SADIQ MAHMUD KHURRAM, J. Through the instant appeal filed under Section 48 of the Control of Narcotic Substances Act, 1997, the appellant has assailed the vires of impugned order dated 04.04.2022 passed by the learned trial court, whereby the learned trial court dismissed the application as filed by the learned Assistant District Public Prosecutor under section 540 of the Code of Criminal Procedure, 1898 seeking the summoning and re- examination of the prosecution witness namely Sajjad Hussain, ASI (PW -3).
2. The brief facts of the case are that the respondent is facing trial in case FIR No.431 of 2020, dated 25.09.2020 registered in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Uch Sharif, District Bahawalpur , and during the course of trial, the prosecution , in order to prove the charge against the respondent, got as many as seven witnesses recorded, however , on 09.03.2022, the learned Assistant District Public Prosecutor submitted an application under section 540 of the Code of Criminal Procedure, 1898 seeking the summoning and re-exa mination of the prosecution witness namely Sajjad Hussain, ASI (PW-3) on the ground that in his statement, Sajja d Hussain, ASI (PW-3) had not stated the fact that on 13.10.2020, Zahoor Ahmad 1193/HC (PW-2), had handed over to him the twenty nine parcels of the recovered "Charas" , a rope, a bag, a motorcycle, a mobile phone and Rs.1500/- for depositing the same in the judicial Maalkhana from the Maalkhana of the Police Station. As mentioned above, the application as filed by the Assistant District Public Prosecutor was dismissed, hence, the appeal.
3. The learned Deputy Prosecutor General inter alia contends that the order dated 04.04.2022, passed by the learned trial court is not sustainable being against the facts and law; that as per section 540 Cr.P.C. the court has been vested with unlimited powers to summon the persons as witnesses, necessary to arrive at just conclusion, as is in the case in hand; that the respondent shall not be prejudiced at all in his defence if the application submitted by the learned Assistant District Public Prosecutor before the learned trial court is allowed.
4. The learned counsel for the respondent has opposed the contentions advanced by the learned Deputy Prosecutor General with the averments that nevertheless it is the duty of the court to summon persons as witnesses to arrive at just conclusion as enshrined in section 540, Cr.P.C, however , firstly provisions of section supra are not mandatory in nature and secondly nobody can be given unconditional right to get a witness already examined, re-examined. The learned counsel for the respondent further contended that the impugned order dated 04.04.2022 of the learned trial court had been passed keeping in view the law on the subject.
5. We have considered the arguments advanced by the learned Deputy Prosecutor General, the learned counsel for the respondent and have gone through the record available on file.
6. We have noted that the prosecution , in order to prove the charge against the respondent, got as many as seven witnesses recorded, however , on 09.03.2022, the learned Assistant District Public Prosecutor submitted an application under section 540 of the Code of Criminal Procedure, 1898 seeking the summoning and re-examination of the prosecution witness namely Sajjad Hussain, ASI (PW-3) on the ground that in his statement , Sajjad Hussain, ASI (PW-3) had not stated the fact that on 13.10.2020, Zahoor Ahmad 1193/HC (PW-2), had handed over to him the twenty nine parcels of the recovered "Charas" , a rope, a bag, a motorcycle , a mobile phone and Rs.1500/- for depositing the same in the judicial Maalkhana from the Maalkhana of the Police Station. As mentioned above, the application as filed by the Assistant District Public Prosecutor was dismissed. We have seen the statement of the prosecution witness namely Zahoor Ahmad 1193/HC (PW-2) recorded by the learned trial court and in the said statement Zahoor Ahmad 1193/HC (PW-2) had indeed stated that on 13.10.2020, he had handed over to Sajjad Hussain (PW-3) the twenty nine parcels of the recovered "Charas" a rope, a bag, a motorcycle, a mobile phone and Rs.1500/- for depositing the same in the judicial Maalkhana from the Maalkhana of the Police Station, however , while appearing as a prosecution witness, Sajjad Hussain (PW-3) did not mention the said fact. Realizing the omission in the statement of Sajjad Hussain (PW-3), the learned Assistant District Public Prosecutor submitted an application for the summoning and re-examination of the prosecution witness namely Sajjad Hussain (PW-3). The only fact with regard to which the prosecution witness namely Sajjad Hussain, ASI (PW-3) is being sought to be summoned and re-examined is the detail as to whether on 13.10.2020, Zahoor Ahmad 1193/HC (PW-2), had handed over to him the twenty nine parcels of the recovered "Charas", a rope, a bag, a motorcycle, a mobile phone and Rs.1500/- for depositing the same in the judicial Maalkhana from the Maalkhana of the Police Station. We are of the considered view that if the prosecution witness namely Sajjad Hussain (PW-3) is summoned and re-examined with regard to the above fact, the respondent shall not be at all prejudiced in his defence of the charge levelled against him. Necessarily , the respondent shall be provided an opportunity of cross- examining the prosecution witness namely Sajjad Hussain, ASI (PW-3) again and in that manner would have all the opportunity of bringing out the various inherent flaws in the statement of the prosecution witness namely Sajjad Hussain,ASI (PW-3). The production and examination of witnesses has also been explained by various provisions contained in Chapter X of the Qanun-e-Shahadat Order , 1984. This provision in unequivocal terms prescribes the mode and manner of examination of witnesses. The prosecution witnesses or any party calling and examining the witnesses is called, 'examination-in-chief' while examination of the same witnesses by the opposite party is called, 'cross-examination'. Subsequent examination of the same witnesses by the party calling it, is called 're- examination'. There is no denial to the fact that the solitary purpose of any trial is the discovery of the truth and to arrive at a correct conclusion and to see that no innocent person is punished. Section 540, Cr.P.C. deals with power of the court qua summoning of witnesses. It would be advantageous to reproduce the section supra, which reads as under:- "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 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."
A close reading of afore-mentioned provis ion indicates that it gives rather wide powers to the Court to examine any witness as a court witness at any stage of the case. The section consists of two parts: one giving discretionary power to the Court and the other imposing an obligation on it. In Jamatraj Kewalfi Govani v. State of Maharashtra (AIR 1968 SC 178), the Court was seized of a similar issue when it held as follows:-- "(10) Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory . The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of the three ways: (a) summon any person as a witness,
(b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however , two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly ."
The Court cannot summarily dismiss an application in terms of section 540 Cr.P.C. by merely holding that either that it was belated application or that it may fill up lacunae in prosecution case, unless the totality of material placed before it is considered to find out whether examination of the said witness is essential for a just decision of the case. While dilating on the purpose of an analogous provision in Indian Criminal Procedure Code (Section 311), the Supreme Court of India in Iddar and orders v . Aabida and another (AIR 2007 SC 3029) observed as follows:-- "The object underlying section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determin ative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improp er exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trial under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry . In section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however , to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously , as the wider the power the greater is the necessity for application of judicial mind."
The august Supreme Court of Pakistan while dilating upon the powers given to the Courts under section 540 of the Code of Criminal Procedure, 1898 observed in the case of Nawabzada Shah Zain Bugti And Others Vs. The State (PLD 2013 Supreme Court 160) as under:- "The Court has also to keep in mind that in trying a case it has to find out the truth to render a judgment in accord with canons of justice. If it finds that the investigation is defective, it cannot just sit idle as a timorous soul and has to exercise all the enabling provisions under the law including section 540, Cr.P.C. to discern the truth. For the purpose of this provision, the Court even without any formal application from prosecution or accused, can summon any person as witness or examine any person in attendance though not summoned as a witness or recall and re- examine any person already examined."
7. In view of the above discussion, this appeal is allowed and the order dated 04.04.2022, passed by the learned Additional Sessions Judge/Judge Model Criminal Trial Court, Ahmadpur East is set aside . It is further ordered that the learned Additional Sessions Judge/Judge Model Criminal Trial Court, Ahmadpur East shall summon the prosecution witness namely Sajjad Hussain (PW-3), re-examine him and provide the respondent opportunity to produce his counsel and cross-examine the prosecution witness namely Sajjad Hussain (PW -3).