This is a revision petition by Khushi Muhammad against the order of Mr. Gul Hassan Bokhari, Magistrate Ist Class, Sheikhupura, dated 9th January 1970, whereby he summoned Sub-Inspector Mirza Izat Beg, Khan Ijaz Ahmad Khan, Magistrate Ist Class, Gujranwala, Mr. Iftikhar Ahmad, Assistant Commissioner, Muzaffargarh, Mr. Abdul Shakoor Qureshi, Section 30 Magistrate, Sheikhupura, and Inspector Police Mr. Ghulam Muhammad Niazi as Court witnesses under section 540 of the Code of Criminal Procedure, at the instance of the accused, in a case under section 302 read with section 149 and section 148 of the Pakistan Penal Code.
2. Respondents Nos, 1 to 7 were sent up for the murder of one Mahboob Ali and are facing commitment proceedings in the Court of Mr. Gul Hassan Bokhari. First information report in the case was lodged by the petitioner. The prosecution has already examined its witnesses with the exception of two police officers, namely, Mirza Izat Beg and Mr. Ghulam Muhammad Niazi and the Forensic Expert.
3. On 9th January 1970, Mirza Izat Beg was present, but his statement was not recorded, for the defence wanted the daily diary of the police station to cross-examine him. The prosecution evidence, however, was not yet over on that very day. The accused made an application before the Magistrate for the summoning of the Court witnesses, who were summoned as indicated above.
4. The order of the learned Magistrate has been challenged on grounds inter alia:-
(a) That though he had wide powers under section 540 of the Code of Criminal Procedure to summon any person at any stage of the inquiry or trial, his order must show on the face of it, that the evidence of the said person was essential to the just decision of the case. The impugned order gave no reasons whatsoever, as to why, the request of the accused had been acceded to.
(b) That the summoning of the Court witnesses at the instance of the accused, without assigning reasons, when the prosecution evidence was still being recorded, would adversely affect the prosecution case.
(c) That the accused had a right to give a list of the defence witnesses whom they intended to examine at the trial and the Magistrate had a discretion to summon and examine any one of them under section 212 of the Code of Criminal Procedure.
5. Learned counsel for the petitioners and respondents Nos, 1 to 7 have been heard. The aforesaid objections shall be disposed of together as these are inter-connected.
6. Learned counsel for the petitioner contended, that the impugned order was not a speaking order. No reason had been assigned, as to why, the request of the accused had been acceded to, especially, when the prosecution evidence had not yet been concluded. Two of the witnesses, who had been summoned as Court witnesses, had to appear as prosecution witnesses. In support of his assertion, learned counsel for the petitioner referred to section 540 of the Code of Criminal Procedure and especially the concluding words, which are to the effect, that Court shall summon any witness, at any stage of the inquiry, but it, at the same time provides, that he shall be so summoned "if his evidence appears to it essential to the just decision of the case ". A perusal of the impugned order reveals, that the learned Magistrate did not apply his mind to this aspect of the matter and had on bare request of the accused, summoned the Magistrates from Gujranwala and Muzaffargarh. There is no indication in the order, that with regard to the application of the accused, the prosecution was given notice or was heard before it was passed.
7. In Muhammad Ashraf v. Zafar Mahmood alias Master Khaki Zaman and others, my learned brother Ataullah Sajjad, J., while dealing with a similar matter, was pleased to observe :- "Section 540 of the Code of Criminal Procedure does not come into play where the defence could have an opportunity to produce a certain witness."
It is not denied, that the accused-respondents still have an opportunity to submit a list of their defence witnesses, pro-posed to be examined by them at the trial, if committed, under section 211 of the Code of Criminal Procedure and section 212 of the Criminal Procedure Code gives a discretion to the Magistrate to summon and examine any one of them.
That being the case, and especially when the prosecution was not given opportunity to oppose the request of the accused-respondents and the Magistrate has not given any reason, as to why he has summoned the aforesaid persons as Court witnesses, at a stage of the inquiry, when the prosecution case has not yet been concluded, the order needs interference. Thus for the aforesaid reasons, the revision petition is allowed and the order of the learned Magistrate dated 9th January 1970, by which he summoned Sub-Inspector Mirza Izat Beg, Khan Ijaz Ahmad Khan, Magistrate 1st Class, Gujranwala, Mr. Iftikhar Ahmad Assistant Commissioner, Muzaffargarh, Mr. Abdul Shakoor Qureshi, Section 30 Magistrate, Sheikhupura and Inspector Police Mr. Ghulam Muhammad Niazi, as Court witnesses is set aside. PLD 1967 Lah. 1045