' Akhtar and five others (respondents Nos.2 to 6) are being tried by the Additional Sessions Judge, Narowal, for having murdered Abdul Ghafoor brother of Muhammad Sadiq (petitioner).
' The F.I.R. was lodged by Muhammad Sadiq. The prosecution evidence was closed on 11-10-1992.
After recording the statements of the accused, the case was set for arguments for 21-10-1992. An application was submitted on 15-10-1992 by the Deputy District Attorney, Narowal, supported by the counsel for the complainant for summoning Muhammad Riaz, Moharrir, P.S. Batapur, District Lahore, alongwith Daily Diary Register, containing Report No,31 dated 17-10-1991, for recording his statement under section 540, Cr.P.C. It was averred therein, that Akhtar (accused in the case) while serving as Constable had been detailed on duty as guard, in the Services Hospital but he was found absent from duty by Muhammad Inayat Ullah, Inspector during the night between 16th and 17th of October, 1991, for which, he (Inspector) had reported at the police station. It was contended that as the occurrence of murder had taken place during the same night, the factum of absence of Akhtar from duty during the said period, was a circumstance connecting him with the crime.
' Learned trial Judge after issuing notice to the accused and hearing arguments of learned counsel for both the parties, dismissed the application vide order dated 21-10-1992.
2. Not feeling satisfied, the complainant has filed revision petition. Prayer has been made for issuing a direction to the trial Judge to summon Muhammad Riaz, Moharrir and record his statement under section 540, Cr.P.C. so that the Court may be able to take into account that fact also for deciding the case justly.
3. Learned counsel for the petitioner while reiterating the contentions raised on behalf of the complainant and the State, before the learned trial Judge, strenuously argued that learned trial Judge should not have rejected the prayer merely holding that the prosecution cannot be allowed to fill the lacunas. Learned counsel contended that the fact being urged to be brought on record, was neither in the knowledge of the Investigating Officer, nor in the knowledge of the complainant prior to closing of the prosecution evidence, and that the Court was approached in that regard as soon as that fact had come to their knowledge, and so there was no lathes, even on the part of the complainant/State.
' Learned counsel submitted that the whole compass regarding production of evidence has changed since after amendments in the Cr.P.C. and P.P.C. about the role and importance given to the complainant in criminal trials. Learned counsel contended that when it was brought to the notice of the trial Court that some circumstance/evidence was available to decide justly the connection of the accused with the crime, the Court should not have declined that prayer, merely by observing that it will amount to allowing facility to the complainant/State to fill the lacunas. He placed reliance upon Mahboob v. The State 1989 PCr.LJ 2050, Mehrzad Khan v. State PLD 1991 SC 430; Rashid Ahmad v. The State PLD 1971 SC 709, Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and Abdul Ghafoor v. The State PLD 1983 Lah.
139.
4. Learned Additional Advocate-General appearing for the State did not subscribe to the arguments of learned counsel for the petitioner and submitted that learned trial Court had taken a correct view and had rightly dismissed the application.
5. Learned counsel for the respondents opposed the prayer and contended that the State as well as the complainant had ample opportunities to bring forth that fact after investigation, with notice to the accused but they chose not to do that earlier and decided to avail the provisions of section 540, Cr.P.C. in an inappropriate manner.
' Learned counsel contended that the accused i.e. Akhtar respondent, had never taken the plea that he was on duty in the Services Hospital, during the time of occurrence, and so there was neither any ground nor justification to allow the prayer of the complainant. Learned counsel placed reliance on Said Shah v. The State 1986 PCr.LJ 379.
6. Vide judgment reported at page 709 of PLD 1971, their Lordships of the Supreme Court had set aside the convictions and sentences of the appellant under section 409/420, P.P.C. in two cases, which had been maintained by the High Court, taking into account the fact that the accused had neither been examined under section 342, Cr.P.C. nor had been provided the opportunity to rebut the additional evidence, which came on record in the form of statements made by the two complainants during re-examination, on the summoning of the Court. It was observed that learned trial Court after having allowed the prosecution to lead evidence in rebuttal of the defence, should have provided opportunity to the accused to lead fresh evidence in defence. The case was remanded to the trial Judge (Special Judge).
' In Muhammad Azam's case PLD 1984 SC 95 their Lordships while discussing the two parts of the provisions of section 540, Cr.P.C., observed, " 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 for just decision of the case " The judgment was delivered by the Shariat Appellate Bench of the Supreme Court in a case where the appellant had been convicted and sentenced under the Offence of Zina (Enforcement of Hudood) Ordinance. The evidence, the recording of which was considered essential related to the Nikah of the victim with the appellant.
' In Abdul Ghafoor's case PLD 1983 Lah. 139 the learned Judge had set aside the order passed by the Sessions Judge, vide which he had refused to allow permission to the prosecution to tender some documents in evidence, under section 540, Cr.P.C. Learned Judge after examining various authorities produced before him, noted, "....A further weighty observation is to the effect that the administration of justice cannot be circumscribed by at least unprescribed formalities nor can justice be sacrificed to them."
' In Mahboob's case 1989 PCr.LJ (Pesh.) 2050, learned Judge had accepted the revision petition and set aside the order passed by the Sessions Judge, whereby he had rejected the application submitted by the prosecution under section 540, Cr.P.C. to examine the Magistrate who had recorded confessional statement of one of the accused, during the investigation. In that case, the confessional statement of an accused had been recorded by a Magistrate during the investigation.
Although the confessional statement had been placed on record, yet the name of the Magistrate had not been mentioned as a witness in list of witnesses. The Prosecutor on coming to know of that, had submitted an application and placed reliance on sub-clause (2) of section 265-F, Cr.P.C.
Learned Judge considering the impact of the provisions of section 265-F came to the conclusion that the order of the learned Sessions Judge was not just.
' Vide judgment reported at page 430 of PLD 1991, their Lordships of the Supreme Court had set aside the order passed by the Sessions Judge as well as by the High Court, in revision, on the application made by the accused for examining two witnesses, one of whom was a Pesh Imam, named in the calendar of witnesses, as eye-witnesses. Their Lordships after observing that it was evident that neither learned Sessions Judge nor the High Court had addressed himself/itself, to the basic question whether the summoning of the given up two eye-witnesses by the prosecution as Court-witnesses, was essential for arriving at just decision of the case, set aside the orders of both the Courts and remanded the case to the. Court of Session, to redecide application after holding whether examination of the two given up eye-witnesses, one of whom was injured, was essential for just decision of the case.
' Their Lordships, apart from taking into account the judgments in various other cases, had also taken note of the two judgments by the Shariat Appellate Bench, reported as Muhammad Azam v.
Muhammad Iqbal and others PLD 1984 SC 95 and Maulvi Hazoor Bakhsh v. The State PLD 1984 SC 233.
7. In Said Kamal Shah's case 1986 PCr.LJ 379 (cited by learned counsel for the respondents) the learned Judge had refused to grant revision petition against the order passed by the trial Judge, whereby he had dismissed the prayer made by the prosecution to adduce evidence to rebut the defence evidence produced by the accused. In that case the accused while pleading the case had produced in defence a copy of Warabandi. The prosecution wanted to produce another Warabandi.
8. A perusal of the judgments noted above, particularly, the one i.e. PLD 1991 SC 430, shows that the consensus in the judgments by the superior Courts is that exercise of powers to grant petition under section 540, Cr.P.C. should not be refused, if it is considered essential for just decision of the case. Same view has been expressed in quite a few other judgments as well.
'In fact section 540, Cr.P.C. provides means for the urge of the Court to arrive at truth for giving a fair.and balanced judgment. The case, in hand,) has got to be seen in the light of the said principle.
' Before proceeding further, I deem it necessary to note the distinguishing feature between the cases of the parties in the cited judgments and the position in the present case. In all those cases, the parties had approached the Courts to avail the provisions of section 540, Cr.P.C. to record the statement/examine, the witness, whose name either was mentioned in the F.I.R. or whose name appeared in the list of the witnesses, attached with the report under section 173, Cr.P.C. The documents urged to be brought on record, as evidence, were also the ones, which were available on the file.
' In the case, in hand, the witness being sought to be summoned and the report being sought to be brought on record, do not find mention in the whole record. In fact, even according to the petitioner, he had come to know of that fact after close of prosecution case.
' The judgment reported at page 709 of PLD 1971 SC, of course, contains different facts but in that, although principle of additional evidence was considered, yet none of the parties had urged at any stage to avail the provisions of section 540, Cr.P.C.
9. According to the copy of the report of the roznamcha (attested to be true by the counsel), Akhtar Ali, Constable No, 1538 was found absent from duty in the Services Hospital at 7-55 a.m. on 17-10- 1991. The occurrence allegedly had taken place in the area of Police Station Kot Nainan, District Narowal, at Tahajjad-wela. There is no indication that after the report, a regular inquiry was held with notice to Akhtar and it was proved that he had absented some time before the time of occurrence, enough to travel to the place of occurrence. No material has been placed on record to believe that he was indicted for having remained absent. Learned counsel for the petitioner did not revert to that even during the arguments. He had not mentioned such fact in the petition as well.
10. The consensus in the judgments noted above, is that the Courts should exercise powers under section 540, Cr.P.C. if it is considered that bringing on record of the evidence being sought to be brought on record, would be essential for just decision of the case. If it is not reasonably shown that such evidence will help the Court in coming to the correct decision, resort to Section 540, Cr.P.C. will be refused, because exercise of use of powers under Section 540, Cr.P.C. has not to be done for the sake of futilities.
' In the case, in hand, even if it is proved that Akhtar accused was absent from duty at Lahore, at 7- 55 a.m., how can that be deemed to be a proof that he must have participated in the commission of murder?
11. The case was registered at the instance of the complainant and the Police had submitted the challan against the accused after thorough investigation. The Investigating Officer must have come to know during the investigation that Akhtar was a serving constable. He could have easily inquired, as to whether he was absent from duty during the time and whether he could have reached the place of occurrence and committed the offence during the time he remained absent but the Police had not done any such thing.
12. If the accused surreptitiously keeps, hiding his defence, particularly that of alibi, till the trial is over, and takes the prosecution by a surprise by putting up the same, while making statement under section 342, Cr.P.C., a reasonable cause for allowing the prosecution to rebut the defence can arise and in that case the Court in the interest of justice, can allow the production of additional evidence by resorting to section 540, Cr.P.C. However, in this case, the accused had never taken up that defence, nor did he adduce any evidence that he was on duty in the Services Hospital at the time of occurrence. In such circumstances, bringing on record the copy of the roznamcha and recording statement of the Moharrir who had recorded report, will not provide material to the Court, to reasonably come to the conclusion that the accused had participated in the occurrence.
Yet the other thing is that the Moharrir who recorded the report, was not a witness to the absence of Akhtar from duty, and so if he is allowed to be examined, the accused will be placed at a disadvantageous position because the Moharrir will not be able to answer the questions as to in what circumstances the accused was found absent and as to what explanation his companions had given.
After having considered all merits and demerits of the prayer made by the petitioner, I am convinced that no interference is called for in the order passed by the trial Judge. Allowing this petition, in my view, will only amount to showing undue indulgence, to the complainant and placing the accused at a disadvantageous position.
13. Before parting with the judgment, I would like to note here that the facts and circumstances of criminal cases are hardly ever similar. Actually in a large number of cases, they are never similar.
The discretions provided in the Code of Criminal Procedure regarding various matters i.e. summoning of Court-witnesses under section 540, Cr.P.C., grant of bail under section 497/498, Cr.P.C. have to be examined and decided by the Courts seized of the matter in the set circumstances of the lis before them. It is difficult to lay down hard and fast rule regarding exercise of discretion in a particular manner. Of course, guidelines provided by the superior Courts have to be given weight F for coming to a correct conclusion but the cardinal principle remains that every party should be treated fairly, without putting the other party in a disadvantageous position.
Violation of law and bypassing of the precedents, while exercising powers under section 540, Cr.P.C. should not be allowed on the pretext of arriving at truth.
The revision petition is dismissed.
Revision .