The facts giving rise to this petition are as under :- Azhar Haider Shah respondent is facing trial under section 302, P. P. C. In the Court of the learned Additional Sessions Judge, Lahore. Zahid Ali Shah is a prosecution witness in the case. When he was being cross-examined, a photograph (Exh. D. A.) was shown to him and he admitted that it was of the accused-respondent. In his statement under section 342, Cr. P. C. The accused stated that he was 14/15 years of age and he also produced school leaving certificate (marked 'A') in proof of his age. The defence wanted to show that the accused was a young lad at the time of occurrence with a view to make out a case for lesser sentence in case the accused was convicted. After the examination of the accused under section 342, Cr. P. C. The complainant moved an application praying that the accused be referred to a Radiologist for the determination of his age, "and the date of the photograph of the accused may also be brought on the record...". The learned Public Prosecutor also supported the application. The accused-respondent resisted the application on the ground that provisions of section 540, Cr. P. C. Are not attracted and there was no provision of law under which the accused could be referred to the Radiologist on the request of the complainant.
2. After hearing the learned counsel for the parties, the learned trial Judge observed that a witness can be examined and recalled only if the Court considers it necessary for the just decision of the case ; the application moved by the complainant was not for summoning any material witness or for re-calling or re-examining any witness already examined and there was no ,provision of law under which the accused could be referred to a Radiologist on the request of the complainant. ' He, therefore, dismissed the application by order, dated 8th February, 1984 which is under challenge in this revision petition.
The learned counsel for the petitioner contended that the school leaving certificate produced by the accused-respondent was not exhibited and the only evidence available on the record about the age of the accused is photograph Exh. D. A. And his own assertion that he is 14/15 years of age.
It is submitted that in a murder case young age of the accused is considered as a mitigating circumstance for awarding lesser penalty, therefore, it is absolutely necessary to determine the age of the accused as it will affect the question of sentence in case he is convicted. The learned counsel for the complainant and the learned Additional Advocate-General supported the impugned order and submitted that there was no provision of law under which the accused could be referred to the Radiologist at the request of the complainant and in any case summoning of evidence after examination of the accused under section 342, Cr. P. C., would be prejudicial to him.
4. Section 540, Cr. P. C., consists of two parts. First part gives a discretionary power to the Court to 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. The second part imposes an obligation on the Court to summon and examine or recall and re-examine any such person if his evidence is essential to the just decision of the case. It is the duty of the Court to examine fresh evidence under the second part if it is satisfied that such evidence is essential to the just decision of the case. Whether such evidence is essential or not depends upon the facts of each cast and is a matter to be decided by the Court. The question of sentence, particularly in a murder case, is of vital importance. In case the accused is convicted, the trial Court will be called upon to consider the question of sentence and the age of the accused will be a relevant factor for determining the quantum of sentence. In the instant case the only material brought on the record is photograph Exh. D. A., school leaving certificate which was not exhibited and accused-respondent's own assertion that he is 14/15 years of age. The case of the complainant is that the accused is aged 20 years. It is admitted by both the parties that birth entry of the accused is not available. In the circumstances, the examination of the accused by a Radiologist and his evidence regarding the age of the accused would be necessary to arrive at a just decision on the question of sentence.
There is a duty cast on the Court to arrive at the truth by all lawful means. Section 540, Cr. P. C. And section 165 of the Evidence Act give unlimited powers to the Court for that purpose. The Court can exercise this power of its own and it can also be invoked by the parties. The mere fact that application for examination of the accused by a Radiologist and summoning him for evidence was made by the complainant will not preclude the Court from exercising the power under section 540, Cr. P. C. In Ibrahim's case the accused maintained that he was not the same person who had been accused in the case. In the course of his examination under section 342, Cr. P. C. He produced a birth certificate showing a different parentage and caste. The prosecution prayed for an opportunity to call evidence in rebuttal. The trial Court held that it had the power to allow the prosecution to do so under section 292, Cr. P. C. (since repealed): The Court called the Finger Print Expert who compared the thumb-impression of the accused, taken in Court, with his admitted thumb-impression on an F. I. R. Lodged by him earlier and appeared as a witness to prove the identity of the accused. Before the Supreme Court it was contended that taking of evidence of the Finger Print Expert after the prosecution had closed its case and the accused had been examined under section 342, Cr. P. C., was illegal. The contention was repelled with the observation that whatever may be the position under section 292, Cr. P. C. "there was ample power in the Court itself under section 540, Cr. P. C. To summon any person as a witness at any stage of the trial even though he had not been summoned before".
5. For the foregoing reasons, I allow this petition and direct the learned trial Judge to refer the accused to the Radiologist for the A determination of his age and examine him as a Court witness.1 The accused shall be given an opportunity to rebut the evidence of the Radiologist if it is prejudicial to his interest. 1968 SCM R 1240