' This criminal revision is directed against order dated 15-10-1996 passed by the learned Additional Sessions Judge, Sheikhupura whereby he dismissed' application under section 540, Cr.P.C., moved by the complainant for summoning Musarrat Bibi a girl of about 10 years of age. The learned Additional Sessions Judge while dismissing the application observed that Mst.Musarrat Bibi was hardly about 8-1/2 years of age a(the time of occurrence and perhaps due to that reason, police did not record her statement under section 161, Cr.P.C., that the complainant applied for examining the witness after the lapel of more than three years as a Court witness which if examined may cause prejudice to any of the parties. Finally it was held that it was not safe or necessary to examine Mst. Musarrat Bibi for fair disposal of the instant case.
2. The order of the learned Additional Sessions Judge is challenged on the ground that mother and brothers of aforesaid Musarrat Bibi were murdered during the night of occurrence, while she was also injured during the transaction alongwith her another brother Muhmmad Nadim. It was, therefore, submitted that the evidence of Mst. Musarrat Bibi was necessary to bring her version about the occurrence on record. It was further submitted that the learned trial Court did not take care to satisfy itself whether Msr. Musarrat Bibi though a child witness was competent enough to enter the witness-box to testify about the facts of the case as required by Article 3 of Qanun-e- Shahadat, 1984. It was urged that the learned trial Court should have examined the aforesaid young girl Mst. Musarrat Bibi in order to assess her competence to testify by putting, her questions as to whether who could give rational answers to those questions. However, nothing of this sort was done and the request for examining her as a Court witness was rejected straightaway.
3. The learned counsel for the defence opposed the petition on the ground that examination of Mst.
Musarrat Bibi was neither useful nor necessary because she was also injured and was not fit to make a statement at the relevant time. Hence her name was not included in the list of witnesses.
4. I have considered the foregoing submissions and find that name of Mst.Musarrat Bibi is mentioned in the F.I.R., and she was also injured during the occurrence. Her presence, therefore, cannot be doubted in any manner. The mere fact that she was unable to make a statement soon after the occurrence on account of her injuries would not disentitle her to make the statement whenever she was fit to testify. It appears that the Investigating Officer acted with negligence not to ascertain at a subsequent time to find out whether Mst.Musarrat Bibi was fit enough to make the statement or that she was a competent person to testify about the occurrence, although she was of very young age. It was the duty of the Investigating Officer to put her questions' after she had become fit to make the statement in order to assess whether she was competent witness to enter the witness-box. However, no such attempt was made. The question would, therefore, remain whether Mst. Musarrat Bibi should be allowed to be examined as a Court witness in view of the provisions contained in section 540, Cr.P.C., read with Article 3 of Qanun-e-Shahadat, 1984. The former section gives wide powers to the Court to examine any person if it is felt that the examination of such person shall advance the interest of justice. The mere fact that the name of such person did not occur in the list of witnesses would not prevent the Court to exercise the aforesaid legal jurisdiction. Similarly the request for examination made at a belated stage would not take away the aforesaid jurisdiction nor would adversely effect the discretion to be exercised judicially by the Court concerned. There is no doubt about it that Mst. Musarrat Bibi was a very young girl at the time of occurrence but that by itself would not ipso facto render her incapable to become a witness though Article 3 of the Order aforementioned says that all persons shall be competent to testify unless the court considers that they were prevented from understanding questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. Since the learned trial Court did not take into account the provisions of the aforesaid Article while deciding whether the witness be examined or not, therefore, the impugned order is not sustainable in the eye of law.
The mere fact that police did not cite her as a witness does not take away the power of the Court to examine any person under section 540, Cr.P.C., which can be exercised in appropriate cases. In the instant case though Mst.Musarrat Bibi is not mentioned in the list of witnesses, but her name figures in the F.I.R., and also in the report under section 173, Cr.P.C., submitted to the Court. She was also medically examined and her medico-legal report shows that she suffered 8 injuries during the occurrence. In such a situation and being an inmate of the house where the occurrence took place, she is most important witness to be examined at the trial and her examination would definitely advance the interest of justice.
5. The impugned order is set aside and this petition is accepted. It is directed that trial Court shall examine Mst. Mussarrat Bibi in the light of the provisions contained in Article 3 of the Qanun-e- Shahadat, 1984 to make an assessm ent whether she is competent witness being possessed with faculty of answering the questions put to her in a rational manner. If the Court comes to the conclusion that the aforesaid witness can give rational answers to the questions put to her and that she is otherwise competent witness to testify, then she shall be examined as a Court witness under the provisions of section 540, Cr.P.C. The parties are directed to appear before the learned trial Court on 16-2-1997.
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