ROZI KHAN BARRECH, J.---The petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer:- "It is, therefore, respectfully prayed that keeping in view the above made humble submissions, the orders herein impugned dated 19.12.2019 and 29.06.2020 passed by the trial Court and revisional Court respectively may kindly to b set aside and the application under section 540, Cr. P. C., may kindly be dismissed, in the interest of justice, equity and fair play . '
Any other relief which- this Hon'ble Court deems fit and appropriate in the circumstances of the case may also be awarded, in the interest of justice, equity and fair play".
2. Consciously the facts for disposal of the instant petition are that FIR No.01 of 2019 dated 18.03.2019 was registered at Levies Station Khawas District Ziarat by one Faiz Muhammad against the petitioner and other accused with the allegation that on 17.03.2019 the accused persons attacked upon complainant's party , caused them injuries and also damages their borings.
3. After completion of investigation challan was submitted before the learned Judicial Magistrate, Ziarat, (hereinafter "the trial Court "). Charge was framed against the accused/petitioner and other accused to which they did not plead guilty and claimed trial. During trial, the prosecution produced six (06) witnesses. When the case was fixed for further prosecution evidence, the complainant filed an application under section 540, Cr.P.C., for examine of the proposed witnesses namely Khyal Muhammad, Muhammad Javid, Dost Muhammad and Muhammad Tahir as a prosecution witnesses.
4. After hearing of arguments of learned counsel for the parties, the trial Court accepted the application under section 540 Cr .P.C., vide order dated 19.12.2019.
5. Feeling aggrieved from the order dated 19.12.2019 the accused/ petitioner filed Criminal Revision Petition No.01 of 2019 under section 439-A, Cr.P.C., before the learned Additional Sessions Judge, Ziarat, (hereinafter "the Revisional Court") and the same was dismissed vide order dated 29.06.2020. Hence this petition.
6. We have heard the learned counsel for the petitioner , Assistant Attorney General-I as well as Additional Prosecutor General and have gone through the available record with their able assistance.
7. Before dilating upon the discretion of the trial Court under section 540, Cr.P.C., we would like to refer first to section 265-F , Cr.P.C., particularly , its subsection (2), which is very much relevant keeping in view the nature of the controversy .
"265-F Evidence for prosecution:---(1) If the accused does not plead guilty or the 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 that 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) ..................................
(4) to (6)...................................
(7) If the accused or any one or several accused, after entering on his defence, 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".
8. Subsection (1) of section 265-(F), Cr.P.C., as mentioned hereinabove, has made it mandatory upon the court to take all such evidence as may be produced in support of the prosecution and as such, A there is no any restriction on the prosecution to produce evidence of its choice or to apply for permission of the court while subsection (2) of section 265(F), Cr.P.C. would be invoked if a person remained acquainted with the facts of the case is desired to be summoned through Courts, who was not produced in the first instance, by the prosecution, under subsection (1) of section 265(F), Cr.P.C., which shall be subject to grant of permission by the Court. In view of subsection (3) of section 265(F), Cr.P.C., the witness mentioned in subsection (2) ibid may be refused by the court to summon any such witness, if it is of opinion that such witness is being called for purpose of vexation of delay B or defeating the ends of justice. But the court has given no choice to refuse to examine any witness produced by prosecution, in view of subsection (1) of section 265(F), Cr .P.C.
Section 265-F , Cr.P.C. caters for such situation where the Court may ascertain from complainant the name of any person likely to be acquainted with the facts of the case and to be able to give evidence for prosecution. This section does not provide specifically that only those witnesses can be examined whose statements have been recorded under section 161, Cr.P.C. or their names have been mentioned in the challan in column of witnesses.
The intent of the legislature is very much clear from the language of the entire section that the Court can examine any person who is acquainted with the facts of the case, therefore, the Court is not bound to record the statements of only those witnesses who are listed in the calendar of witnesses only, but in order to arrive at a just conclusion, the Court can call any person likely to be acquainted with the facts of the case after ascertaining it from the public prosecutor or the complainant subject to the general provisions that summoning of any such witness does not cause delay or defeat the ends of justice. It would be the second option of the Court as to what extent it consider or rely on the statement of such witness.
9. Similarly , under section 540, Cr.P.C. the Court can summon a material witness even if his/her name does not appear in the column of witnesses of the challan, provided his/her evidence is deemed essential by the Trial Court for the right decision of the case.
10. There can be no dispute with the proposition that section 540, Cr.P.C. has two parts. The first part confers wide jurisdiction on the Court to 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. The second part places an obligation on the Court to summon and examine or recall or re-examine any such person if his evidence appears to be essential to a just decision of the case. In exercising discretion under the first part, the Court will have regard to the basic principles of a fair trial, which are well established. While under the second part, the Court has no discretion. The over-riding consideration over the second part is the duty of the Court to do justice. If the Court comes to the conclusion that the evidence of any person is essential to the just decision of the case, the evidence of that person must be made part of the record of the case in accordance with law. This legal proposition has been exhaustively explained/clarified in the case of Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95, therefore, reference to various portions of the judgment would be helpful. It has been observed at Page No.118 of the judgment, which is reproduced as under:- "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 Cour t 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. As has already been observed the evidence in question relating to Nikah was undoubtedly essential for the just decision of the case. In the circumstances of this case the failure of the learned trial Judge to act under the said part of section 540, Cr. P. C. has not only deprived the Appellate Courts of essential material for the just decision of the appeal, but has also occasioned miscarriage of justice."
The observation at page 120 of the said judgment reads:-- "The failure of the parties to produce sufficient evidence after introducing this subject should not have deterred the trial Court in performing the duty under the second part of section 540, Cr.P.C. The trial Court has, as discussed above failed to do so and therefore, on this account also the case merits remand for fresh trial."
To determine the fact that any part of evidence is being essential or otherwise, it would not be necessary for the 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 and infers from the material including that which is already available to the Court in any form, admitted evidenc e or material otherwise lying on the judicial and other files before it. This legal proposition has also been discussed exhaustively by the august Supreme Court of Pakistan in the case of The State v. Muhammad Yaqoob and others 2001 SCMR 308, wherein it has been observed as under:- "It is thus manifest that calling of additio nal 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 corre ct 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 or 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 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."
11. Taking the case in hand at the touchstone of the provisions of sections 265-F and 540, Cr.P.C., discussed above, the complainant alleged in his report that on 17.03.2019, Dost Muham mad, Muhammad Tahir, Khair Muhammad and Muhammad Javid (proposed witnesses) were doing work on their borings, meanwhile, the accused/petitioner and other co-accused persons armed with sticks and stones attacked upon them and caused damages to their borings. Medical certificate of the proposed witness Khair Muhammad is also attached with the petition according to which he received injuries.
12. All the above four proposed witnesses figured as eye-witnesses in the FIR but on the other hand, neither they have been cited as a witnesses in the calendar of the witness nor their statemen ts were recorded under section 161, Cr .P.C.
13. The non-availability of statement of a witness who had not E recorded its statement could not be considered to be a violation of the provision of section 265(C), Cr.P.C., and likewise the law does not place any embargo on examination of a person during course of trial, either in favour of prosecution or accused, who had not recorded his statement under section. 161, Cr .P.C.
14. A person though well cited a witness in the FIR but his statement was not recorded there under section 161, Cr.P.C. could not be equated with a person who was neither cited as a witness nor his statement was recorded during course of investigation. However , if the prosecution or the Court in view of section 265(F)(2), Cr.P.C., desires to produce a person, not already cited as a witness, in calendar of witnesses, then the permission, in this regard from the trial court become necessary .
In the case in hand, the above witnesses are necessary witnesses, their names figured in the FIRs. Reliance is placed in the case titled as Shah Zain Bugti and others v. The State PLD 2013 Supreme Court 160 which reads as under:- "A perusal of the material placed before the Court during trial including the FIR would indicate that the case of the prosecution was that a joint team (comprising of officials of Frontier Constabulary and police) was formed which intercepted the convoy from which arms and ammunition mentioned in the FIR were allegedly recovered. That being "so, the examination of officers who according to prosecution, were part of the said joint team, was essential for a just decision of the case. Moreso when the DSP who was an eye-witness and partly investigated the case had died during trial. In the afore-referred circumstances, the impugned judgment insofar as it allowed the prosecution to produce additional evidence is in accord with the mandate of section 540, Cr. P.C. and the law declared to which reference has been made above".
In view of the above, and further , the reason given by the trial Court as well as revisional Court in the impugned orders, are quite justified as well within line of principles of criminal administration of justice and that of section 540 Cr.P.C., hence same is not open to be interfered.
In consequence to what has been discussed above, we find no merits in instant petition and same is accordingly dismissed.