'In a murder case, arising out of F.I.R. No, 24, dated 7-4-1986, Police Station Battal, during its investigation, confessional statement of one of the three accused, viz. Bashir son of Muhammad Ayub was recorded by Mr. Ghulam Rasool Khan, Magistrate 1st Class, Mansehra on 9-4-1986. The report under section 173, Cr.P.C. In the form of complete challan was submitted before the learned Additional Sessions Judge, Mansehra for taking cognizance of strangely enough although the confessional statement is placed on the file as mentioned in the list of documents, yet the name of the learned Magistrate, who recorded it, was omitted from the list of witnesses for prosecution.
2. The trial, however, commenced and it was at the fag-end thereof that the prosecution realized the omission of the confessional statement as having not been put in evidence nor the Magistrate, who recorded it, is summoned as to formally prove the same. An application was, therefore, moved on 2-9-1986 before the learned trial Court to summon Mr. Ghulam Rasool the then Magistrate 1st Class, Mansehra, now posted at Peshawar, as prosecution witnesses.
3. After hearing the learned counsel for both the prosecution as well as the defence, the learned Sessions Judge, Manschra, vide his order dated 30-5-1986, turned down the request of the prosecution and declined to summon the witness. Hence this revision petition.
4. I have heard Qazi Shamsud Din, Advocate learned counsel for the petitioner and Muhammad Akbar Khan Swati, Advocate learned counsel for the accused-respondents as also Muhammad Aslam Khan, learned Assistant Advocate-General for the State.
5. It is contended on behalf of the petitioner that the impugned order of the learned Sessions Judge is not in accordance with the law in that it offends the provision of subsection (2) of section 265-F or, that matter, what is provided in section 540 of the Cr.P.C. The learned counsel for the accused- respondents, resisting the petitioner, however, maintained that this application is premature in so far as the compliance of the provision of section 265-F(2), Cr.P.C. Is concerned because that stage is yet to reach and that a prayer can be made in this regard to the trial Court at the close of prosecution evidence. Regarding section 540, Cr.P.C., he submitted .That it is only when the Court is satisfied towards the evidence of a person which appears to be essential for the just decision of the case that a duty is cast upon it to summon him as a witness, which according to him, is not the case in the circumstances. He also contended that by this measure, prosecution wanted to fill up the gap to which the learned trial Court rightly refused to become a party.
6. I have given my serious consideration to the submission made by the learned counsel for the parties. I feel, that the first contention of the learned counsel for the accused-respondent is misplaced. The plain reading of subsections (1) and (2) of section 265-F of Code of Criminal Procedure indicates that at the first instance the Court is required to 'examine all such witnesses as are produced by the prosecution in support of its version'. Addedly, the Court is further required to ascertain from the Public Prosecutor 'the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution and shall summon such person to give evidence before it'. It is not A simply a procedural provisions, but manifest a positive intent in advancing the cause of justice for meeting precisely such situation as we are confronted with in that if any material evidence is left out, for whatever motive, the Court, with the assistance of the State counsel, admit it in evidence at any later stage and summon a witness in this regard.
The application made in the instant case to summon the Magistrate who recorded the confessional statement of accused-respondent Bashir can legitimately be construed as having invoked the powers of the Court under subsection (2) of section 265-F, Cr.P.C.
7. It is heartening to note that with the enforcement of Law Reforms Ordinance, 1972, the law relating to meet such a situation squarely, has undergone a healthy improvement inasmuch as apart from and supplementary to a provision as embodied in section 540, Cr.P.C., before the conclusion of the trial, as per subsection (2) of section 265-F (ibid) a duty is cast upon the Court to bring such additional evidence on the record as may render it due assistance to arrive at a justifiable decision. It would be pertinent to note that at the same time a safeguard is provided for the accused facing a trial under subsection (3) of section 265-F (ibid) whereby the Court can 'refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice....".
8. In fact the scheme of newly-added Chapter XXII-A, comprising of section 265-A to section 265- N, and particularly section 265-F, is to ensure a fair trial not only to the accused but also to the prosecution or, as the case may be, the complainant in administering justice in criminal matter and to remove the misconception that a fair trial means such steps and measures as are to the advantage and benefit of an accused person only. These newly-added provisions in Cr.P.C. On the other hand, are rather in conformity with the principle, that justice should be administered in criminal cases, between the complainant/prosecution and the accused person evenly, for, it should not be forgotten that it is the prosecution/complainant who sets the ball rolling to restore tranquillity in the society and for seeking relief against excess allegedly done by the accused, and as such knocks at the door of the Court of justice, for a fair trial. A plain reading of the aforementioned provisions, reflect the same view in that it is the right of both the parties to have a fair trial and no tilt in favour of either.
9. On more or less similar lines but more comprehensive is the provision as contained in section 540, C.P.C. Relating to powers of the Court to summon material witnesses at any stage of the trial. It postulates two situations. One, to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall, or re-examine any person already examined. And two, to summon and examine or recall and re-examine such person if his evidence appears to it essential to the just decision of the case. It is pertinent to note that while, in the former situation, it is a matter of discretion with the trial Court to take action, in the latter one, it is obligatory on the Court to summon such witness, subject to the sole condition that it should appear to the Court essential for the just decision of the case.
10. The question thus arises as to what shall be a judicial and judicious criteria to adjudge the requisite essentiality of such evidence in a given case. Looking at the legal provisions itself, the expression appears to it in the latter part of section 540 provides an adequate indication that even in case of facing a situation where it is rather difficult to arrive at a decisive conclusion relating to a piece of evidence whether it is or is not essential, it ought to, at least, 'appear' to the Court that it is essential. This exercise, however, would not require the Court to hold an independent inquiry so as to reach such conclusion. Enough would it be, if the Court examine the material available on the record of the judicial file or in the police diary or, which has not so far been brought on the record or is C admitted in evidence and from the perusal of such record if it 'appears to it' that the said piece of evidence might be essential for the just decision of the case or, in other word, it gives rise to a state of doubt, the benefit thereof must be given in 0 favour of holding it as essential to the just decision of the case. Once it is held so, the Court then will be under a legal obligation to summon the requisite witness in this behalf.
11. Finally comes the contention of the learned counsel for the accused-respondent that an action under section 540, Cr.P.C. Would amount to filling the gaps in the prosecution version and evidence recorded in support thereof. This proposition is not only devoid of any force but is misconceived also in so far as the second part of section 540, Cr.P.C. Is concerned. There exists no clog or contingency while following it, for, once the requirement of law pertaining to the essentiality of a piece of evidence for the just decision of the case is fulfilled, the Court is left with no discretion in this behalf and it is obligatory on it to admit the evidence thereunder. It will be acting in accordance with the dictates of law as embodied in section 540, Cr.P.C. Raising thus such theory of the so-called filling of the gaps would tantamount to creating improper impediment in the way of a Court to perform its duty under the command of law.
12. I am, therefore, clear in my mind that while under the first part of section 540, Cr.P.C. a Court while summoning the additional evidence will exercise its own discretion in the given circumstances of a case; under the latter F part of it, once it arrives at a conclusion that piece of evidence is essential for the just decision of the case, it has no option but to admit such evidence and summon the witness in this regard; nor any limits can be placed on the Court in exercising its powers which are obligatory in nature.
13. Reverting to the merits of the matter in issue in this revision petition it may be borne in mind that the confessional statement is always a very important piece of evidence in criminal trial, which, if inculpatory in nature and is proved to have been made by an accused voluntarily, and recorded in strict compliance of law in this behalf, can form a strong basis to bring home the guilt to the accused and conviction founded thereon. It can, therefore, legitimately be presumed as an essential piece of evidence for the just decision of the case and in this regard the application for summoning Mr. Ghulam Rasool as P.Ws. To prove it, was legally justified, absence of his name in the list of P.Ws. Notwithstanding.
14. Viewed the facts of the case in the context of the legal proposition as stated above, the piece of evidence called the confessional statement of the accused Bashir to be laid before the Court in order to arrive at a just decision of the case can hardly be disputed. Irrespective of its judicial nature, which lies within the province of the trial Court to assess, it cannot be denied that it is a piece of evidence which should always be before the Court to consider it against or for the accused in the light of laid down and established principles of acceptance or rejection thereof.
Such a situation certainly warrants a positive action on the part of trial Court in summoning the author of the same as a witness for prosecution.
15. In this view of the matter, I am afraid, the impugned order of the learned Sessions Judge seems to be exceptional and liable to be set aside. I have, therefore, no hesitation in holding that the summoning of Mr. Ghulam Rasool, as a witness for prosecution, to prove the confessional statement he recorded in his capacity as a Magistrate during the investigation of the case, has rightly been claimed by the prosecution and its denial by the learned Sessions Judge is not in conformity with and is rather violative of subsection (2) of section 265-F as also section 540 of the Code of Criminal Procedure.
16. Consequently I allow this revision petition, set aside the impugned order of the learned Sessions Judge, Mansehra and direct that the application for H summoning Mr. Ghulam Rasool as witness for the prosecution be deemed to have been accepted.
17. Let the record of the case be returned to the learned Sessions Judge, Manschra immediately so as to enable him to summon Mr. Ghulam Rasool as witness for the prosecution and conclude the trial in a reasonable time.