FAROOQ HAIDER, J. Through instant revision petition filed under section 439, Cr.P.C., Muhammad Ibrahim (petitioner/accused) has impugned the vires of order dated: 26.07.2021 passed by learned Additional Sessions Judge, Kasur, whereby application filed by the petitioner under section 540, Cr.P.C. read with Articles 59 and 60 of Qanun-e-Shahadat Order, 1984 for summoning of "Ballistics Expert" as court witness was dismissed.
2. Facts of the case, succinctly required for disposal of the instant revision petition, are that case arising out of FIR No.96/2019 dated 19.05.2019, under sections 302, 324, 109, 148, 149, P.P.C. was registered against the petitioner and others, at Police Station: Thhey Sheikham, District Kasur, at the instance of Allah Ditta (respondent No.2/complainant), however, being dissatisfied with the investigation carried out by the police in the case, aforesaid Allah Ditta preferred complaint titled as "Allah Ditta v. Ibrahim and others"; during trial of said case, petitioner/accused filed application for summoning of "Ballistics Expert" as court witness, but the same was dismissed vide impugned order dated: 26.07.2021 (mentioned above).
3. Learned counsel for the petitioner, while opening his arguments, submits that as per contents of FIR, Rehmat Ali (deceased) sustained two firearm injuries i.e. one on his right thigh whereas the other on right flank and Shaukat Ali (one of the injured) sustained one firearm injury at his left thigh; further adds that in order to know distance of receiving aforementioned firearm shots, nature/kind and bore of weapon used during the occurrence, particularly with respect to different sizes of entry and exit wounds and for getting. answers of other relevant questions of similar nature, summoning of "Ballistics Expert" as a court witness is essential: in such backdrop, learned counsel finally submits that impugned order is not sustainable in the eyes of law.
4. On the other hand, learned counsel representing respondent No.2 while controverting aforementioned contentions advanced by learned counsel for the petitioner submits that since "Ballistics Expert" was neither cited as a witness in the calendar of witnesses nor he was associated during the course of investigation of the case, therefore, he cannot be summoned as a court witness; further submits that impugned order has been passed by the learned trial court while taking into consideration the material available on the record in its true perspective and the same also does not suffer from any illegality, therefore, revision petition in hand is liable to be dismissed.
5. Learned Deputy Prosecutor General has supported the impugned order.
6. Arguments heard, available record perused.
7. As per BLACKS'S LAW DICTIONARY (NINTH EDITION) edited by Bryan A. Garner meaning of "ballistics" is "The science of the motion of projectiles, such as bullets". Precisely, ballistics is the forensic science dealing with firearms and firearm projectiles. Specifically, the field of ballistics is concerned with identifying specific marks a firearm makes on a bullet, the angle of trajectory which a bullet travels after being fired, and the damage a bullet causes when it strikes a surface. Ballistic evidence is used to identify the type of weapon that was used in the commission of a crime and other details of the crime--for example, where the shooter was standing in relation to his or her target. It may also tell whether a weapon used in one crime has been used in the commission of another crime where identical ballistic evidence was discovered. Ballistic evidence---including gunshot residue, angle of trajectory, distance from the target, bullet entrance and exit marks, and damage are often used to reconstruct the events that transpired in the commission of a crime. For example, a person who says a gun accidently fired may be proved truthful or untruthful by forensic evidence that shows the trigger pressure of the weapon, the angle of the gun when fired, and the distance from which the gun was fired. A ballistics expert is a forensic specialist known professionally as a Firearm and Toolmark Examiner trained in the area of criminal justice but with a focus on ballistics and firearms. Cases involving the use of a firearm requires the expertise of a ballistics expert witness.
8. It has been noticed that during trial of the case, Dr. Hafiz Sami Ullah (Medical Officer) appeared as PW-I; some relevant portions of his statement recorded by learned trial court (available at pages No.31-32 of instant petition) are hereby reproduced:- "I conducted postmortem about 3-years. The blackening occurs if fire is shot from 3/4 meters distance. I have no idea if the fire is shot rom maximum distance when blackening occurs. I have no idea that if the fire is shot from which distance the exit wound occurs because I am not ballistic expert. I have no idea about the size of wound created by fire arm injury as I not ballistic expert. I do not know that which type of weapon creates what type of width and length of wound".
"I did not mention the kind of weapon in the postmortem report, however, I mention that it was fire arm injury. I cannot tell at what distance the accused caused fire arm injury No.1 to the deceased as I am not ballistic expert".
"It is correct that evidence is given on oath. The statement given by me today to the effect of blackening is correct. I am not ballistic expert. It is correct that the statement given by me regarding the blackening on 02.10.2020 was not correct."
(emphasis added)
Bare reading of aforementioned statement/replies given by Medical Officer (PW-1) reflects that certain questions relating to the field of forensic science were asked from said witness but he did not give detailed explanation in his reply to said questions while clearly stating that he is not "Ballistic Expert". It is important to mention here that when aforementioned questions were asked from said witness then neither those were objected by prosecution nor disallowed by the learned trial court meaning thereby that those were related to facts of the case i.e. "relevant" and when PW-1 did not give detailed explanation in reply to said questions while clearly answering that he is not "Ballistic Expert" and after his said answer, learned trial court did not compel him to reply said questions then learned trial court was of the view and satisfied that answers to said questions can only be given by the "Ballistics Expert", however, thereafter when application for summoning "Ballistics Expert" as court witness was filed before learned trial court then there was no occasion for disallowing said application. It is straightaway observed that in peculiar facts and circumstances of the case, aforesaid questions were relevant and reply of the same was necessary for just decision of the case and said questions could be answered by "Ballistics Expert".
So far as contention of learned counsel for respondent No.2 that since "Ballistics Expert" was neither cited as a witness in the calendar of witnesses nor he was associated during the course of investigation of the case, therefore, he cannot be summoned as a court witness is concerned, the same is without any force for the reason that for the purpose of summoning any witness under section 540, Cr.P.C., availability of his name in the calendar of witnesses is not necessary and absence of his name in the calendar of witnesses does not debar the Court from summoning said witness rather only consideration for summoning of any witness in a case under section 540, Cr.P.C. is that his evidence is necessary for just decision of the case; in this regard, guidance has been sought from case of "Ansar Mehmood v. Abdul Khaliq and another" (2011 SCMR 713). At this juncture, it would be also advantageous to go through the provision of section 540, Cr.P.C. which reads as follows:- "540. Power to summon material witness or examine person present. Any Court may, at any stage of any inquiry, trial of other proceeding 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."
(emphasis added)
9. It goes without saying that criminal justice system is not adversarial rather inquisitorial and Court has to reach at just decision of the case; any piece of evidence which is essential for just decision of the case, has to be brought on record irrespective of the fact that either it favours one party or goes against other; any delay for filing any application for calling/recalling of witnesses or bringing any piece of evidence on record, is immaterial; similarly, filling lacuna in the case is also immaterial if said piece of evidence is otherwise necessary for securing ends of justice i.e. essential for just decision of the case; in this regard, case of "Abdul Latif Aasi v. The State" (1999 MLD 1069) can be advantageously referred; relevant paragraph No.7 of the same is hereby reproduced:- "7. The main plank of the petitioner's arguments before me has been that in our adversarial system of justice there was no scope for an inquisitorial approach adopted by learned Trial Court through the impugned order passed by it. However, the learned counsel for the petitioner have failed to point out any statutory sanction for observing that our system of justice, is adversarial and not inquisitorial. If one looks at the history of our judicial system one may notice that this concept has gradually developed therein as a rule of prudence and practice mainly as regards civil litigation wherein the parties to a lis are required to lay their respective claims before the Trial Court and then substantiate, the same through evidence to be led by them. There are indications available in the Code of Civil Procedure which support the perception that civil litigation in our system is, by and large, adversarial in nature. But even there the inherent and general powers of the court, and even some specific powers, sometimes cut across that concept. A general acceptance of that concept in the civil litigation is, even otherwise, understandable. In a civil lis, more often than not, it is the parties to the lis alone who are interested in its outcome and effect.
This cannot be said to be true for a criminal case wherein an offence committed by an individual is considered to be an offence not only against his victim but also against the whole society and the State. Thus, in a criminal case an intentional or an un intentional lapse on the part of the complainant, the Investigating Officer or the prosecuting counsel is not to be allowed to stand in the way of a Trial Court to rectify that lapse by calling in evidence on its own if such evidence can have a bearing on the determination of guilt or innocence of the accused person. Such a power has to be conceded to a Criminal Court in the larger interest of the community at large.
Looked at in this context the stage of a trial appears to be irrelevant to an exercise of such a power of the Court and the only factor relevant to the exercise of such a power cannot be other than the relevance of the evidence called."
It goes without saying that Ch.1-E of the Volume III of Lahore High Court Rules and Orders deals with recording of evidence in criminal cases and relevant portion of its Rule 2 clearly reflects as under: - "2. Duty of Court to elucidate facts.---a Judge in a Criminal trial is not merely a disinterested auditor of the contest between the prosecution and the defence, but it is his duty to elucidate points left in obscurity by either side, intentionally or unintentionally, to come to a clear understanding of the actual events that occurred and to remove obscurities as far as possible. The wide powers given to the court by [Article 161 of the Qanun-e-Shahadat, 1984] ***[...1 should be judiciously utilized for this purpose when necessary".
(emphasis added)
Guidance in this regard is also sought from the dictum of law laid down in the case of "Chairman, NAB v. Muhammad Usman and others" (PLD 2018 Supreme Court 28) and relevant portion from its paragraph No.11 is reproduced:- "---The role of the Court under the provision of section 540, Cr.P.C. is inquisitorial where it endeavors to discover the truth, suppressed by both or one party to the case to incapacitate the Court to reach at a just conclusion. The role of the Judge does not undergo change because in exercising inquisitorial powers, the law has imposed obligation on it to discover the truth and to secure the ends of justice".
Further guidance on the subject has also been sought from the cases of "Ibrahim alias Ibro alias Khalifa v. The State" (1968 SCMR 1240), "The State v. Muhammad Yaqoob and others" (2001 SCMR 308) and "Karam Din v. Abdul Aziz and 11 others" (PLJ 2004 SC 642).
In the case of "The State v. Muhammad Yaqoob and others" (2001 SCMR 308), the august Supreme Court of Pakistan at Page No.325 has observed as under: - "It is thus manifest that calling of additional 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."
(emphasis added)
"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".
(emphasis added)
In the peculiar facts and circumstances of the case, this Court is of the firm view that summoning and examining of "Ballistics Expert" as, a court witness is necessary for just decision of the case and it goes without saying that it will not cause prejudice to any party of the case because when he will be summoned and examined as court witness, then both parties will be afforded opportunity of cross-examining him.
10. In view of what has been discussed above, instant revision petition filed by the petitioner is allowed. As a consequence whereof, impugned order dated 26.07.2021 passed by learned.
Additional Sessions Judge, Kasur/learned trial court is set aside; learned trial court will summon notified "Ballistics Expert" from concerned quarter as court witness and record his statement/evidence in the case, accordingly.