' AMIRUL MULK MENGAL, J.--- This is a petition under section 435/439, Cr.P.C. Read with section 561- A, Cr.P.C. Against the order, dated 29-8-1994 passed by Additional Sessions Judge-I, Quetta whereby she has been pleased to dismiss the application for recording evidence of 4 persons as follows:-
(1) Malik Zakeriya Khan.
(2) Inayatullah Bazai.
(3) Jameel Khan.
(4) Syed Essar Asghar.
2. Facts briefly stated are that on 12-4-1993 one Ejaz Rana son of the present petitioner was allegedly fired at by respondent Kashif-ur-Rehman and was injured. It is the case of the prosecution that on account of said injuries he expired in Civil Hospital, Quetta on 12-6-1993. As a result of which initially an F.I.R. Under section 324, P.P.C. Was recorded with Gowalmandi Police Station on the report of the deceased himself vide F.I.R. No,43 of 1993, which, however, was converted into section 302, P.P.C. Subsequently.
3. After investigation the prosecution submitted incomplete challan under Qisas and Diyat Ordinance. The Court started the trial when an application was moved by the mother of the deceased for summoning and recording statements of four witnesses which has been rejected vide order impugned before us. It is this order under challenge in this petition.
4. Heard petitioner in person, Mr. Sarwar Javed, Advocate on Court's notice, learned Additional Advocate-General and Mr. M. Zafar, Advocate for the respondent and State respectively.
5. The case of the petitioner is that her son was fired upon at about 12-30 noon on Quarry Road, Quetta by accused Kashif-ur-Rehman who reported the matter with the police. Subsequently he succumbed to the injuries in the hospital. The police recorded the statements of some prosecution witnesses but did not record the statements of eye-witnesses. The petitioner stated that since the accused is son of a famous Advocate, therefore, no Advocate was willing to appear on her behalf.
On query of the Court she stated that Sarwar Javed, Advocate was assisting the prosecution. Upon this we issued notice to Mr. Sarwar Javed, Advocate to appear and assist the Court. He explained that he in fact was assisting the prosecution and requested the District Attorney to move the application for evidence. The District Attorney assured him that he would file application and during this time Mr. Sarwar Javed fell seriously ill. He was hospitalised and he asked the petitioner to herself move the Court accordingly she moved the application which has been rejected.
6. Mr. Sarwar Javed argued that all the four persons nominated are the eye-witnesses in the case and they are very respectable persons of the area. Mr. Zakeriya Kansi is an ex-Mayor of Quetta and Ex-Minister for Education, Balochistan. Inayatullah Bazai is the owner of Ismat Cinema and Mr. Jamil Khan is also a respectable person. All of them have filed affidavits to the effect that they had seen the occurrence, so much so that it was Zakeriya Kansi who took the injured to the hospital in his private car. It was further argued that the Investigating Officer was duty bound at least to have recorded their statements under section 161, Cr.P.C. And to bring their names on the schedule of witnesses. But since the accused party is very influential therefore, the investigation was not properly done and in such circumstances the mother of the deceased had no alternative but to file an application to the trial Court for recording statements of these witnesses. The rejection of such application was totally misexercise of jurisdiction. It was further argued that in order to bring justice to the parties it is essential and mandatory that the Court should record the statements of these eye-witnesses.
7. Learned Additional Advocate-General supported the order of trial Court on the ground that none of the proposed witnesses were examined by the police and their names do not appear in the schedule of witnesses. In the circumstances the trial Court has rightly exercised its jurisdiction by rejecting the application for recording statements of these witnesses.
8. Mr. M. Zafar vehemently opposed the petition urging that the application was misconceived.
According to him the complainant party has blamed not only the Investigating Officer but equally the District Attorney and even impliedly the trial Court by asserting that it in fact has failed to properly exercise jurisdiction. The application, therefore, is mala fide. It was secondly contended that the petitioner failed to move application at the time of submission of challan or even at the beginning of the trial. It was canvassed by the counsel that the complainant was being represented by counsel Mr. Sarwar Javed and he could conveniently move this application at the right and proper time. According to the counsel the Court has got the jurisdiction under section 540, Cr.P.C. Which in any case cannot be exercised against the accused to fill the gaps and lacunas of the prosecution case.
9. The pertinent question in this case is to examine the scope of section 540, Cr.P.C. In order to do the needful it is thus necessary to reproduce section 540, Cr.P.C. The same 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."
' From bare perusal of this section one fact becomes crystal clear that section 540, Cr.P.C.
Comprises of two parts; the first being discretionary whereas the second part of its is mandatory as the word "shall" has been used in it and prerequisite being that if essential, the Court may recall and re-examine any person if his evidence is necessary to the just decision of the case.
10. Applying this principle to the facts of present case it may be observed that it is indeed astonishing, rather shocking that the Investigating Officer did not examine Mr. Muhammad Zakeriya Kansi according to whose affidavit it was he who took the injured in his private car to the hospital. In the circumstances he was a relevant witness because after when the injured was admitted in the hospital for treatment it was incumbent upon the Investigating Officer to have at least examined the witness, who took the injured to the hospital. Non-examination of such a witness reflects upon the conduct of the Investigating Officer. It would not be out of place to mention here that primary duty of collecting evidence against an accused person rests upon the officer who investigates into the case. It is not generally the duty of witness to search for the Investigating Officer but it is for the Investigating Officer to make efforts to find out the witnesses who were present at the spot or to link up the sequence of events. It is unfortunate to observe that in many cases the standard of investigation has remained not to the standard. We note with pain that in some cases gross negligence is committed by the Investigating Officer where they fail to record statement of very material witness/witnesses as in the present case. It is none of the duty of the Court to fill the gaps of prosecution case to the detriment or disadvantage of the accused but all the same it is the duty of the Court to exercise its power under law to bring justice to all concerned. Section 540, Cr.P.C. Bestows jurisdiction upon the Court to call for a witness at any stage of enquiry, trial or proceeding or any person in attendance though not summoned as a witness, if it is essential to the just decision of the case.
11. We have perused affidavits of all the four witnesses which are very pertinent for the just decision of the case.
12. The main objection as raised by Mr. Zafar learned counsel for the accused was that this application should have been filed by District Attorney and that the same has been filed at a very belated stage. The mother of the deceased appeared before us and stated that she has made all her efforts, but learned District Attorney did not file such application and her counsel Mr. Sarwar Javed fell seriously ill. There was none else to extend legal assistance to her because none from the Bar is ready to be engaged by her. Mr. Sarwar Javed was issued Court notice who confirmed these contentions and stated that while he was ill he instructed Mst. Amina Bibi to directly file application in the Court. Suffice is to observe that section 540, Cr.P.C. In fact confers jurisdiction upon the Court, rather in appropriate cases imposes a duty upon the Court for summoning witnesses who were not brought before the Court. So if it comes to the knowledge of the Court that there is a witness or witnesses whose statements are necessary to lead towards the truth and to promote cause of justice in a particular case, then the Court can order production of such witnesses. The Court in such eventuality is not obliged to ask District Attorney or for that matter to Investigating Officer to bring the names of any such witness on the schedule of witnesses but to directly summon such witnesses and record their statements. However, care must be taken that this should not be aimed to prejudice either of the parties. The line of distinction in these propositions of course, is very thin and it depends upon the trial Court to decide keeping in view facts of each case. Indeed the Court has no business to conduct the trial in a manner which reflects upon its impartiality but simultaneously a Judge cannot remain indifferent altogether or to act as a helpless creature so as to watch injustice on account of lapses of either of the parties. It is the duty of the Court to do justice to the parties within the ambit of law and if the law bestows an authority or a discretion to the Court the same must be exercised in judicial manner and for advancement of justice and not against it.
13. In PLD 1962 (W.P.) Lahore 558 Mr. Justice Shabir Ahmad (as he then was) remarked that section 540, Cr.P.C. And section 165, Evidence Act give unlimited powers' to Courts to examine or recall witnesses in order to arrive at truth. His Lordship further observed that Courts are not to sit as "unconcerned statutes". Similarly in 1992 PCr.LJ 729 Mr. Justice Sh. Muhammad Zubair, ruled that section 540, Cr.P.C. 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. It was further observed that in appropriate case, application under section 540, Cr.P.C. May be filed even after the closure of the prosecution evidence.
14. Seen in the light of aforementioned observations it may be noted that learned Additional Sessions Judge-I, Quetta mainly rejected the application as being filed at a belated stage. This approach was not in consonance with provisions of section 540, Cr.P.C. Because from plain reading of the said section it becomes clear that the words "at any stage of enquiry or trial" have been intentionally used so as to enable the Court to summon witnesses even after the closure of prosecution evidence if in appropriate case the Court comes to the conclusion that it is essential to find out the truth. Thus, the order passed by Additional Sessions Judge-I, Quetta that application under section 540, Cr.P.C. Had been filed at a belated stage does not find support from the provisions of section 540, Cr.P.C.
15. As observed earlier all the four witnesses are important witnesses because according to their affidavits it was Mr. Muhammad Zakeriya Kansi, who took the injured person from the place of occurrence to hospital in his private car. The other witnesses also support this version. Hence it is necessary that learned trial Court should examine all these four witnesses and should give an opportunity of cross-examination to the defence.
' For all what has been stated above we are of the view that the impugned order is not sustainable in law which is set aside. The trial Court is directed to issue summons to the witnesses as mentioned in the application and examine them in accordance with law.
' This disposes of Criminal Revision No,85 of 1994.