AHMAD ALI, J.--Petitioners through this writ of certiorari have called in question the vires of orders dated 09.05.2019 and 22.1 1.2018 of the learned Judge Accountability Court No. III, Peshawar .
2. A concise background of the present writ petition is that the petitioners are undergoing a trial in the NAB reference before Accountability Court No.III, Peshawar , where, during prosecution evidence, the statement of Investigating Officer was being recorded as PW-25. During the recording of the evidence of PW-25, he produced and got exhibited copies of the certain record which was objected by petitioners and it was requested to remove the exhibit marks from the said photocopies but the learned Accountability Court vide order dated 22.11.2018 refused to remove the exhibit marks. Further , the I.O. (PW-25) during the course of recording his continued examination-inchief produced four recovery memos in original for its exhibition. This time petitioners objected upon the production of said memos. The case was then adjourned for arguments on the said objection and finally , the learned Judge Accountability Court No.III, Peshawar , vide order dated 09.05.2 019 allowed the prosecution to produce and exhibit the said memos during the statement of PW-25. Discontented with the order dated 09.05.2019, petitioners filed present petition to set aside/quash the same along with order dated 22.1 1.2018.
3. Learned counsel for petitioners argued that the production of recovery memos of the year 2014 during the trial on 15.04.2019 by the I.O. is an attempt to fillup the lacunas by the prosecutions. He maintained that the said memos are not the part and parcel of the investigation as the same were kept in hiding for about five years, nor copies of the same were provided to accused as per the mandate of section 265-C, Cr.P.C. He argued that the said memos were manoeuvred and fabricated documents which were, for the first time, introduced during the evidence of I.O. which was causing serious prejudice to the case of petitioners/accused persons. Thus, the impugned orders are bereft of sanctities of law which were required to be set aside/quashed.
4. On the contrary , the counsel for respo ndents argued that the orders impugned herein were fully following the General Law and special law of National Accountability Ordinance, 1999. The Court had the powers to do everything required in bringing the truth on the surface. He was of the view that under section 540, Cr.P.C. the prosecution could produce additional documents/evidence at any stage of the trial. He argued that the cross- examination of PW-25 had yet to be recorded and petitioners might have the ample opportunity to cross-examine the witness on these lines. Therefore, no prejudice had been caused to the-petitioners and as such, the writ petition was liable to be dismissed.
5. We have heard arguments and gone through the record.
6. Record manifests that at the time of recording evidence of Investigating Officer (PW-25), the objection by petitioners on the exhibition of copies of certain documents with the request for the removal of exhibit marks from said documents was refused to, vide order dated 22.11.2018 by the learned trial -court. Another disagreement cropped up on 15.04.2019 when the said I.O. produced four-number of recovery memos for its exhibition during his evidence and petitioners resisted the same by claiming it to be an attempt to cover up the lacunas and that the said documents were not previously brought on the record nor copies of same were provided to petitioners in terms of section 265-C, Cr.P.C. However , the resistance by the defence on an exhibition of certain documents by the I.O.
(PW-25) during his examination-in-chief is without any legal backing and holds no water . The Investigating Officer can produce any document, relevant to the case, during his examination in chief and got the same exhibited and he has yet to be cross-examined, therefore, the memos intended to be exhibited would not prejudice the rights of petitioners/accused. In the case of "Muhammad Nazir v. The State and 2 others " (2005 SCMR 1653 ), the complainant was refused to produce some document during his evidence, howev er, the learned Sessions Judge while allowing the revision of complainant, permitted him to produce the same under section 540, Cr.P.C. The honourable Lahore High Court maintained the order of learned Sessions Judge. However , the august Supreme Court of Pakistan was pleased to hold that documents can be produced by the complainant with the permission of Court without filing a separate application under section 540, Cr.P.C. The august Supreme Court of Pakistan in the supra case of " Muhammad Nazir " was pleased to hold: After hearing the parties' counsel and having gone through the relevant provisions of law we are of the opinion that as the complainant was recording his examination-in-chief, therefore, he had no need for moving a separate application seeking permission to produce documents because he being the comp lainant could have tendered any document in his statement subject to the permission of the Court to accept the same or otherwise in view of the relevant provisions of the law. However , if the Court had declined to receive the documents which were being tendered by the complainant then he could have moved an application for summoning the witness i.e. the custodian of the documents by invoking jurisdiction of the Court under section 540, Cr.P.C. subject to the decision of the Court on it. Thus, this petition is converted into appeal and allowed, the impugned order is set aside with the observation that the complainant would be at liberty to tender such documents in his statement and if those documents are not received being contra ry to law on the subject then the complainant would be at liberty to move an application under section 540, Cr.P.C. for summoning the custodian of those documents and if such application is moved it would be disposed of by the learned Court independently . As this matter is pending since long on the file of trial Court, therefore, it is desired that case shall be disposed of expeditiously .
7. There is no denial of the fact that the copies of memos were already available on the file and the investigating officer only wanted to place on record the original of same. Thus, the production of all the memos in question during the examination in chief of PW-25 was already in the knowledge of petition ers/accused and they were not taken by surprise on the production of original memos, hence, no prejudice has been caused to them. Guidance derived from the case titled Ansar Mehmood v . Abdul Khaliq and another (2011 SCMR 713 ).
8. A bare perusal of the provisions of section 17 of National Accountability Bureau Ordinance, 1999, reveals that the provisions of Code of Criminal Procedure, 1898, shall mutatis mutandis, apply to the proceedings under the said Ordinance. Section 17 of the NAB Ordinance, 1999, is reproduced hereunder for ready reference:
17. Provisions of the Code to apply:- (a) Notwithstanding anything contained in any other law for the time being in force unless there is anything inconsiste nt with the provisions to this Ordinance, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall mutatis mutandis, apply to the proceedings under this Ordinance.
(b) Subject to subsection (a), the provisions of Chapter XXII A of the Code shall apply to trials under this Ordinance.
(c) Notwithstanding anything contained in sub-section (a) or subsection (b) or any law for the time being in force, the Court may, for reasons to be recorded, dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case.
(d) Notwithstanding anything in section 234 of the Code, a person accused of more offences than one of the same kind committed during the space of any number of years, from the first to the last of such offences, may be charged with and tried at one trial for any number of such of fences.
Because of supra provisions, section 540, Cr.P.C. being not inconsistent with the provisions of NAB Ordinance, 1999, are applicable and attracted to the trial in the Accountability Court. Section 540, Cr .P.C. states that:
540. Power to summon material witne ss or examine persons present. Any Court may, at any stage of any inquiry , trial or other proceedings under this Code, 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: 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.
9. A read-through of this section reveals that it has two parts. Under the first part, the court has the discretion to summon or recall any witness at any stage of the case. The scope of this part becomes more extensive when read in conjunction with the provisions of section 17(c) of the NAB Ordinance, which provide that the Court can follow the procedure as it may deem fit in the circumstances of the case. The discreti on is, no doubt, very wide and unlimited but, wider the discretion the more caution should be exercised.
10. Now it is to be seen as to whether or not the learned Judge Accountability Court had rightly exercised the statutory duty imposed on him by the second part of section 540, Cr.P.C. The second part of section 540, Cr.P.C. no doubt imposes a statutory duty on a court to summon, examine, recall or re-exa mine any person if the following conditions are satisfied. a. If the evidence is essential. b. It is essential to the just decision of the case.
11. The legislature by using the word "essential" and by qualifying the word "decision" by an adjective "just" in Cr.P.C. has indicated that the powers should be exercised very cautiously and only where the Court thinks the evidence to be necessary for the interest of justice. Besides, section 17(c) of the Ordinance, 1999, provides that the Court may follow such procedure as it may deem fit in the circumstances of the case. In other words, both the statutes armed the Court with powers to take any evidence it likes. The words "just decision" used in section 540, Cr.P.C. do not necessarily imply that the decision should be either in favour of the prosecution or the defence. Ibid provisions of both Cr.P.C. and Ordinance , 1999, merely confer a duty on the Court to proceed, where it finds it necessary to do so to arrive at the truth. On the other hand, the word "just" in section 540, Cr.P.C. implies that the Court should be careful in taking such an action which may result in injustice either to the accused or to the prosecution. In-fact the entire responsibility for taking the evidence to search the truth lies on the Court and a judicial opinion cannot be based on the technicalities. In a case titled Abdul Razzaq v. The State and 3 others (2012 YLR 1192) the complainant's request for production of additional documents during his evidence was refused by the learned trial court. The complainant approached the Hon'ble Lahore High Court in criminal revision seeking permission to produce said documents and the honourable High Court allowed his revision by holding that: The documents required to be exhibited are prima facie important to establish as to which of the party was in possession of the land where occurrence took place at the relevant time and the learned trial court was not justified in observing that complainant wanted to fill up the lacunae, especially when there is no embargo with regard to limitation and such jurisdiction could be exercised at any stage. Here in this case only examination-in-chief of three witnesses had been recorded, they were yet to be cross-examined and the entire evidence was yet to be produced, hence, it could not be said that these documents will prejudice the rights of the accused/respondents. Section 540, Cr.P.C. gives wide powers to the court in this behalf and this jurisdiction should be exercised liberally as the main ingredient under section 540, Cr.P.C. is that whether the piece of evidence which any party wanted to produce before the court, is essential to the just decision of the case or not. The court cannot sit as an idle spectator rather this section enables the court to examine any evidence at any stage of the proce edings which is deemed by the court essential for a just decision of the case. As observed above, these document s were on the face of it essential for a just decision of the case, therefore, the learned trial court passed the impugne d order without applying the law in its true perspective. As such, this petition is allowed, the impugned order dated 5-5-2010 is set aside, as a necessary consequence the application of the petitioner filed under section 540 read with section 94, Cr.P.C., shall be deemed to have been accepted, and the petitioner is allowed to produce the documents, detailed in the said application, during trial in accordance with law ."
12. Nevertheless, the discretion conferred on the Accountability Court is not to enable one party or the other to fill up the gaps in his case and to improve it by new matter at a later stage, but to enable the Court to act in the interest of justice when it considers such action necessary . A mindful reading of the impugned order dated 09.05.2019 reveals that the learned Court below while exercising its discretion observed the following: "It may not be ignored that the National Accountability Ordinance, 1999, is a special law with overriding effect. This aspect may also not be overemphasized that the whole scheme of any legislation and trial is to find out the truth in nutshell.
Keeping this fact in mind one shall hardly decline to impede production of relevant documentary material/evidence towards the meaningful conclusion of the trial proceedings. It remains imperative nevertheless that the accused must not be prejudiced or treated with inequality . For striking a balance, in the circumstances, it shall heavily lie upon the case I.O./ Investigation to satisfactorily answer as to why the above mentioned 04 memos were withheld from inclusion in the record or reference at the initial stage. The right of accused/defence in cross-examining the case I.O. shall be unrestricted in this respect. The potential rights of the accused are also secured as they shall have the opportunity of producing the defence evidence after the prosecution witnesses are examined."
13. It is clear from the above-noted para that the discretion so exercised by the learned court below in allowing the prosecution to produce and exhibit four number of memos in the statement of PW-25 is not to enable prosecution to fill up the gaps in their case, but such discretion is to enable the court to act in the interest of justice particularly when the I.O. will be subjected to cross-e xamination by the defence as per their satisfaction. The defence will have sufficient opportunity to shatter the said memos to surface out the truth; and after that, the Court will decide the authenticity or otherwise of the said memos. Reliance in this regard may be placed on the case titled Khizar Hayat v. Judicial Magistrate and 2 others (2015 PCr.LJ 1566), wherein while dealing with the controversy of producing a document during evidence, not previou sly annexed with the complete challan, the Hon'ble Lahore High Court held that any such document can be received in evidence if such a document meets the standards of admissibility and is necessary for the just decision of the case, however , such document would be subject to cross-examines by the other side.
14. So far as the order dated 22.11.2018 is concerned, the learned court below had rightly refused to remove the exhibit marks on the relevant documents. Nevertheless, it is observed that the petitioners had not challenged the said order at that time and impugned the same after a lapse of almost six months along with the order dated 09.05.2016. As in the cases of NAB Ordinance, 1999, there is no provision of the revision against any order passed during the pendency of the case, therefore, the discretion of the High Court vested under Article 199 of the Constitution can be invoked but the same should be in a reasonable time.
15. The word "reasonable" has in law prima facie meaning of reasonable concerning those circumstances of which the person concerned is called upon to act reasonably , knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to the idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary , under the circumstan ces, to do conveniently what the contract or duty requires should be done in a particular case. In other words, it means, as soon as circumstances permit. One of the impugned orders was announced on 22.11.2018 but petitioners challenged it by filing writ petition on 17.05.2019. It is well settled that Courts cannot come to the rescue of persons, who are not vigilant regarding their rights. It is unjust to give the petitioners a remedy where, by their conduct, they have done that which might fairly be regarded as equivalent to a waiver . Reliance is placed on 2018 CLC 947 (Islamabad) titled Park View Enclave (Pvt.) Ltd. Through Chief Financial Officer v. Capital Development Authority through Chairman and 2 others . Reliance is also placed on the judgment of Hon'ble Supreme Court of Pakistan reported as "Settlement Authority through the Chief Settlement Commissioner , Laho re and another v. Mst. Akhtar Sultana " (PLD 1976 Supreme Court 410) . In the said judgment, the Apex Court observed that: "The delay and laches were so palpable that they should have attracted the notice of the High Court, and the mere fact that no objection was taken at the time was no ground to omit to consider the consequence of delay and laches. It was the duty of the respondent to explain the obvious delay in moving the writ petition. Nevertheless, this Court is entitled to consider the laches on the part of the respondent and to pass such order as the High Court could or should have passed on a true consideration of the palpable delay in making the Constitution petition".
16. In the Limitation Act, 1908 hard and fast rules have been provided to approach the court for redressal of grievances within the stipulated time and if it is not done so and no reasonable cause is shown to justify the delay , the party approaching the court with a delay could be non-suited. The law of limitation is subservient Law as compared to constitutional provisions, therefore, the constitutional petition had to be taken up under the principle of laches. Reliance is placed on a reported case titled Muhammad Sarwar v. Additional District Judge Faisalabad and 5 others (2017 CLC 1361 ).
17. As petitioners failed to impugn the order dated 22.11.2018 within reasonable time therefore, they cannot invoke the equitable writ jurisdiction of the High Court.
18. For what has been discussed above, both the impugned orders are maintained and thereby the writ petition stands dismissed being meritless.