This reference involves the construction of the provisions of section 540 of the Criminal Procedure Code. The material facts are that the first respondent and the father of the second respon dent had entered into a written deed of a partnership on 31st August 1963. The father of the second respondent was entitled to terminate the Partnership by 15 days' notice and in the events that happened, the Partnership had been terminated. There is a Deed Dissolution dated 21st May 1964, but there is a dispute about it and it is alleged that this deed is a forgery. The Partner ship business was carried on in a building known as Fadoo building on Bunder Road, Karachi. According to the second respondent, although on the dissolution of the partnership, the first respondent had lost all right and interest in these premises, he took illegal possession of these premises on 30th May 1964, therefore on his father's behalf he filed a complaint against the first respondent for criminal trespass under section 448, P. P. C. being Criminal Case No. 303 of 1965. I have also to observe here that the second respondent's father has filed a suit for rendition of accounts against the first respondent which is pending in the Court of the First Civil Judge, Karachi. In the events that happened, Criminal Case No. 303 of 1965 against the first respondent came up for hearing before Mr. Muhammad Khan Junejo, S. D. M., Karachi who recorded the examination-in-chief, and the cross-examination of the second respondent's father on 6th January 1966, and 27th January 1966, respectively. On 13th February 1966, the second respondent applied for a copy of his father's evidence, and he received this copy on 24th February 1966. According to the second respondent his father's evidence had been altered after it had been recorded in Court and duly signed by his father, and this alteration in his father's evidence had been effected by surreptitiously removing the first page of his father's evidence and by substituting in its place another typed sheet in which certain statements made by his father had been omitted, whilst other statements never made by him in the witness-box were attributed to him. Therefore, on 28th February 1966, the Prosecuting Sub- Inspector filed an application for re examining the second respondent's father and this application was supported by the affidavit of Mr. Sakhavat Hussain, the Pro secuting Inspector and an affidavit of the second respondent's father. This application was opposed by the first respondent. On 18th July 1966, the Prosecuting Inspector filed another application before the learned Magistrate, Mr. Muhammad Khan Junejo in which he, claimed that in the interest of justice, an inquiry should be made under section 476, Cr. P. C. the allegation that the evidence of the second respondent's father had been tampered with and that pending the inquiry, the prosecution should be stayed.
Meanwhile on 17th May 1966, there was a change in the Court in that Mr. Muhammad Khan Junejo was transferred and Mr. Abdullah Balooch was appointed to the said Court. I have observed that the first respondent had objected to the application for correcting the evidence of the second respondent's father, therefore this application came up for hearing before Mr. Abdullah Balooch who had replaced Mr. Muhammad Khan Junejo. By his order dated 18th July 1966, Mr. Abdullah Balooch observed that an application for an enquiry under section 478, Cr. P. C. dated 18th July 1966, filed by the said Sub-Inspector was pending, that an inquiry under section 478, Cr. P. C. would take long, therefore, he ordered, in the interest of justice, that the second respondent's father should be recalled and re-examined under section 514, Cr. P. C. Then on 27th July 1966, the first respondent filed an application that no summons should be issued for the examination of the second respondent's father, and that the Court's order of 18th July 1966, to examine him should be cancelled. This application was opposed by the second respondent, but by his order dated 22nd November 1966, Mr. Abdullah Balooch the learned Additional City Magistrate, dismissed this application and in his order of dismissal he has observed :-- "I therefore, stick to my previous order in this respect and file the application dated 27th July 1966, by defence counsel,"
Aggrieved by this order, the first respondent filed an applica tion in the Sessions Court, Karachi in which he prayed that- the Sessions Court recommend to this Court that this order of 22nd November 1966, by the Magistrate be quashed. The learned Additional Sessions Judge, who heard this application, came to the conclusion that the order for the examination of the second respondent's father under section 540, Cr. P. C. was not justified, therefore, he has made a recommendation that the order of the learned Magistrate dated 22nd November 1966 be quashed and this reference has now come up for hearing before me.
3. The question for determination in this reference is the scope of the Court's power under section 540, Cr. P. C. I have observed that an inquiry is pending in respect of the application dated 18th July 1966, therefore, learned counsel for the firstj respondent submitted that, unless the inquiry established thatj. the record of the case had been tampered with, in view of thei provisions of section 360, Cr. P. C. the Court had no power to recall a witness for examination, and, alternatively that the order of the learned Magistrate was not a pr oper exercise of discretion of the power vested in him under section 540, Cr. P. C. Mr. Mohd. Ali, who appeared for the State submitted that the result of the inquiry under section 478, Cr. P. C. would be prejudiced, if the second respondent's father was allowed to give evidence, therefore, he submitted that the order of the trial Court should be stayed till the result of the inquiry as to whether evidence had been tampered with had been completed. On the other hand, learned counsel for the said respondent argued that the record of the case showed that the statement of the second respondent's father had been altered and tampered with, therefore, in the exercise of his powers under section 540, Cr. P. C. the learned Magisrate was entitled to summon the second respondent's father for examination a second time.
4. At the outset I have to observe that, as it is the case of the second respondent that the deposition of his father has been tampered with after it had been recorded and signed, the burden of proving this allegation is on the said respondent. In support of his application dated the 28th February 1966, Sakhavat Hussain, Police Inspector Prosecution has filed an affidavit and in para. 4 of this affidavit he has said that he had examined the second respondent's father in the Criminal Case (No. 203 of 1965) and what the second respondent's father actually stated was ns follows :-- "That I had gone to Hyderabad, on 15-5-64 where I fell seriously ill and remained under treatment of doctor till 25-5-64. 1 produce his certificate Exh. P. P. The partnership with the accused was dissolved verbally on 15-3-64 and went to his own shop. T bad again gone to Hyderabad on 29-5- 64."
He has further alleged that instead of the statement quoted above, the deposition contains the following :-- "On account of difference between me and Bashir Ahmad the partnership was dissolved on 21-5-
64. Bashir Ahmad paid me Rs. 15,000 on 10-4-64 and promised to pay me the remaining amount of Rs. 5.000 on 15-6-64 which promise has not been fulfilled by him. It is because the possession of the office was not delivered to him. Bashir Ahmad left my office and went to his own shop. I had gone again to Hyderabad on 27-5-64."
According to Sukhavat Hussain, the second respondent's father had never made the statement which I have just quoted, and in support of his contention that the record had been tampered with, Sukhavat Hussain has further stated in para. 5 of the affidavit as follows:-- "That on inspection of the file I have found that the first leaf of the statement which was type written has been practically substituted to bring in the changed statement."
The difference between the two statements attributed to the second respondent's father is very material. But if as contendedl by the second respondent, the record of the case has been! tampered with so that the deposition recorded was surreptitiously altered after his father had signed his deposition, the Court would be entitled under section 540, Cr. P. C. to summon the second respondent's father again for examination. On the other hand, it is also settled law that section 540, Cr. P. C. is not available to enable a party to fill up the gaps in his case and to improve it by recalling a witness. Therefore, in the instant case the question whether the second respondent entitled to recall his father for examination depends entirely on proof of the allegation that the evidence of the second respondent's father had been surreptitiously and illegally tampered with after it had been recorded and signed. Unless it is held that the evidence was so tampered with, the further examination of the second respondent's father could prejudice the case of the first respondent. Therefore the Prosecuting Inspector acted very correctly and according to law in filing an application on 18th July 1966 that the Court should hold an inquiry under section 476, Cr. P. C. on the allegation that its records had been tampered with. It is also obvious that if the evidence of the second respondent's father is taken again before the enquiry is concluded it might prejudice the outcome of that enquiry; and on the other hand, unless the enquiry establishes that the record of the case has been tampered with, the Court has no power under section 540, Cr. P. C. to re- examine the second respondent's father.
5. Accordingly, the view of the learned Sessions Judge that the order of the learned Magistrate dated the 22nd November 1966, recalling the second respondent's father for examination be quashed is correct and according to law. The reference is allowed and the said order is quashed.
However, if the enquiry under section 476, Cr. P. C. establishes that the evidence of the second respondent's father was tampered with and altered, after it was recorded in the Court, the prosecution will be entitled to apply for the examination of the second respondent's father. .