' This Criminal Revision has been filed against the order of the learned Sessions Judge, Bahawalpur dated 13-10-1982 whereby during the trial of case under section 302 of the P. P. C. The application of the Public Prosecutor and the complainant for receiving certified copies of public documents in evidence has been rejected on the ground of delay and for the further reason that this will amount to allowing the prosecution to fill in lacuna in the evidence.
2. The brief facts of the case are that two persons namely, Ghulam Nabi and Ghulam Muhammad are being tried for the double murder of Mst. Zafroo and Munir Ahmad. The case of the prosecution in short is that the two accused Ghulam Nabi and Ghulam Muhammad who are real brothers inter se, had put to death the aforesaid two persons.
3. The trial Court has so far examined ten prosecution witnesses and one formal witness i,e, Patwari who prepared the site plan remains to be examined. The application for receiving in evidence certified copies of public documents was made on 6-10-1980 after the statement of the complainant, father of Mst. Zafroo namely Abdul Ghafoor was concluded on this day. It is the case of the petitioner that from a statement of the complainant it transpired that Mst. Zafroo, deceased had contracted marriage with Munir, deceased, without taking the father into confidence. This was done after she had obtained decree for dissolution of marriage with Ghulam Muhammad accused from the Court of Judge, Family Court, Bahawalpur. An ex parte decree was passed. It further transpired from the evidence that the accused Ghulam Nabi then moved application before the Judge, Family Court for setting aside the ex parte decree. These incidents are prior to the occurrence. It is thereby intended to he shown that the accused had the knowledge of the deceased Ms t. Zafroo having obtained a divorce from a competent Court and in respect thereof the accused Ghulam Nabi was taking proceedings to have the decree set aside. This, according to the learned counsel, is discovery of a material fact which has a bearing on the trial.
4. The learned counsel appearing in support of this revision petition has argued that the provisions of section 540, Cr. P. C. Are designed to confer jurisdiction on the Criminal Courts for the purpose of discovering the truth and for receiving in evidence matters and materials which may be necessary in order to ensure that justice is done. He states that there is no limitation imposed by the statute itself and the powers of widest amplitude have been conferred on the courts to receive relevant evidence where the ends of justice may so demand. He further submits that the approach of the learned Sessions Judge that tendering in evidence certified copies of public documents is intended to fill in the lacuna or lapses in the prosecution case is not well-founded. He also submits that mere delay in the circumstances of this case would not itself create an ouster or hurdle in the way of the Court to receive a document which has a material bearing on the trial. It is also contended that this process will not involve any amount of delay because being certified copies of public documents even the Public Prosecutor can tender them in evidence under section 74 of the Evidence Act. The counsel for the State Mr. Nazir Ahmad Bhatti, Advocate, also supports the submissions of the learned counsel for the complainant.
5. In reply the learned counsel for the accused-respondents argues that these facts do not find mention in the F. I. R. Version of the case. According to him, this exercise is designed to make improvements in the case of the prosecution and that the discretion has been properly exercised by the learned Sessions Judge and this calls for no interference. The learned counsel further submits that it is quite possible that these documents may be fabricated and forged.
6. The learned counsel for the petitioner placed strong reliance on the case reported as Muhammad Samar Naseem v. The State (1). In the precedent cited, the facts were that during the criminal trial at the defence stage it was discovered that certain necessary relevant documents having a bearing on the case had been discovered which were required to be put to the witness whose statement had already been recorded. Accordingly, the Court recalled the witness and he was confronted with the documentary evidence. The decision cited is an authority for the proposition that where production of a certain witness is essential to the just decision of the case, the Court should exercise its jurisdiction under section 540, Cr. P. C. And examine him {{FOOT NOTE}}
(1) 1973 P Cr. L J 911 {{FOOT NOTE}} ' as a court witness. It was further held that case was fit one for examining further witnesses who may be called along with the relevant record notwithstanding the fact that the accused petitioner had an opportunity of producing them as defence witnesses. The learned Judge Hon'ble Mr. Justice Aslam Riaz Hussain (as the Hon'ble Judge then was) summed up the matter in the following words:-- "The reason being that the main purpose of the entire judicial proceedings is to find out the truth, to arrive at a correct decision and to see that an innocent person is not punished merely because of certain technical omissions on his part or on the part of his counsel."
7. This statement of law though made in the context of a case of an accused, will equally apply in so far as the case of the prosecution is concerned. I respectfully subscribe to the view that the main purpose of the entire judicial proceedings is to find out the truth, to arrive at a correct decision. The evidentiary value to be attached to the documentary evidence sought to be produced is the function of the trial Court. In any view of the matter, I am clearly of the opinion that the learned Sessions Judge was not right in taking the view that tendering in evidence of these documents which have direct bearing and are necessary for proper decision will amount to an unfair advantage to fill in lacuna in the prosecution evidence. The discovery having been made as a result of the disclosure made at the trial by- the complainant, the Public Prosecutor was justified in praying fo permission to produce the relevant copies in evidence.
8. In so far as the apprehension of the learned counsel for the respondents regarding these documents being forged or fabricated is concerned, needless to overemphasise that a proper opportunity will be provided and accused will have the right to test the veracity or genuineness of these, documents and there is no question of any prejudice being caused to them on that score. I would, however, like to add as a measure of abundant caution that should a challenge be thrown the accused shall be provided full opportunity to test the veracity of these documents being tendered in' evidence.
9. I am fortified in my view by reference to a Division Bench decision from Karachi jurisdiction reported as Muhammad Ashiq v. The Martial Law Administrator, Zone 'C' (1) wherein it has been laid down that by virtue of section 540 of the Criminal Procedure Code any court may at any stage of an enquiry, trial or proceedings under the Code, exercise the power to summon any person as a witness, or examine any person in attendance though not summoned as a witness and including a person outside the list of challan. I may advantageously also refer to the decision of the Federal Shariat Court in Falak Sher v. The State (2) delivered by the Chief Justice of that court Hon'ble Mr. Justice Aftab Hussain, for the proposition that by virtue of section 540, Cr. P. C. Evidence may be received at any stage of the enquiry, trial or proceedings or even in a bail matter when examination of a witness is essential for the proper decision of the case. One of the factors which has been listed favouring exercise of this power is that it has at least one additional advantage and that is to expose to the prosecution the defects in the enquiry and make them discern the need for further enquiry and for collection of better evidence which unfortunately was lost sight of in that case. A further weighty observation is to the effect that the administration of justice cannot be circumscribed by at least unprescribed formalities nor can justice be sacrificed to them. {{FOOT NOTE}}
(1) 1980 P Cr. L J 97 (2) PLD 1982 F SC 240 {{FOOT NOTE}}
10. I would next refer to the decision of this court reported as Bashir alias Matto v. The State (1) given by Hon'ble Mr. Justice Muhammad Afzal Zullah (as the Hon'ble Judge then wasp. In this precedent case, a quashment petition had been filed on the ground that the Magistrate once having closed the prosecution evidence was left with no jurisdiction to give any other opportunity to the prosecution to produce evidence and, therefore, his order to that effect was without jurisdiction. It was contended before the High Court that being so the statement of the complainant that had already been recorded did not connect the petitioner with the crime and that the case was fit one for quashment. It was noticed that the statement of Inayat Ullah P. W_ complainant in the case showed that the fact of threat of injury to the daughter of the complainant was admitted. The defence plea of accident appeared to have been raised in the cross-examination. The said Inayat was cross-examined at some length. During this cross-examination it transpired that his daughter who was the main eye-witness in the case suffered injuries allegedly at the hands of the petitioner-accused. She was admitted in the hospital but the petitioner started visiting there and put her under fear as a result of which the injured and her mother ran away from the hospital. The High Court thus held that it appeared that the order passed by the learned Magistrate closing the prosecution evidence was not justified and that being so, his order permitting the prosecution to produce the remaining evidence constituted no illegality. In the instant case, however, there is no such order passed closing the prosecution evidence and at least one more prosecution witness still remains to be examined.
11. On a perusal of these precedents it does appear that the weight of pronouncements of the superior Courts is in favour of the proposition that the court ought to make maximum endeavour for discovering the truth for arriving at a just decision. To achieve this avowed objective in search for truth, the Court cannot be construed to be leaning in favour of either side or against any one.
Otherwise, in the absence of true state of facts coming to the knowledge of the court, it is difficult to conceive, how the decision would be correct or just. This power to secure ends of justice, therefore, must be exercised where the purposes enumerated above are designed to be achieved unless some principle of law creates an impediment or circumstances of a given case lead the court to the irresistible inference that the effect of such an exercise of power would bring about opposite results like miscarriage of justice. The weight to be attached to such relevant and material evidence received for just decision of the case, is for the trial Court to determine at the conclusion of the trial.
' 1 would, accordingly hold that this is a fit case calling for my, interference and direction to the learned Sessions Judge to allow an opportunity to the prosecution to tender these documents in evidence. The accused shall of course have the opportunity to test their veracity or to raise whatever pleas may be available to them under the law.
12. For reasons stated above, the revision petition is accepted. {{FOOT NOTE}}
(1) 1976 P Cr. L J 652 {{FOOT NOTE}}