also observe that notwithstanding the fact that the Petitioner's aforementioned application was not maintainable, it does absolve the trial Court of its duty to determine whether the summoning of Mst. Izat Mai and Mst. Faiz Mai as Court-witnesses was essential for just decision of the case. If it finds that their evidence is essential, then it has no discretion in the matter but is obliged to summon them as such.
17.This petition is disposed of in the above terms.