This order will dispose of Criminal Revision No.704 of 1991, through which the petitioner has challenged the order, dated 26-11-1991, of the learned Additional Sessions Judge, Lahore. By the said order, the learned Judge dismissed an application under section 540, Cr.P.C. Seeking production of attested copies of two F.I.Rs. And of the order of discharge passed thereon by the Magistrates concerned. The application was filed during the trial of a murder case, before the learned Judge.
2. The petitioner is the complainant in a case registered at Police Station City Toba Tek Singh on 22- 7-1990 alleging certain offences including one under section 302, P.P.C. The petitioner stated in the F.I.R. That his father Ch. Muhammad Akhtar Anwar deceased was murdered as a result of fire-arms injuries by five persons, namely, Akhtar Siana, Nasrullah and three other unknown assailants. The petitioner also alleged that Muhammad Anwar and Khalid Shaheed P.Ws. Had informed him in the hospital that a few days earlier while they were present at Toba Tek Singh Railway Station, accused Muhammad Idrees and Muhammad Hanif, who are brothers, were heard conspiring that their other brother Akhtar Siana accused was coming and that the deceased would be murdered as soon as opportunity presents itself. According to the plan, the two accused Muhammad Idrees and Muhammad Hanif would either get themselves arrested in a manipulated criminal case or have themselves admitted in an hospital to escape from the murder charge and to be able to pursue the criminal case that would be registered against their brother, Akhtar Siana accused.
It is further alleged that during the investigation of the case, the allegation regarding conspiracy by accused Muhammad Idrees and Muhammad Hanif was found to be correct. It was discovered that the two accused in connivance with Lal Khan and Wali Muhammad Assistant Sub-- Inspectors of Police Stations Nawan Lahore and City Toba Tek Singh, respectively, got them arrested in cases under Arms Ordinance. Subsequently, during investigation, the cases were found to be false and were cancelled by the orders of the Magistrate.
3. The learned trial Judge summoned Lal Khan and Wali Muhammad Assistant Sub-Inspector of police as accused persons to face trial alongwith the other accused in the murder case. The recording of prosecution evidence commenced and was in progress when on 26-11-1991, the application under section 540, Cr.P.C. Was filed by the D.DA. Duly signed by the petitioner and his learned counsel. It was stated in the application that accused Muhammad Hanif had been arrested in a case registered at Police Station Nawan Lahore on 20-7-1990 while Muhammad Idrees accused had been arrested in a case registered at Police Station City Toba Tek Singh on 18- 7-1990, both under the Arms Ordinance. The cases were found false and cancelled. The applicant alleged that these facts were mentioned in the report under section 173, Cr.P.C. Whose copies had been furnished to the accused. It was further stated that during checking by the District Attorney, Toba Tek Singh, it was noticed that copies of F.I.Rs. In cases under the Arms Ordinance and discharge orders passed thereon had not been placed on the file of the case. He directed the Investigating Officer to do the needful, but the Investigating Officer had inadvertently failed to do so. The petitioner stated that attested copies of the F.I.Rs. And those of the discharge orders were essential for a just decision of the case and these documents be allowed to be placed on record of the case.
4. The learned trial Judge issued notice to the accused the same day and after hearing arguments dismissed the application by order, dated 26-11-1991. The learned Judge observed that in the petition under section 540, Cr.P.C. It had been mentioned that the Investigating Officer had failed to place the documents on record, despite the fact that the District Attorney had directed him to do so. He observed that it was not the function of the Court to fill in a lacuna in the case on the part of any party and hence he did not deem it necessary to invoke his powers under section 540, Cr.P.C.
5. The learned counsel for the petitioner has challenged the order of the learned trial Judge on several grounds. He submits that the petition under section 540, Cr.P.C. Was filed without any delay while prosecution evidence had not yet concluded. He states that section 540, Cr.P.C. Consists of two parts, the first part gives powers to the Court 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. The second part is mandatory and places a duty on the Court to summon and examine or recall and re-examine any such person, if his evidence appears to be essential for a just decision of the case. The learned counsel contends that the application under section 540, Cr.P.C. In this case fell in the second part and thus it was the duty of the Court to have the documents placed on the record of the case. The learned counsel has further argued that the observation of the learned Judge that acceptance of the application would mean `filling in a lacuna in the prosecution case' is misconceived, firstly, because the application fell under the second part of section 540, Cr.P.C. And secondly, because the primary duty of a Judge is to seek the truth and arrive at a just decision of the case and in so doing he should not allow any technicalities to come in his way.
6. The learned counsel for the respondents has resisted this petition on the ground that admission of the documents would prejudice the case of the defence. He has stressed the requirement of a fair trial in accordance with the established norms of justice under which an accused should not be taken by surprise nor asked to defend himself against evidence of which he was not given notice at the appropriate time. It has also been submitted that the discharge report by the Magistrate concerned is based on opinion of police officers and 'hat such opinions have no relevance in a Court of law.
7. There can be no dispute with the proposition that section 540, Cr.P.C. A has two parts. The first part confers wide jurisdiction on the Court 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. The second part places an obligation on the Court to summon and examine or recall and re-examine any such person if his evidence appears to be essential to a just decision of the case. In exercising discretion under the first part, the A Court will have regard to the basic principles of a fair trial which are well-- established while under the second part the Court has no discretion. The overriding consideration under the second part is the duty of the Court to do justice.
If the Court comes to the conclusion that the evidence of any person is essential to the just decision of the case, then the evidence of that person must be made part of the record of the case in accordance with law.
8. After having heard the arguments of the learned counsel, I find myself unable to agree with the order of the learned trial Judge. The application was filed while the prosecution evidence had not yet been closed. This is not to say that such an application cannot be filed after the closure of the prosecution evidence. In an appropriate case, an application may be filed even after such closure and may be allowed by the Court if the circumstances so permit. However, the fact that it was filed while the prosecution evidence was still in progress would negate the allegation that the defence of the accused may be prejudiced by allowing the application. It cannot be said that the accused would be surprised by the admission of the attested copies of the F.I.Rs. And the discharge orders, because these facts were mentioned in the report under section 173, Cr.P.C. Copies of which had been delivered to the accused. The learned trial Judge was influenced by the fact that the documents in question were in the knowledge of the Investigating Officer and since he did not bring them on record, the Court could not come to the rescue of the prosecution. Whether, such negligence, if any, would result in refusal to exercise jurisdiction under section 540, Cr.P.C. Would depend on the facts and circumstances of each case. In the present case, the petitioner would like to bring the documents on record to support the allegation in the F.I.R. It is no doubt correct that mere opinion of Police Officers does not carry any weight in a criminal case. IC However, in the present case what the petitioner wants to prove is not an opinion, but the fact, that as alleged in the F.I.R. The two accused were arrested in certain cases which were later cancelled under orders of a Magistrate. The defence may dispute the documents and may have its own view as to the weight which should be attached to this evidence, the decision in this regard would be the function of the trial Court and I do not consider it necessary to make any comments on that aspect of the matter at this stage. Suffice it to say, that in my view the evidence sought to be adduced is necessary for a just decision of a E case and should be allowed to be produced. The defence should be given full opportunity to rebut the evidence and to cross examine any witness that may be necessary to meet the ends of justice.
10. The primary function of the Court is to arrive at the truth in accordance with law and technicalities should ordinarily not be allow to interfere with that function. On the other hand, it has also to be seen that accused gets a fair trial. I find that there are several cases which support the view I have taken. In PLD 1983 Lah. 139, a learned Judge of this Court allowed the prosecution to produce certain documents and made the following observations:-- "On a perusal of these precedents it does appear that the weight of pronouncements of the superior Courts is in favour of the proposition that the Court ought to make maximum endeavour for discovering the truth for arriving at a just decision. To achieve this avowed objective in search for truth, the Court cannot be construed to be leaning in favour of either side or against any one.
Otherwise, in the absence of true state of facts coming to the knowledge of the Court, it is difficult to conceive, how the decision would be correct or just. This power to secure ends of justice, therefore, must be exercised where the, purposes enumerated above are designed to be achieved unless some principle of law creates an impediment or circumstances of a given case lead the Court to the irresistible inference that the effect of such an exercise of power would bring about opposite results like miscarriage of justice. The weight to be attached to such relevant and material evidence received for just decision of the case, is for the trial Court to determine at the conclusion of the trial."
10. I fully agree with the above observations of the learned Judge. For reasons give above, this revision petition is accepted and the order dated 26-11-1991, is set aside.