'Two cross-cases F.I.R. No, 74, dated 7-7-1986 under section 324/34, P.P.C. And F.I.R. No,72 of the same date under section 302/307/34, P.P.C. Have been registered in Police Station Ghazi.
2. Iman Hanif petitioner is complainant in F.I.R. No,74 while he alongwith others is accused in F.I.R.
No,72. In both these F.I.Rs, Hashim Khan son of Yousaf Khan has been named as eye-witness of the occurrence. This Hashim Khan was examined in Court as P.W. In case F.I.R. No, 72 but was abandoned by the prosecution in F.I.R.
74. Tufail accused-respondent No,1 applied under section 540, Cr.P.C. In the trial Court that the said witness should be examined as a court-witness, as according to him his evidence was essential for just decision of the dispute involved in both the cases. This application was accepted by the trial Judge on 25-2-1989 which has been impugned in this revision petition.
3. Mufti Muhammad Idris the learned counsel appearing for the petitioner criticised the order on the ground that the prosecution evidence has not so far been examined and, therefore, this order of summoning Hashim Khan as Court-witness is entirely premature; that the discretion has not been exercised in accordance with sound legal principles and that in the circumstances of the case this order will clearly prejudice his client. To strengthen his stand reliance was placed on PLD 1968 Lah.
437.
4. There is no denying the fact that Hashim Khan has been named as eyewitness in both the reports. His deposition in the case is, therefore, very important for just and correct decision. In such a state of record it is obligatory on the Court to summon and examine him under the latter part of section 540, Cr.P.C. Which says, 'and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it essential to the just decision of the case'. This objection that at the time when the prosecution has not yet started recording evidence, the summoning of this witness would he premature could be of no avail as the trial Judge would not decide the case merely on the evidence of this witness rather he would consider the evidence of this witness along with the statements of the other witnesses examined in the case and would then judge its evidentiary value and would adopt that which appears to he truthful and reliable. In such an eventuality it would not matter if Hashim Khan is examined in the beginning or in the end. It is primary function of the Court to ascertain the correct factual position and to endeavor to collect all relevant evidence to enable it to arrive at a legal and impartial decision. It would not be fair for a party to construe this effort of the Court as leaning in favor of a party as against other, nor a party would be justified to consider this effort as prejudicial to his interest or biased. If the facts of the precedent case are perused then this would be manifest that it is entirely distinguishable and cannot be made applicable to the instant case.
5. This revision petition is without any substance and is dismissed in limine. .