ABDUL MAALIK GADDI, J.---Through the instant Criminal Revision Application, the applicant / complainant, represented by Special Prosecutor ANF, has assailed the legality and propriety of the order dated 04.07.2018 passed by the learned Sessions Judge / Special Judge, CNS , Hyderabad, in Special Case No,33 of 2014, arising out of FIR No,06 of 2014 of Police Station ANF Hyderabad, whereby the learned Presiding Officer of the said Court dismissed the application filed by the State/ANF under Section 540, Cr.P.C. read with Article 133 of Qanun-e- Shahadat Order , 1984.
2. Briefly , the facts of the case as per FIR are that on 09.05.2014 at 1830 hours, Inspector Khalid Rasheed, SHO Police Station ANF Hyderabad, arrested accused Shoaib Baloch son of Muhammad Iqbal and Sadiq Ali Baloch son of Abdul Hameed and recovered three bags of charas, two bags containing 25/25 packets of charas of light brown colour and one bag containing 20 packets of charas, total 70 Packets, weighing 70 K.Gs. Such FIR was lodged against the accused persons at Police Station ANF Hyderabad and then submitted the challan before the competent Court of law for trial in accordance with law .
3. It is argued by the learned Counsel for the applicant that by way of filing an application under Section 540, Cr.P.C., the applicant sought for examination of Incharge Malkhana and the official who took the case property to chemical examiner , which was dismissed by the learned trial Court vide order 'dated 18.05.2018. Such order the applicant has impugned before this Court by way of instant criminal revision application. It is also contended by the learned Counsel for the applicant that examination of above said witnesses was essential to prove the case of prosecution, in view of law laid down by Honourable Supreme Court of Pakistan in case of Ikramullah and others v.
The State (2015 SCMR 1002 ) and the learned trial Court by dismissing the application of the applicant, has committed wrong, which could be made right by this Court by way of instant crimi nal revision application. He also contended that Section 540, Cr.P.C. gave wide powers to the Court to examine any witness at any stage of the trial to arrive at just decision of the case and where the Court found that investigation was defective, it could not sit idle and had to exercise all enabling provisions under the law including Section 540, Cr.P.C. to discern the truth. For purposes of Section 540, Cr.P.C., the Court even without any formal application from prosecution or accused, could summon any person as witness or examine any person in attendance as a witness or recall and re-examine any person already examined, but in this case the huge quantity of the charas was recovered from the possession of the accused and the learned trial Court while passing the impugned order did not take care of the cited case law and in doing so, the applicant has been seriously prejudiced. He, therefore, prays that the order of the trial Court may be set-aside and the revision application may be allowed.
4. Conversely , the learned Counsel for the accused has opposed the application and pointed out that there have been two rounds of trial in this case and leaving aside the first round in which conviction recorded by the trial Court was set-aside, even in the second round, after leading entire evidence to his satisfaction, the prosecution has closed the side on 14.12.2017 and himself filed such statement in writing, thus, at this stage there was no justification to call the proposed witnesses to fill-up the lacunas.
5. We have considered the above arguments and perused the record.
6. In order to appreciate the issue involved, it would be pertinent to keep in mind the scope of Section 540, which 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 no 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."
7. In case of Mukhtar Ali and 3 others v .The State (2000 PCr .LJ 372), this Court has held as under:-- ---S. 540---Summoning of material witness etc. ---Scope--Powers under S.540, Cr.P.C., must be exercised by the Court with care and cautious---Such powers cannot be used to advance the cause of prosecution or of defence and are only meant to advance the cause of justice and not to fill in the gaps or lacunas left by the parties to the proceedings .
8. The bare reading of above said sectio n of law shows that it gives wide powers to the Court to examine any person as a witness at any stage of trial. It enables the Courts to impose a duty on it to summon any person as a witness, who otherwise could not be brought before the Courts. The above section of law is consisting of two parts, one gives discretionary powers to the Courts and other imposes an obligation on it.
9. In case of Jamatraj Kewalfi Govani v.State of Mahar ashtra (AIR 1968 SC 178), while dealing with similar issue it was held that; "S(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".
10. In case of Ikramullah and others v.The State (2015 SCMR 1002 ), it was observed by the Honourable Supreme Court of Pakistan that the prosecution has failed to produce before learned trial Court the official, who took samples of charas to the Chemical Examiner to depose about the safe custody of the samples entrusted to him. Perhaps following the aforesaid law laid down by the Honourable Supreme Court of Pakistan, the applicant/prosecution filed an application under Section 540, Cr.P.C. before the trial Court to summon and examine the said witnesses to prove its case in its satisfaction. If accused claims fair trial then applicant / prosecution could equally be provided fair chance to prove its case to its satisfaction. It is settled by now, that the technicalities should be avoided by the Courts while dispensing with the justice to arrive at right conclusion. In these circumstances, learned trial Court ought not to have dismissed the application of the applicant/ prosecution under Section 540, Cr.P.C. to summon and examine its witnesses.
11. Here in this case, the case and claim of the prosecution is that the case property after the alleged incident was initially kept at Malkhana of the Police Station and then it was sent to the Chemical Examiner for its analysis, therefore, under the above mentioned facts and circumstances, we are of the considered view that the witnesses sought to be examined by the prosecution appears to be the material witnesses to be examined in order to arrive justice and proper decision of the case. During course of the arguments, the learned Counsel for the applicant / ANF has placed on record. certified true copy of the order passed by this Court in Criminal Revision Application No,D-18 of 2018, whereby this Court almost in identical circumstances allowed the said criminal revision application vide order dated 29.06.2018 and under these circumstances, this Divis ional Bench cannot be deviated from the law laid down in the said order .
12. In view of the above facts and circumstances, the impugned order dated 04.07.2018 could not be sustained and the same is hereby set-aside and consequently this criminal revision application is allowed. Learned trial Court is directed to summon and examine the above said witnesses. These are the reasons for our short order dated 03.09.2018 announced in open Court in earlier part of the day, whereby this criminal revision application was allowed.