This is a petition under section 435/439, Cr. P. C. For the revision of an order passed by Raja M. Ayub, Corporation Magistrate, Lahore, on the 10th of January 1970, summoning Mr. Tayyab Siddiqi, Advocate, and six others as Court witnesses under section 540 of the Code of Criminal Procedure in a case under section 307/34, P. P. C. Pending against respondents Nos. 2 and 3 in his Court.
2. The prosecution case, in brief, is that Mst. Munawar Sultana, a sister of the petitioner Muhammad Akhtar, on account of maltreatment of her husband Mukhtar Hussain Shah, respon--dent No. 2, was living with her parents on the eventful evening when one of her sons was found missing and the petitioner and his brother Humayun Akhtar went to enquire about him from the house of respondent No. 2 who resented it and is said to have come down with his nephew Zulfiqar Ali respondent No. 3 and i.e the course of the altercation that ensued between them in the "lane fired a shot from his revolver on the exhortation of respon--dent No. 3, which hit Humayun Akhtar P. W., in the abdomen. In the meanwhile Zaman Abbas, then posted as A. S. I. At Police Station Shahdara, a relative of respondent No. 2, had also appeared on the scene and catching hold of respondent No. 2 snatched the revolver from him with the assistance of the petitioner. Humayun Akhtar, the injured person, was then immediately removed to the Mayo Hospital, Lahore, in an uncon--scious condition. On receiving a telephonic information from the hospital Allah Rakha A. S. I. Police Post Krishan Nagar, arrived there and recorded the statement Exh. P. A. Of Muhammad Akhtar petitioner at 10-45 p.m. On the same night about this occurrence: The present case was registered against the respondents on the basis of this statement at Police Station Old Anarkali, Lahore.
3. The A. S. I. After the necessary formalities at Mayo Hospital, Lahore, returned to the Police Post Krishan Nagar where. Mukhtar Hussain respondent No. 2 was found present and submitted an application containing his version of the occurrence which forms part of this record as Exh. P. S. He was, however, arrested and confined in the Police lock-up for the night. As a result of the investigation that followed the to respondents were challaned but no cross-case was registered against the party of the petitioner so the respondent No. 2 filed a complaint on the basis of his report (Exh. P. S.) to the police. After the learned Magistrate lead recorded the statements of all the prosecution witnesses mentioned in the calendar respondent No. 2 moved an application under section 540, Cr. P. C. For summoning Mr. Tayyab Siddiqi, Advocate; and six others, residents of that locality as Court witnesses which was allowed by the impugned order, the correctness of which has been challenged on the ground that it was passed in an arbitrary manner without notice to the petitioner (complainant) and assigning any reasons, although these persons were essentially defence witnesses. Reliance was placed on Muhammad Ashraf v. Zafar Mahmood and. Others (PLD 1967 Lah. 1045), this petition was accordingly admitted to a regular hearing on the 27th of January 1970.
4. I have heard the learned counsel for the parties who have taken me through the record of the case arid find no grounds to interfere as the facts of the present case are quite distinguishable from the facts of the above-said case.
A persual of the F. I. R. Exh. P. A. And the application Exh. P. S., immediately submitted by respondent No. 2 at, the Police Station, would reveal that none of the parties had men--tioned the name of any person as eye-witness of the occurrence. The police file disclosed that Allah Rakha A. S. I. On reaching the spot on the next morning had joined the residents of the neighbouring houses in the investigation of the case including Tayyab Siddiqi, Advocate and some others. The investigation was then taken over by Mr. Jan Muhammad Inspector, C. I. A., who had also recorded the statement of most of the persons living in that locality including Mr. Tayyab Siddiqi, Advocate, Mr. War Ahmad, Commander Civil Defence, Ch. Inayat Ullah, Advocate, Mr. Ata Muhammad and Mistri Siraj Din. Allah Rakha A. S. I. Admitted most of these facts in his statement at the trial as- P. W. 8; the evidence of these witnesses was thus essential to the just decision of the case in this background of the investigation: As their names were omitted from the calendar o witnesses by the police they were produced as witnesses by respondent No. 2 in his complaint. Their evidence could not be considered in the challan case as section 43 of the Evidence Act would be a bar to such a course of action so to enable himself to dispose of the to cross-cases simultaneously the learned Magistrate appears to have allowed the request of respondent No. 2 and ordered the summoning of these witnesses under section 540 of the Code of Criminal Procedure. The provisions of this section give the Court unlimited powers to summon as witness any person whose evidence appears essential to the just decision of the case even including a person intended to be produced as a defence witness as was done in Ali Nawaz Gardezi's case (PLD 1963 SC 51) and approved by their Lordships of the Supreme Court indisposing of the appeal in the same case.
5. Section 540 of the Code of Criminal Procedure is manifestly in to parts, the first part gives a purely discretionary authority as the word used therein is "may" while the second part is mandatory as the word "shall" has been used to emphasise its import and binds the Court to examine any witness if his evidence is essential to the just decision of the case and it is not left to the Court to rely on a mere presumption tinder section 114(g) of the Evidence Act that .The evidence which could be and is not produced, would, if produced, be unfavourable to the person withholding it as was observed in Ramjeet's case (AIR 1958 All. 439) Taking this view of -the matter it was imperative for the learned Magistrate to examine the aforesaid persons as they were residing in the vicinity of the alleged crime and likely to depose about it in the natural course of events. The police having recorded their statements could not have withheld their evidence from the Court.
6. In the authority relied upon by the petitioner (PL D 1967 Lah. 1045) there were to sets of accused arrayed before the Court in the same case; one set of the accused had alleged that the murder in question was actually committed by the other set of the accused and the witnesses produced by them before the police in support of their contention had been summoned under section 540 of the Code of Criminal Procedure by the committing Magistrate in the joint inquiry being held against both sets of the accused. In that background, those witnesses were essentially the defence witnesses and their evidence would have certainly prejudiced the prosecution case as the first set of accused was definitely put in an advantageous position as they would have got an opportunity to cross-examine their own witnesses, In the present case, as discussed above, the witnesses sought to be summoned under section 540 of the Code of Criminal Procedure could never be dubbed as the nominees of the accused, respondents. The fact that respondent No. 2 had adopted them as : his witnesses in the complaint case would make no difference as they were originally joined in the investigation by the police 7.The record of the case indicates that the learned Magistrate had issued a notice to the State on submission of the application under section 540 of the Code of Criminal Procedure for the 10th of January 1970, and must have heard arguments from both sides before passing the impugned order, although' the record is silent about it. Mr. Mobin counsel for the respondents (Nos. 2 and 3) has, however; confirmed it by making a statement at the bar to that effect which learned counsel for the petitioner is unable to rebut, so the contention 'that it was passed without notice to the other party is not sustainable. It is, however, correct that the learned Magistrate had, not given his reasons for passing this order but it was not of much consequence as the application had not been rejected in this case.
8. In view of what has been said above, I do not consider that the objection raised by the petitioner is valid and I am firmly of the opinion that the learned Magistrate was quite justified in summoning these. Persons as Court witnesses in the challan case irrespective of the source which inspired him to pass this order. The petition is accordingly dismissed.