M. TABASSUM AFTAB ALVI, C.J.-The captioned revision petition has been directed against the impugned order of Additional District Court of Criminal Jurisdiction, Muzaffarabad, dated 16th October, 2017, whereby, an application moved under section 540, Cr.P.C., by petitioner-accused, for summoning Court witnesses, was dismissed.
2. The facts leading to the instant revision petition are that Ulfat Hussain Shah, complainant- respondent No,2, lodged a report at Police Station, Kahori, against (i) Shair Ali Shah, (ii) Sheryar Ali Shah, (iii) Sheraz Ali Shah and (iv) Mst. Shazia Bibi; on 06th September, 2016, at 12:20 a.m. He alleged therein that on 05th September, 2016, he was out of home, when his brother, Syed Yasir Ali Shah, informed him regarding a quarrel in his home at 'about 11:15 pm. On the aforesaid information, he arrived at spot and saw that Sheraz Ali Shah, accused, had caught hold of Nasir Hussain Shah, whereas Syed Shair Ali Shah, accused, holding Syed Jaffar Hussain Shah, was giving beating to him. Accused, Sheryar Ali Shah, inflicted first dagger/knife blow at right side chest of Nasir Hussain Shah, who sustained injury, fell down on the floor and soaked in blood. Thereafter, said accused, Sheryar Ali Shah, inflicted blow of dagger/knife to Jaffar Shah, which hit on right side of back abdomen, who also fell down. In the occurrence, Nasir Hussain Shah, succumbed to the injuries at spot, whereas Jaffar Shah, received serious injuries. The other accused-persons, Mst. Shazia Bibi and Shair All Shah, were instigating the aforesaid accused. The motive beyond the occurrence was that his father, Shair Ali Shah, had two wives, on account of which, complainant's step-mother and step-brothers, namely, Mst. Shazia, Sheryar Ali Shah and Sheraz Ali Shah, had grudge and rancor.
The occurrence, besides complainant, was witnessed by Azam Ali Shah, Yasir Hussain Shah, Mst.
Kalsoom Bibi, Mst. Irram Bibi and other inmates of house. As per the aforesaid report, a case bearing FIR No,74/2016,-was registered in offences under sections 302, 324, 34 and 109, A.P.C., against petitioner-accused and proforma-respondents, at Police Station, Kahori, on 06th September, 2016. After necessary investigation, a challan was submitted before concerned District Criminal Court, whereby petitioner-accused along with proforma-respondents, is facing trial.
During trial, evidence of one prosecution witness, out of 17 P.Ws, was recorded. Meanwhile, petitioner-accused, moved an application under section 540, Cr.P.C. for summoning defense witnesses, namely, (i) Mast Ali Shah, (ii) Farman Ali Shah, (iii) Mehl. Ali Shah and (iv) Mukhtar Ali Shah, as Court witnesses, which was dismissed, vide the impugned order dated 16th October, 2017; hence, the instant / revision petition.
3. Syed Hazoor Imam Kazmi, the learned Counsel for petitioner-accused, submitted with vehemence that section 540, Cr.P.C. clearly contains a phrase "at any stage", therefore, an application under section 540, Cr.P.C. can be moved at any stage of proceedings or trial and if application moved under section 540, Cr.P.C, is allowed after recording prosecution evidence, then the aforesaid section would become ineffective; hence, the trial Court wrongly dismissed the application moved for summoning Court witnesses. He further pointed out that during trial of one year only evidence of a single prosecution witness was recorded, in this manner, it will take many years to conclude trial; therefore, an application under section 540, Cr.P.C. was moved to summon Court witnesses, before recording prosecution evidence, in order to arrive at just decision of the case, however, the Court below failed to consider this aspect of the matter, therefore, the impugned order is liable to be set-aside. He finally craved for acceptance of the instant revision petition and cited the following case law in support of his arguments:- i. Karam Din v. Abdul Aziz and 11 others [PLJ 2004 SC (Appellate Jurisdiction) 642]. ii. Muhammad Yaseen alias Mithoo and another v. State [2010 PCr.LJ 1253]. iii. Ansar Mahmood v. Abdul Khaliq and another [2011 SCM R 713].
4. Conversely, Mr. Tahir Aziz Khan, the learned Counsel for complainant-respondent No, 2, strenuously contended that under section 265-F, Cr.P.C. a procedure has been provided for recording prosecution evidence and then defence evidence; therefore, before recording prosecution evidence, an application moved under section 540, Cr.P.C. for summoning Court witnesses, was not justified, which was rightly dismissed by the Court below. He, in support of his arguments, cited a case reported as Malik Naseer v. Wishno Mal and another [2014 PCr.LJ (Sindh)
1496] and finally craved for dismissal of the instant revision petition.
5. Mr. Akhlaq Hussain Kiani, the learned Additional Advocate General, appearing on behalf of State, supported arguments raised by the learned Counsel for complainant.
6. I have heard arguments of the learned Counsel for parties and gone through record as well as relevant law cited at Bar.
7. At the very outset, it would be pertinent to examine here the objective, import and powers of the Courts within the meaning of section 540, Cr.P.C., when legislatures have provided a mechanism for both prosecution and defense to bring their respective evidence including exhibiting of documents. It is suffice to observe that at the moment when Court takes cognizance of a criminal case, it becomes obligatory upon prosecution to prove charge against accused well within meaning of Article 117 of Qanun-e-Shahadat Order, .1984, because an accused enjoys status of innocent till he is found guilty by the Court on the basis of such discharge by prosecution and if accused takes a particular plea, then burden is upon accused to prove such a plea, within the meaning of Article 119 of Qanun-e-Shahadat Order, 1984. Now, the question arises that how and in what manner prosecution has to prove charge, and when accused has to cause dent in prosecution case by producing evidence? In order to secure answer of the aforesaid question, I would like to reproduce section 265-F, Cr.P.C., which reads as, under:- "265-F. Evidence for prosecution.
(1) If the accused does not plead guilty or he Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution; Provided the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
(2) The Court shall ascertain from the public prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it.
(3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation, or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing.
(4) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.
(5) If the accused puts in any written statement, the Court shall file it with the record.
(6) If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defense and produce his evidence.
(7) If the accused or any other of several accused, after entering on his defense, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing." (Underlying is mine for emphasizing)
8. A bare study of the above underlined subsection (1) leaves no ambiguity that legislatures in their wisdom, have made it mandatory by using the word "shall" which means that Court shall take all evidence as may be produced in support of prosecution. Likewise, in subsection (2) of the aforesaid section, the word "shall" is also used, which means that legislatures have made it mandatory for the Court to summon any person from the prosecution or the complainant, as the case may be, who is likely to be acquainted with the facts of the case and is able to give evidence for prosecution. These provisions make it crystal clear that it is the prosecution which has to produce evidence first, because burden is upon prosecution to prove its case. The provision of subsection (4) of Section 265-F, Cr.P.C. further explains that when examination of witnesses for prosecution and examination of accused are concluded, then accused shall be asked to adduce evidence. However, subsection (7) of the aforesaid section, after entering on defense of an accused, provides guarantee to him that he shall have the same right to examine defense witnesses and produce documents. The provisions of section 265-F, Cr.P.C. have provided a complete procedure for both prosecution and accused to examine witnesses and to produce documents, so, procedure is manifest that accused shall be asked to produce his evidence after conclusion of prosecution evidence. Therefore, application moved under section 540, Cr.P.C. for summoning Court witnesses cannot be allowed, and if petitioner-accused wants Court witnesses to be summoned, he has to wait till conclusion of prosecution evidence. The aforesaid view is fortified from a case reported as Malik Naseer v. Wishno Mal and another [2014 PCr.LJ (Sindh)
1496], wherein, at pages 1500 and 1501, it was observed as under:-- "The provision of Section 265-F of the Code has provided a complete procedure for both prosecution and the accused to examine the witnesses and to produce the document(s) and since the procedure has made it clear that accused shall be asked to adduced his evidence after conclusion of the prosecution evidence hence if the accused wants the Court to summon any person to give evidence or to produce any document he shall have to wait till conclusion of the prosecution evidence. Theorder of subsection(s) of section 265-F of the Code is so because one cannot be presumed to prove his innocence or deny a claim until the party alleging or claiming is provided an opportunity to establish their plea. This is the objective of provision of Aritcle 117 of the Qanun-eShahadat Order. Further, it is well-established principle of law that burden of proof is upon one who asserts certain fact/allegation, since it is now a well-established principle of law that if things are required to be done in a particular manner then the same have to be done in that manner or not at all."
9. As far, argument of Syed Hazoor Imam Kazmi, the learned Counsel for petitioner-accused that section 540, Cr.P.C. contains a phrase "at any stage", therefore, an application under section 540, Cr.P.C. can be moved at any stage of proceedings or trial and if application moved under section 540, Cr.P.C., is allowed after recording prosecution evidence, then the aforesaid letters of law would become redundant, is misconceived. The Section 540, Cr.P.C. speaks as under:--
540. Power to summon material witness or examine person 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 reexamine any person already examined; and the Court shall summon and examine or re-call and re- examine any such person if his evidence appears to it essential to the just decision of the case."
It is well settled principle of law that section 540, Cr.P.C. is intended to be wide and the Courts have full powers to summon and examine any person as a witness at any stage of trial or inquiry under the aforesaid section; however, such wide jurisdiction has been limited by the legislature with a deliberate user of phrase "if his evidence appears to it essential to the just decision, of the case". It is worthwhile to observe here that every word of the legislature has to be given its due meaning.
The limitations, so provided by the legislature, for exercising powers under section 540, Cr.P.C., are to be taken properly, for exercising powers. It shall be the material, which is legally brought before the Court, through which, the Court will decide whether evidence of a person and production of a document is essential for just decision of the case or otherwise; thus, the phrase "at any stage" should not be taken wrongly to compel the Courts to examine a witness without bringing such material on record which could lead the Courts to consider such examination of a witness, as essential for just decision of the case. It is important to observe that material is brought before the Courts through procedure so provided by the Code itself, however, section 540, Cr.P.C. restricts such powers and jurisdiction by a deliberate use of phrase "to the inquiry, trial or other proceedings under this Code"; however, in Shah Zain Bugti's case [PLD 2013 SC 160], it was clarified that it is the totality of material placed before the Court, through which, the Court will determine whether examination of the witness is essential for just decision of the case or otherwise. Thus, the jurisdiction and powers under section 540, Cr.P.C. could be exercised where the Court having taken into consideration the totality of material placed before it.
10. So far as authorities cited by the learned Counsel for petitioner-accused are concerned, suffice to observe here that no example was shown in these authorities that before recording prosecution evidence, defense was allowed to produce evidence or an application for summoning Court witnesses was allowed, which are quite distinguishable from the facts and circumstances of the instant case; thus, need not to be discussed in detail.
11. In light of above detailed discussion, it is held that petitioner-accused, moved an application under section 540, Cr.P.C, for summoning (i) Mast Ali Shah, (ii) Farman Ali Shah, (iii) Mehr Ali Shah and (iv) Mukhtar Ali Shah, as Court witnesses, at premature stage, because remedy is available to him to substantiate his version or produce the aforesaid D.Ws., by leading defense evidence, which stage is still to come, after recording prosecution evidence. Therefore, trial Court recorded the impugned order dated 16th October, 2017, in a proper and legal manner, which does not warrant any interference by this Court. Consequently, finding no substance in the instant revision petition, it