' Briefly stated the facts of the case are that a case under section 302/109/34 of the P.P.C. In respect of the murder of Mukhtar Ahmad A.S.I. Was registered on 22-6-1991 vide F.I.R. No,272/91 at Police Station Sadar, Faisalabad on a report lodged by Bahadur Ali son of Noor Muhammad, respondent against the petitioners. The trial commenced in the Court of ' learned Additional Sessions Judge, Faisalabad.
2. The case was firstly investigated into by Malik Abdul Majeed, S.I., the then S.H.O., Police Station Tandlianwala who came to the conclusion that the accused persons were innocent. The investigation was being supervised by Muhammad Amlish who vide Zimni No,14, dated 23-7-1991 confirmed the findings of the S.I. Thereafter, the investigation was transferred to Abdul Rauf, D.S.P., Crimes Branch, Lahore who vide Zimni No,38, dated 7-10-1991 also came to the conclusion that the accused were innocent. Resultantly, the petitioners were discharged vide order, dated 20-11-1991 passed by the Illaqa Magistrate, Faisalabad.
3. The maker of the F.I.R., respondent herein filed a private complaint on 14-12-1991 in the Court of Ilaqa Magistrate which was sent to the learned Sessions Judge, Faisalabad who entrusted the same to the learned Additional Sessions Judge. The trial commenced in the said Court and almost the entire prosecution evidence was recorded. The petitioners filed an application on 12th of May, 1994 for summoning the above-referred Investigating Officers as Court-witnesses. The trial Court dismissed the application vide order, dated 12th of May, 1994. The said order has been assailed through the present revision petition.
4. The petitioners' learned counsel contends as under:--
(a) The factum of the petitioners' discharge is very material and relevant for the just decision of the case. Therefore, the findings of the I.Os. Could not be shut out.
(b) The question whether the police witnesses should be summoned as Court-witnesses or defence witnesses has not been properly adverted to by the trial Court. The witnesses who are essentially prosecution witnesses cannot be converted into defence witnesses. If the above- referred witnesses be summoned as defence witnesses, then the accused persons would be deprived the right of cross-examination. In support of the above contentions the learned counsel placed reliance on the following judgments:-- ' Ghulam Rasul v. The State PLD 1960 (W.P.) Lah. 48, Nur Elahi v. The State and 2 others PLD 1966 SC 708, Khalil Khan v. The State PLD 1970 Pesh. 24, Mahboob Khan v. The. State PLD 1979 Lah. 691 and Muhammad Rauf Anwar v. The State and others 1992 P Cr. L J 729.
5. On the other hand, the respondent's learned counsel urged that the case was proceeding on a private complaint and the Police Officers were not the complainant's witnesses but essentially defence witnesses. Hence there is no justification to call them as Court-witnesses at this stage. He further submitted that in a similar case the trial Court had refused to summon the Police Officers as Court-witnesses and the order passed by the trial Court was maintained up to the level of the Supreme Court, Cr.P.LA. No,164/L of 1994, decided on 28-5-1994. The learned AA.-G. Urged that the matter was primarily in the discretion of the trial Court and that keeping in view, the facts of the case, the trial Court had chosen to exercise the discretion against the petitioners. He pointed out that in a challan Case, the names of P.Ws. Are entered in the calendar of witnesses and if any material witness is given up then the Court can call him as a Court-witness. He added that the incharge of prosecution in a complaint case is a private counsel and if he does not include a certain person in the list of witnesses then he cannot be examined as a prosecution witness but he may be produced by the accused in defence.
6. There is considerable force in the arguments of the learned counsel for the respondent and the learned AA.-G. In the present case, the prosecution is proceeding on a private complaint and the complainant has to discharge the burden of proving his case through the evidence of his witnesses. Thereafter, the accused/petitioners will get an opportunity to produce evidence in their defence. They will be at liberty to summon the police witnesses in their defence. The apprehension that they might support the prosecution case and that the accused might have to cross-examine them is ill-founded because according to their own showing, the above-referred police officials had come to the conclusion that the petitioners were innocent and had recorded their findings in the relevant Ziminis whereupon the case was cancelled under the order of the competent Magistrate. Therefore, the Police Officers are expected to stick to their written findings and in case, they do otherwise, they can be declared to be hostile witnesses and cross-examined by the accused/petitioners. The learned AA.-G. Has rightly urged that the matter of summoning some witnesses as Court-witnesses is essentially the discretion of the Court. In the present case, the Court did not feel the necessity of calling A the witnesses as Court-witnesses as in its opinion, there was sufficient material on the record to arrive at a just decision.
7. The judgments cited by the petitioners' learned counsel are distinguishable. In Ghulam Rasool and Mehboob Khan's cases, some eyewitnesses mentioned in the F.I.R. Were given up by the prosecution and were ordered to be called as court-witnesses because their examination as defence witnesses was likely to be prejudicial to the accused. Obviously, an eye-witness given up by the accused may or may not depose in favour of the accused, therefore, his examination as Court-witness was desirable so as to provide a fair opportunity to both the sides to cross-examine him. However, as mentioned above, in the present case, the Police Officers who had conducted investigation in the case, had clearly recorded findings in favour of the accused persons and were expected to stick to their written opinion. In Muhammad Rauf Anwar's case, the scope scheme and guiding principles regarding section 540 of the Cr.P.C. Have been stated. There is no cavil with the proposition that if evidence of a witness appears to be essential to a just decision of the case, the Court is bound to summon him as a Court-witness. In the present case, the trial Court did not consider the evidence of the Police Officers essential to the just decision of the case and felt that there was sufficient material on the file for resolving the controversy justly. There is nothing to show that the view of the trial Court is arbitrary or whimsical. It may be observed that the opinion of C the Police Officers regarding innocence of the accused persons is not binding on the Court and the Court is entitled to form its own views on the basis of the evidence produced by the parties. No prejudice whatsoever is likely to be caused to the accused persons if they produce the said Police Officers as I defence witnesses. In a similar case, the trial Court rejected the application of the accused persons for summoning the Police Officers as Court-witnesses under section 540 of the Cr.P.C. With the following order:- "I have gone through the police file and have perused the Ziminis recorded by the said Officers.
They were recorded after submission of the challan. The prosecution is not bound to produce them in the Court as prosecution witnesses and neither this Court would like to summon them as Court- witnesses because the case of either party may not be prejudiced at this stage. However, the defence is at liberty to produce them as defence witnesses if they feel it necessary. Accordingly, the petition being without any merit is hereby dismissed."
' The said order was upheld by the High Court in revision and the revisional order was maintained by the Honourable Supreme Court in the case of Haji Muhammad Abdullah v. The State Criminal Petition for Leave to Appeal No,164/L of 1994 dismissed on 28-5-1994. The relevant part of the judgment reads as under:-- "After hearing the learned counsel for the petitioner we are not persuaded that a case for interfering with the order of the trial Court has been made out. The learned Sessions Judge had gone through the police diaries and found that no justification for summoning the said Police Officers as the Court-witnesses had been made out. Learned counsel appearing for the petitioner has not been able to satisfy us that the evidence of the said Police Officers was necessary for the Court to come to the right conclusion on the question of the guilt or innocence of the petitioner and the co-accused. In the circumstances, we do not think that this is a fit case where leave should be granted to the petitioner. Leave is refused."
' I respectfully follow the rule laid down by the Supreme Court in the above quoted case.
8. For the foregoing discussion, I do not find any merit in this petition which is dismissed. However, it is clarified that the petitioners will be at liberty to apply to the trial Court to summon the Police Officers in their defence.