ABDUL HAMEED BALOCH, J.---This petition has been directed against the order dated 31st December , 2019, passed by Sessions Judge, Loralai, whereby application under section 540, Cr.P.C. for calling record from C.M.H.
Quetta in respect of deceased Baz Muhammad and calling eye-witness namely Wali son of Mir Dad as Court Witnesses was dismissed.
2. Succinct facts of the case are that on 16th December , 2017, the complainant Muhammad Ghazali got registered FIR No.21 of 2017, under sections 302, 324, 147, 148, 149 Pakistan Penal Code (P.P.C.) with Levies Thana Sinjavi, against the petitions and others in respect of murder of Hail Sultan Muhammad and Moulvi Baz Muhammad and injuring Muhammad Ayub and Aminullah.
3. The record depicts that in respect of same incident another FIR bearing No. 22 of 2017, was also registered by Bismillah. The accused in FIR No. 22 of 2017 filed Criminal Miscellaneous Quashment Petition No. 108 of 2019, which was accepted by this court vide order dated 29th March, 2019. The relevant para is re-produced for ready reference: "5. In view of what has been discussed above, the petition filed by the petitioner Aminullah son of Baz Muhammad for quashment of FIR No. 22/2017, dated 17th December , 2017 registered at Levies Station Sinjavi, District Ziarat, is allowed ; the FIR No. 22/2017, dated 17th December , 2017 of Levies Station Sinjavi, District Ziarat and proceedings thereto are hereby quashed. However , version of the complainant Bismillah Jan son of Ghulam Farooq along with witnesses must be brought on record of the FIR No. 21/2017 dated 16th December 2017, registered at Levies Station Sinjavi, District Ziarat. Order accordingly ."
4. The record transpires that in FIR No. 21 of 2017, the learned trial court recorded statements of prosecution witnesses and thereafter recorded statements of petitioners under section 342, Cr .P.C. were recorded.
5. The record reveals that due to non-compliance of order of this Court in Criminal Miscellaneous Quashment Petition No. 108 of 2019, the petitioners filed Criminal Revision Petition No. 58 of 2019 and this Court vide order dated 17th May, 2019 suspended the proceedings before the trial court. The relevant para is reproduced for ready reference: "4. C.M.A. No. 173 of 2019 . Notice. In the meanwhile proceedings before the learned Sessions Judge, Loralai, are hereby suspended and he is restrained to pronounce judgment till disposal of this petition."
6. Despite restraining order passed by this Court the trial court pronounced the judgment on 18th May, 2019, whereby the petitioners were convicted, against which the petitioners filed Criminal Appeal No. 171 of 2019 before this Court, which was accepted and matter was remanded to the trial court.
7. The record transpires that while passing order in Criminal Revision Petition No. 58 of 20.19, this Court directed that application under section 540, Cr.P.C. would be decided by the trial court. The petitioner sought for calling Medical Certificate of deceased Baz Muhammad from CMA Quetta and for calling one alleged eye-witness Wali Muhammad as Court Witnesses. The trial court heard arguments of the parties on the application under section 540, Cr.P.C. and vide order dated 13th December , 2019 dismissed the application. The relevant portion is reproduced for ready reference: ".......................Thus, the application in hand is at so belated stage, which is as such rejected accordingly . The assessment made herein-to-fore are tentative in nature, which shall not affect the merits of the case.............."
8. The learned counsel for the petitioners contended that the order of the trial court is sheer violation of law. For sake of justice the court can call any person as court witness to give testimony at any stage of proceedings. Mere delay in filing of application did not curtai l the powers of the court under section 540, Cr.P.C. Reliance was placed on the case of The State v . Muhammad Yaqoob 2001 SCMR 308 .
9. On the other hand the learned coun sel for the complainant stated that the order of the trial court is well reasoned. The petitioners in their statements under section 342, Cr.P.C. stated that they do not want to produce witnesses. Even the death of deceased Baz Muhammad was not disputed during cross-examination of PW-8 Dr. Noor Baloch. The application was afterthought. The trial court rightly rejected the application. The State Counsel supported the order of the trial court.
10. Heard learned counsel for the parties and State Counsel and also perused the record with their able assistance. Before dilating upon the application under section 540, Cr.P.C. it would be appropriate to reproduce section 540, Cr .P.C: "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 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."
11. From the above referred section it is crystal clear that section 540, Cr.P.C. is consisting upon two parts, in first part the word 'may' used, which is discre tionary in nature, while in second part the word 'Shall' is used, which is mandatory . The purpose of section 540, Cr.P.C. in criminal case is to find out truth in order to arrive at a just and correct decision. The purpose of section 540, Cr.P.C. is to empower the court to dig out the truth during the trial, so that no innocent be punished. The purpose of section 540, Cr.P.C. is not to fill up the lacuna left by the defence or prosecution. Section 540, Cr.P.C. empowers the court to summon any person or examine any person or re-call, re- examine any person at any stage of inquiry , trial or proceeding. It does not provide any time period, stage of proceeding for summoning/recalling any witness. The concept of section 540, Cr.P.C. is to empower the court to do complete justice. Mere delay is not hindrance in complete justice. Reliance is placed on the case of Muhammad Azam v . Muhammad Iqbal PLD 1984 SC 95 , wherein it was held: "Sometimes apprehension is expressed that any action by the trial Court under section 540, Criminal Procedure Code would amount to filling the gaps and omissions in the version or evidence of one or the other party . It may straightaway be observed that in so far as the second part of section 54 goes, it does not admit any such qualification. Instead, even if the action thereunder is of the type mentioned, the Court shall act in accordance with the dictates of the law. In fact the Court has no discretion in this behalf. It is obligatory on it to admit evidence thereunder if it is essential for the just decision of the case. It was held in Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf (PLD 1963 SC 51) that even if a witness who is ultimately to be produced by the accused in his defence is examined by the trial Court as a Court witness at an earlier stage then notwithstanding the fact that the defence would have an extra advantage of putting leading questions to the witness when standing in the witness- box as a Court witness, it would not effect the power of the Court (under section 540, Cr.P.C. to summon and examine the witness if of course, as was observed in that case, it was in the interest of justice and thus presumably essential for the just decision of the case. Again in The State v. Maulvi Muhammad Jamil and others (PLD 1965 SC 681) when examining the effect of change in the criminal procedure, regarding right to further cross- examination, during the transitional period, this Court held that even though it would be for the benefit of the defence, the trial Court' could avoid any prejudice to the defence by acting under section 540, Cr.P.C. After holding so a very weighty observation was made which needs to be reproduced: "This section empowers a Court at any stage of inquiry , trial or any other proceed ing under the Code, to summon any person as a witness, or recall and re-examine any person already examined, and it is obligatory for the Court to summon and examine or recall and re-examine any such person, if his evidence appears to it essential for the just decision of the case."
12. The court cannot summarily dismiss the application of the parties under section 540, Cr.P.C. holding that the application has been filed at belated stage or to fill up the lacuna. The court has to find out whether examination of the referred witnesses is essential for just decision of the case or not. Be that it may, mere delay is no ground for rejection of the application. The application filed by the petitioner for calling the record of deceased Baz Muhammad from CMH Quetta. The fact was also admitted by PW-8 Dr. Noor that he examined Baz Muhammad.
The prosecution did not bother to collect Medical Certificate of Baz Muhammad from CMH Quetta where he died.
For just decision of the case it is necessary that the medical report of deceased Baz Muhammad should be brought on record.
13. Section 540, Cr.P.C. empowers the court to summon ' any person without application from either side that his testimony is essential for just conclusion of the case. The petitioners prayed for calling the Medical Report of deceased Baz Muhammad and calling injured Wali Muhammad as court witnesses . The Honorable Supreme Court in case State v . Muhammad Yaqoob 2001 SCMR 308 held: "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."
In view of the above the petition is accepted. The order dated 31st December , 2019 passed by Sessions Judge, Loralai is set aside. The application filed by the petitioners under section 540, Cr.P.C. is allowed. The trial court is directed to call the medical record of deceased Baz Muhammad from CMH Quetta and also call eye-witness Wali son of Mir Dil as Court Witnesses. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.