Facts necessary for decision of this petition are briefly stated below For the murder of A. S. I.
Muhammad Akram a case under sections 302, 332 and 353 read with section 34, P. P. C. And section 14 of Ordinance VI of 1979 was registered at Police Station, Wahdat Colony, Lahore vide F. I.
R. No. 180, dated 11-6-1986 at the instance of Inspector Anis-ur-Rehman. The police undertook investigation and challaned Muhammad Bashir, Zahid, Tariq Mubeen and Tahir Mahmood accused to face the charges. The learned Sessions Judge, Lahore who was seized of the matter completed recording of prosecution evidence on 19-1-1987. He examined Ch. Ghulam Rasul Qureshi as Court witness on 1-2-1987. The statements of accused under section 342, Cr. P. C. Were recorded on 14-2- 1987. The prosecution thereafter, concluded its arguments. The case was being argued on behalf of the accused when on 25-2-1987 an application on behalf of the accused was filed with a prayer that bullet lead P. 2 recovered from the dead body of Muhammad Akram be sent to the Director Forensic Science Laboratory for comparison with .455 bore revolver Exh. P.
25. This application was contested by the complainant. The learned Sessions Judge, Lahore vide the impugned order dated 26-2-1987 accepted the application and ordered that the bullet lead Exh. P. 2 along with revolver Exh. P. 25 and 7 M. M. Rifle Exh. P. 21 be sent to Director Forensic Science Laboratory, Lahore through a special messenger for necessary comparison and examination. This order was recorded after a conclusion that "the question whether the lead bullet P. 2 was fired from this or that weapon has a material bearing on the facts of the case and the report of the expert will, therefore, be helpful in securing the ends of justice". The learned Sessions Judge was of the opinion that "even if there be any doubt as to the application of section 540, Cr. P. C. There is the residuary section 561-A of the Cr. P. C. Which gives wide powers to the Court to make such orders as may be necessary to give effect to any order under this Code or to prevent the abuse of the process in Court or otherwise to secure the ends of justice". The learned counsel appearing on behalf of the respondent No. 1 has placed on file of this petition an unattested copy of the report of Director Forensic Science Laboratory which states that the crime bullet (1'. 2) being of .455 bore could not be fired from a weapon of 7- M. M. Bore and secondly that the crime bullet of .455 bore was examined and compared with the revolver P. 25 but no definite opinion could be expressed because of insufficient characteristics.
2. I have heard the learned counsel appearing on behalf of the parties at length.
It may at the outset be pointed out that the inherent powers under section 561-A, Cr. P. C. Could be exercised only by the High Court and not by Sessions Judge or other subordinate Courts. This legal proposition' was not controverted by all the learned counsel appearing for the parties. As such the impugned order dated 26-2-1987 could not be considered as an order under section 561-A, Cr. P. C.
Nor the learned Sessions Judge had any power to invoke inherent jurisdiction under the said provision of law.
Section 540, Cr. P. C. Is divided in two parts. One where power is only discretionary for Court to summon a Court witness suo motu or on application and second where it was mandatory for Court to do so. If the Court after considering facts of a case comes to the conclusion that "the evidence appears to it essential to the just decision of the case, it will be obligatory under section 540, Cr. P. C. To summon and admit the said evidence". It was held in Muhammad Azam v.
Muhammad Iqbal (1) that :`some time apprehension is expressed that any action by the trial Court under section 540, Cr. P. C. Would amount to fill in the gaps and omission in the version or evidence of one or the other party. It may straightway be observed that in so far as the second part of section 540, Cr. P. C. Goes, it does not admit any such qualification. Instead even if the action thereunder is of the type mentioned, the Court shall act in accordance with the dictates of the law.
In fact the Court has no discretion in this behalf. It is obligatory on it to admit the evidence thereunder if it is essential for the just decision of the case". It was contended on behalf of the petitioner that under section 540, Cr. P. C. a Court could summon and examine or recall and re- examine a PERSON only but could not order examination of bullet lead for -comparison with a weapon. It was, therefore, argued that the impugned order was illegal and is likely to materially affect the merits of the case. The learned counsel for the respondents controverted the above contention. It was argued that the report of Director Forensic Science Laboratory was admissible without formal proof under section 510, Cr. P. C., secondly that the parties in a case or the Court itself could summon the Fire Arm Expert for evidence and cross-examination in Court and thirdly, that the Fire Arm Expert could not have been summoned without examination/comparison of the bullet lead and the weapon. It was finally argued that for just decision of the case the evidence of Fire Arm Expert was essential. 1 have considered the respective arguments advanced by the parties in this petition. It is correct that in section 540, Cr. P. C. Only the word PERSON has been used. This would not mean that the l Court had no power to order comparison of bullet/crime empties with
(1) .P,L 1) 1984 S C95 weapon by a Fire Arm Expert. It was not controverted by learned counsel for the petitioner that the learned Sessions Judge had the powers to summon Director Forensic Science Laboratory for examination during trial in Court. If this situation is conceded then it is apparent that Director Forensic Science Laboratory would not have been in a position to make any statement in Court. He could have been required to make statement only with regard to some report prepared by him. It was, therefore, necessary for the learned trial Judge to order examination of bullet lead P. 2 with the two weapons. The report of Fire Arm Expert was admissible under section 510, Cr. P. C. The Director Forensic Science Laboratory could be summoned either by the Court itself or at the instance of the parties for cross-examination during trial. I am, therefore, of the view that the impugned order was not illegal or without lawful authority. The learned Sessions Judge bad the jurisdiction to pass the impugned order under section 540, Cr. P. C. This view is supported by the judgment in Ibrahim alias lbro v. The State (1). In Ibrahim's case the learned trial Judge took the evidence of Finger Print Expert after the close of prosecution evidence and after the statements of accused under section 342, Cr. P. C. Had been recorded. It was held by their Lordships that "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". Relying on Ibrahim's case it was held in Zamir Ali Shah v. Azhar Harder Shah and another (2) that Court was "under duty to examine fresh evidence at any stage of proceedings if such evidence was essential to just decision of the case". The facts in case of Zamir Ali Shah were that in a trial under section 302, P. P. C. The learned trial Judge directed examination of the accused by a Radiologist for determination of his age. This order was challenged before High Court in revision. It was held that 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 trial even though he had not been summoned before. In the instant case the learned Sessions Judge came to the conclusion that "the question whether the lead P. 2 was fired from this or that weapon has a material bearing on facts of the case and the report of the expert will, therefore, be helpful in securing the ends of justice". In view of this conclusion, it was obligatory on the learned trial Judge to refer the matter for examination to the Director Forensic Science Laboratory. The learned counsel argued that finding of the learned Sessions Judge that the report of the expert will be helpful in securing the ends of justice was not correct. I have examined this question. The learned Sessions Judge while hearing arguments on behalf of the accused noticed that bullet lead .455 bore Exh. P.
2, was recovered by the medical officer from the dead body of Muhammad Akram deceased. The argument advanced on behalf of the accused was that the said bullet belonged to the revolver of the deceased himself. The learned trial Judge, therefore, rightly came to the conclusion that it was essential to the just decision of the case to get the bullet lead P. 2 examined and compared with the revolver P. 25. 1, therefore, do not find any illegality in the impugned order.
It was stated by the learned counsel for petitioner at the Bar that the bullet lead P. 2 was produced in Court on 28-9-1986. Its sealed parcel was opened. It was then sent back to the Malkhana without resealing. The application for examination was filed in Court on 25-2-1987 and as such
(1) 1968 SCMR 1240(2) 1984 P Cr. L J 1923 there was possibility of tampering with of the bullet lead P.
2. It was, therefore, argued that the report of the Director Forensic Science Labora--tory, being valueless, could not be said to be essential to the just decision of the case. I need not express any view on this contention. It will remain open for any of the parties to challenge the report of the Director Forensic Science Laboratory on any ground before the learned trial.Judge.
In view of the above discussion I find no merit in this revision which is accordingly dismissed.