1. This is a revision petition filed under Article 203-DD of the constitution of Pakistan, 1973, against the order, dated 18-6-1992 passed by the learned Additional Sessions Judge, Rawalpindi, camp at Gujar Khan, rejecting the petitioner's application under section 540, Cr.P.C.
2. I have perused the order reveals in this revision. The main contention for making the above application, as raised on behalf of the petitioner, seem,, to be that during the evidence of the complainant and during investigation of the case, certain facts were omitted. The learned Judge while dismissing the application observed as under:- "The perusal of record reveals that whole prosecution evidence has been recorded and the case is fixed for the statements of the accused under section 340(2), Cr.P.C. And defence evidence. As far as the alleged charge is concerned, sufficient evidence and material has been brought on the file for reaching to just decision of the case. Allowing document to be produced at this stage, would not meet useful purpose. 1, therefore, do not find any justification for summoning the record sought to be produced stow in evidence. The application is turned down."
3. It, however, seems advantageous to reproduce section 540, Cr.P.C., which reads as under:-- "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 the Court shall 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."
4. A bare reading of the above section will show that the above section consists of two parts: the first part of the section gives a discretionary power to summon any person or witness whereas the second part makes it obligatory for the Court to summon and examine and recall any such person if his evidence appears essential to the just decision of the case. So far as the impugned order is concerned, it appears: that the learned trial Judge while exercising his discretionary powers in not allowing the record to be produced at that stage when the case is about to end up, has acted on judicious consideration. I, therefore, do not feel inclined to interfere into the said discretion. So far as the second part of the above section is concerned, it will always be open to the learned Judge to exercise power in the interest of justice at any stage of the trial if the learned trial Judge feels it necessary to examine, call or recall any person or summon any record if such evidence appears to be essential to the just decision of the case.
5. The above provision of law is intended to enable the Court to come to a proper conclusion in a case under trial.
6. On perusal of the judgment it appears that the case was fixed for the statement of the accused under section 340(2), Cr.P.C. And the defence evidence at the time when application under section 540, Cr.P.C. Was made and' the impugned order was passed. It; therefore, goes without saying that it will be open to the petitioner to summon any witness in support of defence.
7. With the above observation, the revision application is dismissed in limine.
2. In view .Of the above order passed in the main revision petition, the application under section 561-A, Cr.P.C. For stay of proceedings becomes infructuous and is dismissed accordingly.
8. Before parting with the matter it may be observed that the petitioner and his counsel were not only absent on today's date of hearing but they remained absent on the last date of hearing as well.
9. N.H.Q./733/FSC