' AJMAL MIAN, J.---This is an appeal by leave of this Court against the judgment, dated 27-2-1990 passed by a learned Single Judge of the Peshawar High Court at D.I. Khan Bench, in Criminal Revision Petition No,14 of 1989 filed by the appellant, dismissing the same and maintaining the order of the learned Sessions Judge, Bannu, dated 28-10-1989 passed by him dismissing the appellant's application under section 540, Cr.P.C. Hereinafter referred to as the Code, summoning two eye-witnesses as Court-witnesses. Leave to appeal was granted to consider, whether section 540 of the Code has two parts, namely, first part being discretionary and the second part being mandatory.
2. The facts to be noted are that the appellant along with co-accused Niamatullah, Abdul Samad, Niaz Muhammad, Fida Muhammad and Mustafa Kamal, are charged under section 302/307/148/149, P.P.C. Pursuant to F.I.R. No,169 dated 12-7-1983 registered at the Police Station, Cantt. Bannu, and are facing trial before the learned Sessions Judge, Bannu. In the calendar of witnesses, six witnesses were named as eye-witnesses. It appears that the prosecution gave up Abbas Khan, a Pesh Imam of a mosque, and Noor Iqbal Shah, another eye-witness, both of them were named in the F.I.R. On the ground that they were won over by the defence. Thereupon, the appellant filed aforesaid application under section 540 of the Code for summoning of the above two eye-witnesses as Court-witnesses, which application was declined by the learned Sessions Judge, Bannu, vide aforesaid order dated 28-10-1989 by observing that "No doubt the Court has got unfettered powers to examine any witness at any stage of the trial but at this stage I do not deem it necessary to examine Abbas Khan and Noor Iqbal Shah as Court-witnesses. The defence is at liberty to examine them as defence witnesses if they so desire. The application for summoning Abbas Khan and Noor Iqbal Shah stands rejected at this stage".
3. After rejecting the appellant's above application the learned Sessions Judge proceeded to examine the appellant under section 342, Cr.P.C. And thereafter the case was listed for arguments for 5-11-1989. Against the above order, the appellant filed aforementioned criminal revision petition which was dismissed by a learned Single Judge of the Peshawar High Court by the judgment under appeal, in which inter alia it has been observed that the word 'may' used in section 540 of the Code gives discretion to the Court to summon a witness and that the satisfaction of the Court that such evidence is essential to the just decision of the case is necessary. It has been further observed that the prosecution is not bound to produce all witnesses cited in the calendar of witnesses and that it cannot be said that the trial Judge's order refusing to summon the witness is illegal or amounts to refusal to exercise his jurisdiction so as to warrant interference. Thereupon, the appellant filed a petition for leave, which was granted by this Court to consider the above question.
4. In support of the above appeal, Mr. Abdul Aziz Kundi, learned Advocate Supreme Court appearing for the appellant, has urged that both the Courts below have not taken into consideration the factum that section 540 of the Code has two parts, the first part being discretionary and the second part being mandatory, and that they have also failed to apply their mind to the basic question, namely, whether the evidence of the two eye-wtinesses who were sought to be summoned as the Court-witnesses, was necessary for the just decision of the case or not and if it was so, the appellant's case fell under second part of section 540 of the Code, which enjoins the Court to summon such witnesses by employing the word 'shall' in place of the word 'may' which has been used in the first part of the above section.
' On the other hand, Mr. K.G. Sabir, learned Advocate Supreme Court appearing for the State, has contended that since the other eye-witnesses were examined, the learned Sessions Judge was not bound to grant the appellant's above application under section 540 of the Code and that if the practice of summoning the eye-witnesses, who have been won over by the defence, is to be encouraged, it will frustrate the prosecution.
5. In order to appreciate the above contentions, it may be pertinent to refer to section 540 of the Code and some of the case-law on the interpretation of the same. It may be advantageous to reproduce the above section 540, which reads as follows:-- "540. Power to summon material witness or examine person present. --Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case."
6. A plain reading of the above section indicates that it has two parts, the first part empowers every Court at any stage of any inquiry, trial or other proceeding under the Code to summon any person as a witness or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined, whereas the second part of the above section enjoins the Court to summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. In other words, the first part of the above section by using the word 'may' confers discretion on the Court, whereas the second part of the section by employing the word 'shall' makes it obligatory on the part of the Court to summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case.
' It may be observed that the word 'may' in certain circumstances if the context in which it has been used so demand, can be construed as 'shall' and the word 'shall' can be interpreted as 'may'. But if in a particular provision of a statute the above two words are used, in that event the same would carry their normal connotation in the absence of any compelling admissible reason to construe them otherwise.
7. Having dealt with the above section, we may now revert to the case-law.
(i) Stephen Seneviratne v. The King AIR 1936 PC 289; in which section 540 of the Code was not an issue but the question, whether the prosecution was .Under an obligation to call every available witness, was dilated upon as follows:-- "It is said that the .State of things above described arose because of a supposed obligation on the prosecution to call every available witness on the principle laid down in such a case as 42 Cal. 422 (7), to the effect that all available eye-witnesses should be called by the prosecution even though, as in the case cited, their names were on the list of defence witnesses. Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so confusion is very apt to result, and never is it more likely to result than if the prosecution call witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the ease for the prosecution."
(ii) In re: Donald Dixon AIR 1938 Mad. 900; ' In the above case, a learned Single Judge of the Madras High Court whip: setting aside the concurrent judgments of the trial Court and the Additional Sessions Judge of convicting the petitioner for an attempt to commit murder, commented upon the duty of the two Courts below to examine an eye-witness, who was given up by the prosecution as Court-witness, as under:-- ... If Ramchandra Chetty had been examined at the trial and if his evidence had been to the same effect as in the committing Magistrate's Court, there can be very little doubt that the whole case for the prosecution would have been left in such grave doubt that the accused must have been given the benefit of the doubt and acquitted. The bearing of the omission to examine this witness during the trial on the question of the veracity of the only witness of the occurrence who was examined has not been appreciated by the Courts below. They appear to have thought that the only question for them to consider was whether it was the duty of the prosecution to have examined the rules, the Badaga and Ramachandra Chetty or not, and they did not consider whether it was not a part of their own duty to have them examined in order to arrive at the truth. There may be some doubt as to the duty of the Public Prosecutor in a case of this kind for the rulings on the point are not uniform though numerous, but there is a duty cast upon the Court to arrive at the truth by all lawful means and one of such is the examination of witnesses of its own accord when for certain obvious reasons neither party is prepared to call witnesses who are known to be in a position to speak to important relevant facts."
(iii) Ghulam Rasul v. The State PLD 1960 (W.P.) Lah. 48; ' in which a Division Bench of the erstwhile High Court of West Pakistan at Lahore, while upholding an appeal against the conviction of the appellant and ordering of retrial, has touched upon the question, as to whether in case of refusal on the part of the Public Prosecutor to examine certain eye-witnesses mentioned in the First Information Report, it was the duty of the Court to have examined them as Court-witnesses, and made the following observation:-- ... As a general rule, the prosecutor is bound to call all eye-witnesses who are mentioned as such in the first information report unless he has some very strong reasons to believe that the witness if called would not speak the truth, or is unnecessary, or is an accomplice himself. The mere statement of the Public Prosecutor, not supported by any material upon the record that the witnesses were won over by the accused, would not absolve the prosecution to produce material witnesses mentioned in the first information report. If, however, the Public Prosecutor refuses to examine such witnesses, then a duty is cast upon the Court to call those witnesses as Court- witnesses and afford opportunity to both the accused and the prosecution to cross-examine them.
Failure to examine the witnesses mentioned in the first information report as having seen the occurrence, or who were able to give important information in the case, or had some connection with the transaction in question might very well lead to miscarriage of justice which should be avoided at all cost. I may, with respectful agreement, quote the following observations made by their Lordships of the Privy Council in Stephan Seneviratne v. The King AIR 1936 PC 289."
(iv) Mahboob Khan v. The State PLD 1979 Lah. 691; ' In the above case, a learned Single Judge of the Lahore High Court while allowing a criminal revision petition, directed the trial Court to examine two eye-witnesses, who were given up by the prosecution on the ground that they were won over by the defence, as Court-witnesses under section 540 of the Code and made the following observation:-- "5. There can be no cavil with the proposition that every person cited by the prosecution as a witness is not necessarily a material witness and that his evidence is not invariably essential for a just decision of the case. It is also true that the Court cannot and ought not compel a party to produce a witness who in the opinion of that party, is not likely to support its case. At the same time, however, the role of the Court is not limited to the examination of only such witnesses that a party chooses to produce, for it will be indicative of an unavoidable implication that only such evidence can be received at the trial which goes in favour of the party leading it. Administration of justice is the ultimate responsibility of the Court and it has to deliver the same in an even-handed manner. Examination as a Court-witness of a person cited as an eye-witness by the prosecution and abandoned by it often affords a fair and equitable chance to both the parties to cross- examine the witness after he has been examined-in-chief by the Court and no side is prejudiced in such a situation. However, if a witness for the prosecution is summoned in defence and he chooses to support the case for the prosecution, the defence is certainly prejudiced whether it is allowed to cross-examine him or such cross-examination is declined."
(v) Jewan and 9 others v. The State 1980 P Cr. L J 570; ' In the above case a Division Bench of the Lahore High Court, while dismissing a petition filed by some under-trial accused facing trial under section 302/307/148/149, P.P.C. Filed by them under section 439 of the Code questioning the legality of the order of the trial Judge summoning certain prosecution witnesses as Court-witnesses under section 540 of the Code, favourably commented upon the above order of summoning the witnesses as the Court-witnesses and pointed out distinction between the first part and the second part of section 540 of the Code as follows by placing reliance on the judgment in the case of Hansraj Harijiwan Bhate and others v. Emperor AIR 1940 Nag. 390:-- "Term 'Court-witness', generally associated with section 540, Cr.P.C. Is not a term of art. Under the first part of the section, Court may at any stage of any inquiry, trial... Summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and under second part, Court is obliged 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. Provisions of section 540, therefore, cannot be so interpreted as to defeat other provisions of the Code. A witness, notwithstanding that he is called and examined or recalled or re-examined under section 540, Cr.P.C. Retains his character as a prosecution or a defence witness, as the case may be. He will be a Court-witness simpliciter if he was cited neither a prosecution nor a defence witness. I am, therefore, inclined to hold that a given up prosecution witness if examined under section 540, Cr.P.C. Can be confronted with his police statement in terms of section 162, Cr.P.C.
(vi) Abdul Rashid v. The State 1980 P Cr. L J 1119; ' in which a learned Single Judge of the Lahore High Court allowed a criminal revision under section 439 against the order of the trial Court declining to sommon three independent witnesses who were examined by the police during the investigation and because of their statement, the petitioner's name was placed in Column 2 of the police challan and directed the trial Court to summon the above witnesses as the Court-witnesses, as their evidence was considered to be material for arriving a just decision in the case within the meaning of section 540 of the Code and failure of the trial Court to examine them as the Court-witnesses was held to have occasioned a miscarriage of justice.
(vii) Abdul Ghafoor v. The State and 2 others PLD 1983 Lah. 139; ' In the above case, a learned Single Judge of the Lahore High Court allowed a criminal revision against the order of the learned Sessions Judge, Bahawalpur, whereby during the trial of a murder case under section 302, P.P.C. The application of the Public Prosecutor and the complainant for receiving certain certified copies of public documents in evidence was rejected on the ground of delay and also for the reason that the same would amount to allowing the prosecution to fill a lacuna in the evidence, inter alia placed reliance on the following observation made by Aslam Riaz Hussain, J., sitting singly as a Judge of the Lahore High Court, in the case of Muhammad Sarwar Naseem v. The State 1973 P Cr. L J "The reason being that the main purpose of the entire judicial proceedings is to find out the truth, to arrive at a correct decision and to see that an innocent person is not punished merely because of certain technical omissions on his part or on the part of his counsel." and observed that the above statement of law, though made in the context of a case of an accused, would equally apply in so far as the case of prosecution was concerned.
(viii)Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; ' In the above case Muhammad Afzal Zullah, J. (as his Lordship then was) while sitting as the Chairman of the Shariat Appellate Bench of this Court, has held that the above section 540 of the Code has two parts, one where it is only discretionary for the Court to summon a Cout-witness suo motu or on application, and the second part where it is mandatory for the Court to do so and observed as follows:-- "This provision is divided into two parts: one where it is only discretionary for the Court to summon a Court witness suo motu or on application, and the second part where it is mandatory for the Court to do so. The main condition to be satisfied with regard to the second part is that the evidence to be summoned under this part should appear to the Court to be essential to the just decision of the case. As has already been observed the evidence in question relating to Nikah was undoubtedly essential for the just decision of the case. In the circumstances of this case the failure of the learned trial Judge to act under the said part of section 540, Cr.P.C. Has not only deprived the Appellate Courts of essential material for the just decision of the appeal, but has also occasioned miscarriage of justice. As would be presently seen, after the enactment of the new criminal law about abduction, marriage and sex-offences, the evidence regarding the question noted above has become all the more essential to be recorded, for just decision of these cases."
' His Lordship also inter alia observed that the observance of the rules of `avoidance to fill gaps' in the evidence which was essential for just decision would amount to negation of justice in general sense and would also contravene another rule that 'no party should suffer on account of mere technicalities'. It was further observed that the procedural law was not enacted to trap individual parties through technicalities and has to be interpreted always as acting in aid of justice and fair play.
(ix) Maulvi Hazoor Bakhsh v. The State PLD 1985 SC 233; in which also Muhammad Afzal Zullah, J. (as his Lordship then was) while sitting as the Chairman of the Shariat Appellate Bench of this Court, reiterated the principle enunciated in the case of Muhammad Azam v. Muhammad Iqbal and others (supra) and held that the trial Court should have examined the witness referred to therein as the Court-witness as he was essential for arriving at the just decision of the case and because of non-compliance of the mandatory provision contained in section 540 of the Code, serious prejudice had been caused to the accused. It would be advantageous to reproduce the relevant observations, which read as follows:-- "This witness (Sharif P.W.) after recording his statement at the trial against the appellant went away with the brother of the appellant (who was then in custody). He stayed away from home for some time and one day appeared in Court with the defence counsel to support a deposition made by him in a duly sworn affidavit disowning the entire prosecution version and making a statement favourable to the appellant. The learned trial Judge instead of acting under section 540, Cr.P.C.
(second part) and examining the boy straightaway, as it was an important development, started unnecessary argumentative clash with the lawyer on the assumption that the boy might have been coerced by the lawyer or his clients. Even if this were so he should have removed the boy to the neutral custody for some days before examining him. Instead he was again handed over to his parents to be brought again in Court. When he re-appeared he had by then changed his position for the third time, by making another volta face. On that the defence offered that the boy be handed over to any neutral agency and then examined under section 540, Cr.P.C. (second part) but the learned Judge refused it-- presumably, unfortunately though, on account of annoyance with the lawyer. A mandatory provision of law in second part of section 540, Cr.P.C. Was contravened without any justifiable cause. The decision of this Court in Muhammad Azam v.
Muhammad Iqbal and others PLD 1984 SC 95, is clear in that behalf.
' Coming to the effect of what is stated above, it is obvious that non-compliance with mandatory provision in section 540, Cr.P.C. Has in this case caused very serious prejudice to the accused."
(x) Muhammad Nawaz Khan v. Naiful Islam alias Kaifi and another 1986 P Cr. L J 2631; ' In the above case a learned Single Judge of the Lahore High Court, while dismissing a criminal revision petition against the order of the Sessions Judge setting aside the conviction recorded by the Magistrate and remanding the case to examine the injured eye-witness as the Court-witness, made following observation and placed reliance on the observations contained in the judgment reported as In re: Venugopal Mudaliar v. The State AIR (39) 1952 Mad. 509:-- "5. I have carefully considered the arguments raised at the Bar, but after anxious consideration, I am of the view, that none of these grounds would help the petitioner for the reversal of the order impugned. Abdul Rehman was an injured witness and after having been cited by the prosecution was given up because it was stated, that he had colluded with the petitioner/accused. In such circumstances a request by the accused to summon such witness could not be disallowed. It was the bounden duty of the learned Magistrate to have allowed such prayer to arrive at truth which is noble and sacred function of a Court while dispensing justice on the criminal side. There is no doubt, that by refusing to summon such witness the respondent had in fact been prejudiced. In this view of the matter, the learned Sessions Judge was justified in setting aside the conviction and sentence and in remanding the case to the trial Magistrate. The direction of the learned Sessions Judge to examine such witness as a Court-witness is also not open to exception, a witness who is given up by the prosecution has to be examined as a Court-witness to arrive at the truth. I am fortified in this view by the judgment reported as In re: Venugopal Mudaliar v. The State AIR (39)
1952 Mad.
509. Consequently, this revision petition fails and is hereby dismissed."
(xi) Mohsin-ur-Rehman v. The State and others 1986 SCMR 1687; ' In the above case this Court, while declining leave to appeal against the order passed by a learned Single Judge of the Lahore High Court in criminal revision petition dismissing the same against the refusal of the trial Court to summon some given up prosecution witnesses as Court- witnesses, made the following observation:-- "The petitioner is facing trial in a murder case. It had reached the argument stage when two given up eye-witnesses out of 5 were sought to be summoned by the petitioner as Court-witnesses. The request was declined on various grounds including that of late stage and delay. A learned Single Judge in the High Court also dismissed the revision petition filed by the petitioner on similar grounds. He has now sought leave to appeal.
' The learned counsel for the petitioner has relying on Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 contended that the evidence of the two given up witnesses was essential for the just decision of the case, therefore, the question of their summoning as Court-witnesses fell within second part of section 540 of the Criminal Procedure Code, thus the learned trial Court had no discretion but to summon them under the said second part.
' The argument is attractive, but, in order to accept the same there should be factual basis for assuming that the evidence of the two witnesses concerned was essential for the just decision of the case. No such plea was raised before the High Court, therefore, there is no such finding in the impugned judgment. That being so, we cannot entertain the plea at this stage."
' It may be pointed out that the above judgment was also rendered by Muhammad Afzal Zullah, J.
(as his Lordship then was), who also rendered the above two cited judgments of the Shariat Appellate Bench of this Court.
8. From the above-cited cases, it is evident that there appears unanimity of judicial view that section 540 of the Code has two parts, the first part confers discretion on the Court to summon and, examine or to re-call and re-examine a witness at any stage of an inquiry, trial or other proceeding under the-Code, whereas the second part makes it mandatory on the part of the Court to summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. It is also apparent that where a trial Court failed to give effect to the above mandatory provision contained in second part of the section 540 of the Code, the appellate/revisional Courts consistently interfered with the order/judgment and remanded the case to the trial Court with the direction to call and examine the witness or witnesses concerned as a Court-witness or witnesses. However, we may observe that though the prosecution is expected and is duty bound to call and examine witnesses essential to unfold the narrative on which the prosecution is based irrespective of the fact, whether in the result the effect of their testimony is for or against the case for the prosecution, but at the same time the prosecution is not expected and required to assume and discharge the functions and duties of both the prosecution and defence as observed by the Privy Council in the case of Stephen Seneviratne v. The King (supra). It must, therefore, follow that a trial Court is not bound to examine each and every eye-witness as a Court- witness in case the prosecution fails or refuses to call and examine a witness mentioned in the calendar of witnesses._ The question, whether a particular witness is to be called and examined as a Court-witness, will depend if the Court forms the view that his or her evidence is essential to the just decision of the case. Such an opinion is to be formed on the basis of appraisal of evidence already brought by the prosecution on recordand the factum what evidence, the witness sought to be examined as a Court-witness, is expected to give in view of his police statement or section 164, Cr.P.C.'s statement. The above mandatory provision contained in the second part of section 540 of the Code is to be pressed into service with care and caution, as it is intended and designed to achieve the basic object of a judicial proceeding i,e, to find out the truth in order to arrive at a just and correct decision, but at the same time it cannot be pressed in aid to demolish the prosecution case, which is otherwise proved by other reliable evidence. The Courts cannot be unmindful of the factum that with the passage of time the values in our society have changed. In our Holy Qur'an, Allah has repeatedly commanded at various places his believers to appear as witnesses even inter alia against their own parents. It will suffice to quote English translation of the verses of the Holy Qur'an from Sura Aal-e-Imran, which reads as follows:-- "On ye who believe: stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kind, and whether it be against rich or poor, for Allah can best protect both.
Follow not the lusts of your hearts; lest ye swerve, and if ye distort justice or decline to do justice, verily Allah is well-acquainted with all that ye do. (4-135)."
In spite of the above clear commandment of Allah, the people in our society avoid to appear as a wtiness in criminal cases for various reasons including that they are won over by the defence. If factually an eye-wtiness is won over by the defence, the Court will have to examine his evidence, even if he is examined as a Court-witness, with care and caution by placing the same in juxtaposition with the other evidence on record. The golden principle of appraisal of evidence that the Court is to sift grain from chaff is to be followed in every criminal case.
9.In the present case, it is evident that neither the learned Sessions Judge nor the High Court has addressed himself/itself to the basic question, namely, whether the summoning of the above given up two eye-witnesses by the prosecution as the Court-witnesses, was essential for arriving at just decision of the case. If it was so, then the Sessions Judge had no discretion in the matter but to have summoned them as the Court-witnesses. We are, therefore, of the view that it would be just and proper to allow the above appeal and to set aside the two orders of the two Courts below and to remand the case to the learned Sessions Judge with the direction to decide the appellant's above application under section 540 of the Code afresh and should decide the question, whether the evidence of the above two given up eye-witnesses, one of whom is said to be an injured eye- witness, is essential for just decision of the case. If he records the answer of the above question in affirmatve, the above witnesses will be summoned as the Court-witnesses and the Sessions Judge will from that stage proceed to finalize the case in accordance with law after following the other procedural matters in view of the examination of the above two witnesses as the Court-witnesses.