SHAHID HAMEED DAR, J.---The petitioner (Ghulam Rasool) being accused of FIR No,203/2005, dated 26:5.2005, under sections 409, 419, 420, 467, 468, 471 P.P.C., registered at Police Station Civil Line, Faisalabad, is aggrieved of order dated 22.11.2010, whereby learned Special Judge Anti- Corruption, Faisalabad Division, Faisalabad accepted an application under section 540, Cr.P.C. of Sh.Abdul Hafeez Bawa (respondent No,2/ complainant), summoned all the persons mentioned therein, as court witnesses and also requisitioned the inquiry report, formulated by the Pakistan Air Force (PAF).
2. Succinctly, relevant facts of the case, as narrated by Sh.Abdul Hafeez Bawa, Ex-Nazim UC No,184, Chairman Regulation Monitoring Committee, TMA City Faisalabad (complainant) are that he not only witnessed the corruption and corrupt practices of Ghulam Rasool, Lands Officer (petitioner), but also firmly believed that his matric-certificate, bearing Roll No,23744, year 1979, on the basis of which he illegally got employment in the defunct Municipal Corporation, Faisalabad, was a bogus/tampered with document, which, in fact, was of an in-service Wing Commander of Pakistan Air Force, named Ghulam Rasool son of Wali Muhammad; he personally probed into the matter in depth and despatched applications " containing details of corruption, irregularities, illegalities and forgeries of Ghulam Rasool son of Wali Muhammad (petitioner), to General Pervaiz Musharaf, President of Pakistan, the Prime Minister of Pakistan, Chief Secretary Punjab, Chief of Air Staff Aleem Saadat and Air Chief Martial Pakistan Air Force, Islamabad; he challenged bogus matric-certificate of the forger before a civil court; Pakistan Air Force conducted a large-scale inquiry into the genuineness of matric-certificate of its Wing Commander by associating the headmaster of school concerned and the officials of the Board of Intermediate and Secondary Education, Sargodha with it; the relevant admission form was also verified; the Wing Commander Ghulam Rasool appeared before the civil court on 2.3.2005 and tendered attested copy of his matric certificate bearing roll No,23744, year 1979, his admission form and other relevant documents before the court of Rana Muhammad Azam, the learned Civil Judge; the forger Ghulam Rasool is a mere primary pass, who exploited resemblance of his name and his parentage with that of the Wing Commander by getting through the matric result, as published in the gazette and got prepared a bogus certificate on the basis of which he inducted himself as junior clerk in Municipal Corporation, Faisalabad; except for the similarity of the name and parentage, all other particulars of the forger and that of the Wing Commander are at variance inter-se; the Board of Intermediate and Secondary Education, Sargodha has verified genuineness of matric-certificate of the Wing Commander and so has been done by the Headmaster of MC Government High School, Gojra and by authorities of the Pakistan Air Force, but on the other hand, the fabricator was still serving as Lands Officer on the basis of a forged matric-certificate and he had also got prepared a bogus National Identity Card bearing same date of birth, as it figured on the original matric-certificate of the Wing Commander; he submitted photo copies of both the identity cards of the accused for registration of case against him.
After necessary inquiries/ investigations, report under section 173, Cr.P.C. was submitted before the learned trial court (Special Judge Anti-Corruption, Faisalabad Division, Faisalabad), which indicted the accused/petitioner, who pleaded not guilty and claimed a trial. The prosecution produced ten witnesses to prove the charge against the accused, before public prosecutor closed the prosecution case on 17.2.2010 by tendering certain documents in evidence. Thereafter, the accused (petitioner) was recorded under section 342, Cr.P.C. After examination of Arshad Pervaiz, a retired DSP (C.W.1), the accused closed his defence evidence. The case was at the stage of final arguments, when the complainant/respondent No,2, through public prosecutor, moved an application under section 540, Cr.P.C. for requisitioning the inquiry report of the Pakistan Air Force about matric-certificate of Wing Commander Ghulam Rasool and summoning Professor Muhammad Younas and Muhammad Naseer Ahmad, the class-fellows of the Wing Commander/Group Captain and District Registrar, NADRA, Faisalabad along with relevant record, which was allowed by the learned trial court on 22.11.2010. Hence, the instant petition.
3. In support of this petition, learned counsel for the petitioner has submitted that the learned trial court act injudiciously, when it allowed a belatedly-moved application of the complainant (respondent No,2) under section 540, Cr.P.C. only to afford him an opportunity of filling-in lacunae in the prosecution case; the parties to the lis had closed their respective cases and it was the stage of final arguments, when prosecution suddenly woke up and moved the learned trial court by counting its weaknesses and succeeded in availing rare opportunity of abridging its gaps, through the impugned order, which is patently illegal, therefore, it may be set aside and concept of evenhandedness may be allowed to prevail in the best interest of justice.
4.On the contrary, learned counsel for respondent No,2/complainant has vociferously argued that delay in moving the application for summoning of witnesses is immaterial and the foremost requirement of the law is that evidence intended to be adduced is essential for just decision of the case; the evidence to be led and the persons to be examined make it a real essentiality that such evidence must be there on the record, so as to enable the learned trial court to do complete justice; the impugned order does not cause any prejudice to the petitioner, therefore, it may be sustained. Reliance has been placed on Muhammad Azam v. Muhammad lqbal and others (PLD, 1984 SC 95), The State v. Muhammad Yaqoob (2001 SCM R 308) and Shahbaz Masih v. The State (2007 SCM R 1631).
5. Learned Deputy Prosecutor General Punjab found the impugned order reasonably good and defended it emphatically, but not omitted to submit that recording testimonies of a couple of class fellows of Wing Commander Ghulam Rasool would not make any sense.
6. I have heard the learned counsel for the parties at length and also gone through the impugned order of the learned trial court.
7. To appreciate the issues raised and the arguments made, it would be essentially good to keep in view the scope of section 540, Cr.P.C., which empowers court of law to examine anyone as a witness, which, in its wisdom, should necessarily be recorded for a just decision of the case. This provision of the Code reads as under:-- "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 re- 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."
A minute study of aforementioned provision reveals that it imparts wide-ranging powers to the court to record any witness at any stage of the trial, so as to correctly assess the situation and make an impeccable decision on the strength of material produced. It would assist the court, rather in certain situations impose a duty on it to summon witnesses, who could not otherwise be brought before the court. It is not compulsorily the stage, when a court should exercise its judicial prowess to summon any person for his examination, rather such an evaluation can be made by the court even before the pronouncement of final verdict in a case. The crucial point not to be overlooked is that examination of such a summoned person should be necessary for reaching just decision of the case. What has to be remembered is that the court, seized with the issue, should formulate a correct opinion and give unexceptionable verdict. This section is divided into two parts, one giving discretionary power to the court and the other imposing an obligatory duty on it. In a similar situation, it has been held by the Indian Supreme Court in Jamatraj Kewalfi v. State of Maharashtra (AIR 1968 SC 178) as under:- "(10) Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of the three ways: (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken.
It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly."
It is not a thought, that the court should be bothered about, if an order made under section 540, Cr.P.C. would benefit a particular side and put the other one in a perilous situation, rather it is only the ends of justice that have to be met with under any circumstance. The stage of the trial for making any such order is immaterial. The court cannot summarily reject a plea for tendering additional evidence by holding that either the witness, sought to be recorded by the applicant, was not mentioned in the challan or it was a belated application or that it may fill up lacunae in the prosecution case, as the only point, the court would have its eyes glued to is, if examination of the said witness is essential for a just decision of the case. This section of the Code is a general provision of the law, which applies to all proceedings, inquiries of the trial under the Code and empowers magistrate to issue summons to any witness at any stage of such proceedings, inquiry or trial. It may, however, be kept in view the discretion exercised by the court should be judicious, rather than obliging to anyone. The section is not limited only to the benefit of the accused or the prosecution, but it is merely the ends of justice, to be kept in mind while allowing examination of a person or incumbency of the evidence adduced. It has been held by the Hon'ble Supreme Court of Pakistan in Nawabzada Shah Zain Bugti and others v. The State, reported as PLD 2013 SC 160, that "the Court has also to keep in mind that in trying a case it has to find out the truth to render a judgment in accord with canons of justice. If it finds that the investigation is defective, it cannot just sit idle as a timorous soul and has to exercise all the enabling provisions under the law including section 540, Cr.P.C. to discern the truth. For the purpose of this provision, the Court even without any formal application from prosecution or accused, can summon any person as witness or examine any person in attendance though not summoned as a witness or recall and re- examine any person already examined."
The apex court referred to Ansar Mehmood v. Abdul Khaliq (2011 SCM R 713) in the afore-noted judgment (PLD 2013 SC 160), reminding it, of course, that the judgment of the High Court was reversed and that of the trial court restored, which had allowed examination of additional evidence in terms of section 540, Cr.P.C. and commented on the ambit of section 540, Cr.P.C. in terms as follows:-- "5. Bare reading of section 540, Cr. P. C. transpires that where an evidence is essential for just decision of the case, it is obligatory upon the Court to allow its production and examination.
Examining the law on the subject, reference can be had to Muhammad Murad Abro v. The State through A.G. Balochistan (2004 SCM R 966), wherein it was held that provision of section 540, Cr.P.C., is to enable the Court to go at the truth of the matter, so as to come to a proper conclusion.
In the case under trial, it is obligatory to summon a person whose evidence is essential for just decision of the case. Similar view was taken in Painda Gull and another v. The State and another (1987 SCM R 886), with addition that the Court has widest powers under section 540, Cr. P. C. and can summon a witness for examination at any stage of the case. However, while exercising discretion it must guard itself against the exploitation of this power by a litigant party and keep in view the guiding principle, what the ends of justice demand. Cases titled, as Dildar v. State through Pakistan Narcotics Board, Quetta (PLD 2001 Supreme Court 384) and The State v. Muhammad Yaqoob (2001 SCM R 308), lay down guide."
Where any evidence is essential for just decision of the case, it is obligatory upon the court to allow its production and examination. Reference in this regard can be had to Muhammad Murad Abro v.
The State through A.G. Baluchistan, reported as 2004 SCM R 966, wherein it has been held that provision of section 540, Cr.P.C. merely enables the court to reach but the truth, so as to come to an unmistaken conclusion. In any under-trial case, it is obligatory to summon a person, whose evidence is essential for just decision of the case. It has similarly been viewed in Painda Gull and another v. The State and another (1987 SCM R 886) with the addition that the court has widest powers under section 540, Cr.P.C. to summon a witness for examination at any stage of the case. It may, however, guard itself against possible exploitation of this power by a litigant party and keep in mind the guiding principle as to what the ends of justice demanded. It has been observed in The State v. Muhammad Yaqoob and others (2001 SCM R 308) as under:-- "It is thus manifest that calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose but it is the duty of the Court to do complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object. It is salutary principle of judicial proceedings in criminal cases to find out the truth and to arrive at a correct conclusion and to see that an innocent person is not punished merely because of certain technical omission on his part or on the part of the Court. It is correct that every criminal case has its own facts and, therefore, no hard and fast rule criteria for general application can be laid down in this respect but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of the section 540, Cr. P. C., it is obligatory on the Court to examine such a witness ignoring technical/formal objection in this respect as to do justice and to avoid miscarriage of justice."
In the case of Karam Din v. Abdul Aziz (PLJ 2004 SC 642), it was held that:-- "Section 540 of the Code of Criminal Procedure, 1898 empowers the trial Court to call or recall any witness at any stage of the trial if his testimony was considered relevant and necessary to reach truth. Keeping in view the circumstances of the case, we disagree with the view of learned judge of the High Court that trial Court, in summoning and examining the Patwari (C. W. 1) and Gardawar (C. W. 2) as Court Witnesses had filled the lacunae of the prosecution case. We are of the view, that their statements were not only relevant but necessary to decide the controversy.
Section 540, Cr.P.C., clearly enabled the trial Court to adopt such a course."
8. The material allowed to be produced, as shown at serial No,1 of the application and witnesses to be examinee may not wholly/all be relevant and essential for just decision of the case. The inquiry report formulated by the Pakistan Air Force may not matter much, as Wing Commander Ghulam Rasool has already been examined by the learned trial court as P.W.1 and he in his testimony has touched almost every aspect of his education and qualifications. His class fellows, Professor Muhammad Younas and Muhammad Naseer Ahmad, who have been allowed to be summoned and examined may not exhilarate the respondent's case meaningfully nor their examination looked essential for just decision of the case, as evidence available on the record may not be found insufficient by the learned trial court to formulate any definite opinion as to genuineness or otherwise of the matriculation certificate in issue. It is, however, the District Registrar, NADRA, Faisalabad, whose statement along with the material hinted at in the application, may be of utmost importance so as to unearth the missing link, if any, and enable the learned trial court to adjudge true import of issuance of two National Identity Cards to the petitioner. Not to be forgotten, the issuance of two CNICs in the name of the petitioner makes an important part of the FIR story.
The evidence of District Registrar NADRA would not catch the petitioner by surprise in any manner, as it is already in his knowledge that he had got issued two National Identity Cards in his name with different signs of identification. Its relevance may, however, be probed into by the court after it would scrutinize the entire material to pronounce the final verdict. The evidence of the District Registrar NADRA may advance the ends of justice in real sense. His examination may make the difference.
9.The upshot of the foregoing discussion is that, the instant revision petition partly succeeds and partly fails, in mentioned terms. Order accordingly.
10.It is painfully noticed that the instant revision petition was admitted to regular hearing on 29.11.2010 and it was on the said day that the proceedings of the learned trial court were stayed. It is a pity that more than six years have elapsed since then. Can there be any cavil at the proposition that justice delayed is justice denied. But let us not be so pessimistic and hopefully see a day dawned on the other side of the tunnel. It may not be considered as too much, if the learned trial court is directed to conclude remainder of the petitioner's trial within one month from the date of communication of this order.
11.Let a copy of this order be transmitted to the learned trial court through some swift means for necessary information and compliance.