Through this Crl. Revision under Section 439/435 of Cr.P.C., the petitioner (Majid Javed alias Javed Ali) has assailed the vires of order dated 17.05.2025, passed by the learned Addl. Sessions Judge, Multan, whereby application, filed by the petitioner for summoning of Control Room Wireless Operator / Moharrar as Court witness regarding Rapt dated 18.05.2023, at 09.00 a.m. to 12.00 a.m. alongwith register Control Room, filed during the trial of FIR No.560/2023, dated 18.05.2023, for the offence under Section 302 of PPC, Police Station Lahori Gate District Multan was dismissed.
2. Facts necessary for the disposal of this revision petition are that respondent No.2/complainant (Muhammad Danish) got registered a criminal case against the petitioner with the allegation that on 18.05.2023, at about 09.45 a.m., he committed Qatl-e-Amd of Amir Ali, brother of the complainant by making fire shot. After registration of the case, the petitioner was arrested by the police and report under Section 173 of Cr.P.C. was submitted by the police placing the name of the petitioner/accused in column No.3 of the said report. After fulfillment of all the requirements, learned trial Court formally charge sheeted the petitioner on 01.11.2023, to which he pleaded not guilty and claimed trial. Statements of 08 PWs were recorded by the learned trail Court. During the pendency of trial, petitioner moved an application seeking the summoning of Control Room Wireless Operator/ Moharrar as Court witness alongwith Rapts dated 18.05.2025 at about 09.00 a.m. to 12.00 a.m. / register of Control Room, which was dismissed by the learned trail Court, vide impugned order dated 17.05.2025. Hence, this revision petition.
3. Learned counsel for the petitioner submitted that impugned order dated 17.05.2025 is illegal, unwarranted, capricious, fanciful, biased and against the settled principal of law and liable to be set-aside; that learned trial Court was vested with the powers to call for record on the application of aggrieved party under Section 540 of Cr.P.C. read with Section 94 thereof, but learned trial Court erred in law and facts of the case while passing the impugned order, hence, the learned trial Court declined to exercise its jurisdiction, vested in it by law and exercised the jurisdiction, which was not vested in it by the law. Finally added that the testimony of aforesaid witness was crucial and necessary for the just decision of the case as it would clarify material aspects of the communication or call record pertaining to the incident in question, however, the learned trial Court dismissed the application without assigning cogent reasons or properly examining the necessity of such evidence.
4. On the other hand, learned Addl. Prosecutor General, Punjab assisted by the learned counsel for respondent No.2 / complainant supported the impugned order and submitted that a person could not be called as Court witnesses on the whims and caprice of a party. Further added that the material intended to be brought on record by summoning the witness is already available on record in shape of cross-examination, conducted by the petitioner on PW.8/Investigating Officer of the case.
5. I have heard the arguments of the learned counsel for the parties and perused the available record with their able assistance.
6. Petitioner/accused has sought the summoning of Control Room Wireless Operator / Moharrar alongwith record/register regarding Rapts dated 18.05.2023 as Court witness maintaining that on the above date, three calls were made at Rescue 15 with the report that one person inflicted injuries to another person and according to the 3rd call an information was laid to the effect that one Zeeshan gave information that somebody made fire shot at his cousin, who passed away at Nishtar Hospital, Multan; above said witness and record was essential for a just decision of the case.
7. In the case in hand Section 540 of Cr.P.C has to be read alongwith Section 94 (1) and Section 265-F (7) thereof. All the above said provisions are being produced below for the facility of reference:- Section 94: Summon to produce document or other thing. (1) Whenever any Court, or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summon, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order."
Section 265-F (7): If the accused or any one or several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation of delay or defeating the ends of justice such ground shall be recorded by the Court in writing."
Section 540 of Cr.P.C: 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 or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."
8. Section 94 of Cr.P.C. relates to the procedure for the production of any document or other thing necessary or desirable for the purpose of investigation, inquiry or trial or other proceedings. It empowers the Investigating Officer or the Court to issue a summon or the order requiring a person, in whose possession the document was lying, to produce the same at any stage of investigation, inquiry or trial.
9. Section 265-F (7) of Cr.P.C. envisages that an accused after entering into his defence, may apply to the Court for procuring the attendance of any witness for examination or any document or thing and the Court shall issue such process unless it appears to the Court that the application has been made for causing the delay or for defeating the ends of justice.
10. The word "shall" used in the said provision implies mandate meaning thereby that summoning of witnesses as suggested by accused is a rule, whereas its refusal under the circumstances shall be an exception. Violation of the said provision of law is an irregularity not curable under the law and the order shall be liable to be set-aside.
11. So far as Section 540 of Cr.P.C. is concerned, it empowers the Court to summon any person as a witness at any stage of inquiry, trial or other proceeding, if his evidence appears to be essential for the just decision of the case. It is well-established that this provision is intended to advance the cause of justice and enable the Court to prevent failure of justice by bringing every relevant piece of evidence on record. It has been held by the Hon'ble Supreme Court in case "The State v. Fazal Muhammad" (PLD 1960 SC 387) that "The purpose of Section 540 Cr.P.C. is to enable the Court to obtain the best possible evidence for the just decision of the case, and refusal to exercise such power where the evidence is relevant would amount to miscarriage of justice."
12. Similarly, in case of "Muhammad Akram v. The State" (2003 SCMR 1419), it was observed as under: "The trial court is not only empowered but obligated under Section 540 Cr.P.C. to summon any witness whose evidence appears essential for a just decision, even if such an application is made by the accused or prosecution."
13. Petitioner/accused claimed that according to calls made to Rescue 15 on 18.05.2023, no person was mentioned as accused, as such its production is necessary for the just decision of the case. In my humble view, above said documents/Rapts were relevant under Article 24 of Qanun-e- Shahadat, 1984, which reads as under:- "Article 24. When Facts not otherwise relevant become relevant. Facts not otherwise relevant are relevant:-
(1) If they are inconsistent with any fact in issue or relevant fact;
(2) If by themselves or in connection with other facts, they make the existence or non-existence of any fact in issue or relevant highly probable or improbable.
15 Summoning, production and use of the above said documents may make the existence or non- existence of a fact highly probable or improbable, as such was essential for the just decision of the case. The "just" means right, fair and well founded. It is always duty of the Court to make every effort that no aspect of the case should be left unattended, therefore, the learned trial Court, while passing the impugned order dated 17.05.2025, refusing to summon the above said witness alongwith record committed material irregularity . The learned trial Court failed to exercise discretion judiciously and did not record any substantial reason for rejecting the application, despite the witness being relevant and material.
16. In view of above discussion, the revision petition is accepted. Resultantly, impugned order dated 17.05.2025 is set aside. The learned trial Court is directed to summon the Control Room Wireless Operator/ Moharrar as Court witness alongwith record of Rapts dated 18.05.2025 at about 09.00 a.m. to 12.00 a.m. of Control Room as a witness under Section 540 Cr.P.C., and to record his testimony in accordance with law. Let a copy of this order be sent to the learned trial Court for immediate compliance.