ZAFFAR HUSSAIN MIRZA,J.--This petition for leave to appeal seeks to call in question order, dated 12th October, 1986, whereby the learned Chief Justice of the Peshawar High Court, Peshawar, accepted the criminal revision filed by Ch. Abdul Rashid, respondent No.2 herein, and while setting aside the order of the trial Court, dated 21st March, 1985, directed that the cheque (the document disallowed to be produced in evidence) be exhibited as "case property" and all the prosecution witnesses named in the application, dated 23rd January, 1985, be examined in that behalf.
2. Briefly the facts are that on the information lodged by respondent No-2, a case under section 420/468/471, P.P.C. Was registered and the petitioners were sent up to stand trial in the Court of F .
C . M. , Peshawar. The allegations contained in the information lodged against the petitioners, as reflected in the order of the High Court, are that the petitioners had purchased some goods comprising sanitary ware from respondent No.2 and towards the payment thereof had given him a cheque No.760324 CD/25D on the Allied Bank of Pakistan, G.T. Road, Peshawar,. For Rs.99,417. It was alleged by respondent No.2 that when he presented the cheque to the bank for encashment the same was dishonoured on the ground that the petitioners have no funds in the said bank.
3. In support of the prosecution a number of witnesses were examined and on 16th June, 1983, the P.S.I. Incharge of the prosecution made a statement in writing closing the evidence of the prosecution. However, it appears that on the same day the P.S.I submitted an application for summoning one Abdul Hashim as Court-witness. This application was subsequently dismissed by the Court by order, dated 21st July, 1983, on the ground that this witness was not examined during the investigation although his name transpired therein and, therefore, in the opinion of the Court this was a lacuna which cannot be filed by summoning the witness as Court witness.
4. Being aggrieved by the aforesaid order refusing to call the additional witness respondent No.2 challenged the same in a revision (Criminal Revision No.8 of 1983) which was dismissed by the learned Additional Sessions Judge II, Peshawar, by his order, dated 27th October, 1983. In this order the learned Additional Sessions Judge, agreed with the view taken by the trial Court that the witness was being sought to be examined in order to fill in the lacuna in the prosecution case.
5. Thereafter, the statement of the accused was recorded on 21st December, 1983, under section 342, Cr.P.C. And the case was adjourned for final arguments. It appears that on a subsequent date after the final arguments were heard by the Court the P.S.I. Once again submitted application for summoning Riaz Ahmad a marginal witness of the recovery memo. In respect of the cheque. This application was also dismissed by the Court by order, dated 14th February, 1984, on the ground that as this witness was deliberately given up by the prosecution and the case was closed, it would not be reasonable to examine this witness at that stage. Finally a third attempt was made by fresh application requesting to examine Zahir Gul handwriting expert who had also been already abandoned by the prosecution. In this connection it will be relevant to reproduce the case diary for this date:--- "3-5-1984, Accused as before present. Counsel for the accused requests for adjournment. Put up for arguments on 17-5-1984.
(Sd.) MIC/Peshawar PI Crimes Branch submitted as application that P.Ws. Zahir Gul and handwriting expert are to be submitted as a witness. The application is allowed and the witness may be examined on the said date. "
The case was being adjourned for recording the evidence of the handwriting expert, when on 20th June, 1984, on behalf of the petitioners' objection was raised to the examination of the witness as he had already been abandoned. The learned Magistrate then took up the matter to examine the question whether the handwriting expert should be summoned as a Court witness or not. He noted that in this connection the application was made on 3rd May, 1984, and on this application the Court had ordered that it may be placed on file. However, in the order-sheet it was directed that the witness may be summoned. Thereafter as stated above objection was raised by the defence to the passing of the said order. The learned Magistrate observed that the expert was intended to be examined in connection with the cheque which was the subject matter of the alleged fraud said to have been issued by the petitioner (accused), but the prosecution had not produced the cheque in the evidence. In this view of the matter in the absence of the cheque being on the record, the learned Magistrate held that it will be futile to summon the witness and accordingly rejected the request for examination of the witness vide order, dated 30th October, 1984. It is common ground that this order was not challenged in any proceeding in any higher Court.
6. The last and ultimate attempt by the prosecution was made on 23rd January, 1985, when the P.S.I. Submitted yet another application under section 540, Cr.P. C. In which prayer was made for examination/ re-examination of the following witnesses:-
(1) Mr. Nawab Khan, I.O.
(2) Mr. Mumtaz Khan, I.O .
(3) Mr. Zahir Gul, Handwriting Expert, Peshawar.
(4) Mr. Abdul Hashim II Officer, Allied Bank.
(5) Mr. Muhammad Riyaz Agent of the Complainant, Chowk Fawara, Rawalpindi. "
It was stated in this application that "certain documents" such as cheques etc. Are to be exhibited through them". It may be pointed out that two of the witnesses, sought to be called, namely, Mr. Zahir Gul, Handwriting Expert and Mr. Abdul Hashim, Officer, Allied Bank, were the same witnesses in whose regard the request of the prosecution had already been turned down. Having regard to the background of facts as stated above the learned Magistrate came to the conclusion that it will not be proper to allow these witnesses to be examined or any documents to be produced.
7. Being aggrieved by the last mentioned order respondent No.2 filed a revision petition in the Peshawar High Court, Peshawar, which was accepted as already stated by the impugned order in this petition.
8. We have heard the learned counsel for the petitioners as well as the learned counsel appearing for the State on Court notice and the learned Counsel for respondent No.2/caveator. In support of the petition the main point urged was that the impugned order before the High Court in the criminal revision was passed on an application when similar requests had been rejected several times by the trial Court and a revision petition was also dismissed refusing the prayer by the Court of Sessions. The submission was that in view of these circumstances the prayer made by the complainant was barred by the provisions of law. On the other hand the learned counsel appearing for the respondents supported the order of the High Court and argued that the order was passed properly in the interest of justice in order to prevent miscarriage of justice arising from the misconception of law by which the trial Court had refused to allow the material evidence from coming on the record.
9.After hearing the arguments of the learned counsel, we, however, find certain aspects of this case which are of particular significance. Having regard to the language of section 540, Cr.P.C. It is clear that the section gives very wide powers to the Court to examine any witness as a Court witness at any stage of the case. It is needless to emphasise that this discretionary power of such amplitude has to be exercised with caution and circumspection in accord with the provisions of the Criminal Procedure Code and general principles of criminal law. The Court must guard against the exploitation of this power by parties who had ample opportunity to produce evidence within their knowledge and must not put one of the parties in a position of advantage via-a-via the other. The guiding principle is always what the ends of justice demand. We would not dilate on the scope of section 540, Cr.P.C. As the principles regulating the discretion thereunder are well-settled by this Court.
10. However, from the facts narrated herein above we were confronted with certain questions of law touching the jurisdiction of the High Court in passing the impugned order. In this connection, it may be pointed out, as observed by the High Court that the main object of the prosecution in their repeated attempts for summoning additional evidence was to produce on record the alleged cheque issued by the petitioners on which the entire prosecution case appears to hinge and secondly to prove the alleged fact that this cheque was issued by the petitioners. The learned Chief Justice was also persuaded to allow the additional evidence in order to permit the prosecution to exhibit the cheque in evidence and examine the witnesses in that connection. Now the question of jurisdiction which arises in this case is whether on the refusal of the Court to allow the first request, so far as the Court passing the order is concerned it became functus officio and the matter stood concluded so that no fresh application for the same purpose could be entertained. As stated earlier the request for producing evidence after the close of the prosecution case was made substantially for the same purpose and this application was dismissed by the trial Court for the first time on 21st January, 1983. The same prayer seems to have been repeated through various applications, details whereof have been narrated above, which were refused one after the other.
This Court in Amiruddin v. The State and another PLD 1977 SC 602, expressed the view that although an order on a bail application does not amount "to a judgment" under section 369, Cr.P.C., the general principle of finality of judgment would attach to the decisions or orders of the High Court passed in criminal cases and it is only in rare and exceptional cases that the High Court has inherent power to revoke, review or alter its own earlier decisions. Therefore, the question was whether the orders of the trial Court passed on the applications prior to the last one out of which the present petition has arisen, were a relevant consideration while entertaining the prayer therein.
But a more precise objection as to the jurisdiction of the High Court has arisen in view of the provisions of subsection (4)(b) of section 439, Cr.P.C. There is a bar on the power of the High Court to exercise its revisional jurisdiction with respect to an order made by the Sessions Judge under section 439-A, Cr.P.C. In other words if once revision has been dismissed by the Sessions Judge in respect o an order, the High Court would not be competent to examine the legality of the order passed by the Sessions Judge, with the result that finality attaches to such an order. In the present case it appears that a revision application was filed before the Sessions Judge against the order of the Court, dated 21st July, 1983, which was dismissed and the learned Sessions Judge held that the request for summoning additional evidence was for the purpose of filling up lacuna in the prosecution case. The question was whether by the device of repeating the request and adding some more witnesses for the purpose of summoning or recalling, a party could be allowed to bypass the provisions of subsection (4)(b) of section 439, Cr.P.C. By filing a direct revision as by adopting such a course it may perhaps be possible to substantially obtain the reversal of the revisional order passed by the Sessions Judge.
11. Learned counsel for the respondents have also pointed out that by order, dated 3rd May, 1984, the learned Magistrate had ordered the summoning of the handwriting expert and the same Court according to them, by the same token as discussed earlier, could not review the order by refusing to call the handwriting expert for examination on the objection of the accused.
12. In the foregoing circumstances we feel that some fundamental questions of jurisdiction arise in the present case, which appear to us not to have been brought to the notice of the learned Chief Justice nor the factual background which gives rise to these questions was pointed out to him. In the circumstances we are of the opinion that the case requires to be re-examined by the High Court in the light of all the circumstances and background facts so that the interests of justice are preserved and there is no abuse of the process of the Court.
13. We, therefore, convert this petition into an appeal and accept it. The result is that the impugned order of the High Court, dated' 12th October, 1986, is set aside and the case is remanded to the High Court for fresh decision in the light of the observations made herein above.