' Through this criminal revision petition the order, dated 16-2-1998 of the learned Sessions Judge, Okara has been challenged, whereby the last Investigating Officer, namely, Rana Shahid, D.S.P. Was not summoned as Court-witness, rather the petitioner was allowed to summon him as his defence witness.
2. The brief facts are that F.I.R. No,136 of 1994 was registered on 7-4-1994 at Police Station Basirpur, District 'Okara under section 302/34, P.P.C. Against four persons, namely, Rasheed Ahmad, Saleem Dad, Nazeer Ahmad alias Naju and Zafar Hayat. Zafar Hayat, accused is still absconding whereas other three accused persons are in custody. Initially after completing investigation, the challan was sent up by the learned Illaqa Magistrate on 11-5-1994. However, on the order of the S.P., Okara, dated 31-12-1995, the reinvestigation was ordered which was entrusted to Rana Shahid, D.S.P., Depalpur, District Okara. According to the learned counsel for the petitioner, he found the present petitioner innocent during his investigation. However, his report was not submitted to the Court because the challan was earlier submitted to the Court.
3. The order for reinvestigation and its entrustment to D.S.P. Rana Shahid was challenged by the complainant party in this Court through Writ Petition No,381 of 1996 pleading that the challan had already been submitted to the Court who had recorded the prosecution evidence and that Rana Shahid, D.S.P. The newly appointed Investigating Officer, was related to Saleem Dad, accused. This Court passed the order on 30-1-1996 directing Rana Shahid, D.S.P. To complete reinvestigation within ten days. This order was impugned before the Honourable Supreme Court and vide order, dated 13-2-1996 passed in Criminal Appeal No,726/L of 1996, the Honourable Supreme Court stayed the reinvestigation and allowed the learned trial Court to proceed with the trial but not to announce the final judgment. Finally this appeal was withdrawn by the complainant party from the Honourable Supreme Court on 17-12-1997.
4. Meanwhile, the prosecution evidence was closed on 17-7-1997 while defence evidence was not closed. The present petitioner submitted an application to the learned trial Court on 14-6-1997 under section 540, Cr.P.C. For summoning D.S.P. Rana Shahid as Court-witness contending that he had in his investigation found the petitioner and co-accused Zafar Hayat innocent. This application was contested by the complainant party and vide order, dated 21-6-1997 was dismissed by the learned trial Court observing that "the application for summoning of the witnesses as Court- witnesses is devoid of any force, which is dismissed accordingly. However, the defence is at liberty to summon them as D.Ws.". The defence evidence, thereafter, was closed on 25-9-1997 and the case was fixed for final arguments on 3-2-1998. The petitioner made another application under section 540, Cr.P.C. Requesting the Court to summon D.S.P., Rana Shahid as Court-witness. This application was also contested by the complainant party and finally rejected by the learned trial Court vide impugned order, dated 16-2-1998, observing as under:-- "Since there exists no ground for summoning required witness as C.W. And I am afraid that I am in a position to recall my order, dated 21-6-1997. However, for the ends of justice, if inadvertently or advertently witness has not been produced as D.W. The defence is given a more chance to produce him as D.W. As counsel for the complainant has no objection. Therefore, application for summoning Rana Shahid D.S.P. As C.W. Is devoid of force. It is dismissed. However, accused is at liberty to summon him as D.W. Through Court before the date fixed for arguments."
5. Feeling dissatisfied with this order the petitioner filed the present revision petition. Learned counsel for the petitioner submitted that Rana Shahid, D.S.P. Could not be cited as witness in the calendar of witnesses because the challan had earlier been submitted to the Court before he was entrusted with the investigation of the case. He, therefore, submitted that under section 540, Cr.P.C., the learned trial Court ought to have summoned him as Court-witness in order to arrive at the just decision of the case, as his evidence was essential. In support of his contention he relied on Mehrzad Khan v. The State PLD 1991 SC 430, Hakim Khan and 4 others v. The State PLD 1993 SC 55, Muhammad Ayub v. The State 1987 PCr.LJ 779, Mst. Aamna Bibi v. Kashif-ur-Rehman and another 1995 Cr.LJ 730, Muhammad Israr and 5 others v. The State 1987 PCr.LJ 244 and Bashir Ahmad v. The State 1988 MLD 2435. Learned counsel for the petitioner. Vehemently argued that Rana Shahid, D.S.P. Could be summoned as Court-witness at any stage of the trial notwithstanding the fact that the prosecution and defence had closed their evidence.
6. There is no cavil with the proposition that the Court has the power under section 540, Cr.P.C. To summon any person at any stage of the inquiry or trial, as Court-witness and is obligatory to summon and examine such a person, if it appears to the Court that the evidence of such a witness is essential to the just decision of the case. However, according to the learned counsel for the petitioner, Rana Shahid, D.S.P. Was one of the Investigating Officers and was not himself a witness in the case, nor cited in the calendar of witnesses. The judgments cited at the bar by the learned counsel for the petitioner are distinguishable as in all the precedent cases the witnesses who were directed to be summoned as Court-witnesses, were the witnesses themselves, of facts and circumstances and were cited in the calendar of witnesses, but were given up or not summoned.
7. With regard to the earlier order, dated 21-6-1997, whereby the first application under section 540, Cr.P.C. Of the petitioner for summoning Rana Shahid, D.S.P. As Court-witness, was dismissed and not challenged, the learned counsel submitted that after the withdrawal of the appeal from the Supreme Court by the complainant party, the right accrued to the petitioner to file a fresh application under section 540, Cr.P.C. He further submits that even otherwise there was no bar to file fresh application for summoning Rana Shahid as Court-witness.
8. On the other hand Sardar Muhammad Latif Khan Khosa, Advocate, learned counsel for the complainant submits that the Court had earlier dismissed the application of the petitioner on 21-6- 1997 and on the same grounds second application was not competent, particularly when on merits the first application was dismissed by the learned trial Court. He adds that in the interest of justice the learned trial Court had also allowed the petitioner to produce Rana Shahid, D.S.P. As defence witness, therefore, the grievance of the petitioner is not justified. He further submits that even if Rana Shahid, D.S.P., Investigating Officer was produced, his statement would be of no legal value as his evidence is inadmissible and irrelevant for the purpose of this case, in the light of the judgments of the Honourable Supreme Court in the case of Farman Ali v. The State 1992 SCMR 2055 and the earlier case of Moonda v. The State PLD 1958 SC 275. In the foimer, it is observed that, "such an opinion of the Investigating Officer is not only irrelevant but inadmissible..."
9. Learned counsel for the complainant also cited at the bar the judgment of the Supreme Court in Muhammad Alam v. Additional Secretary PLD 1987 SC 103, in support of his contention that the reinvestigation and cancellation of the case after the trial had commenced, was not permissible under section 173, Cr.P.C. In this judgment reference to a Full Bench judgment of this Court in Wazir v. State PLD 1962 Lah. 405 is also made.
10. Even if I agree with the learned counsel for the petitioner that in the circumstances of this case, there was no bar for making second application for summoning Rana Shahid, D.S.P. As Court- witness, I am not satisfied, as to the purpose that would be served by summoning Rana Shahid, D.S.P. As Court-witness as it was not shown to the learned trial Court nor to me that any particular fact relating to the case was in his knowledge or any evidence was in his possession, which otherwise could not have been brought on record through the Investigating Officer, who had previously appeared, or the defence witnesses.
11. Under section 540, Cr.P.C. No doubt that at any stage of the trial and even after closing of the evidence, the Court has power to summon any person and examine him as a witness. But in the present case, the Court has not declined to summon Rana Shahid, D.S.P. As Court-witness on the basis that the evidence stood closed. On the contrary, the Court was not satisfied that the evidence of D.S.P., Rana Shahid was essential to the just decision of the case, as he was only one of the Investigating Officers, although disputed by the learned counsel for the complainant, and had no personal knowledge about the facts of the case. However, in the light of the aforesaid Supreme Court judgment in Farman Ali supra 1992 SCMR 2055, such evidence would be inadmissible and irrelevant. Therefore, it would not help the petitioner nor serve any useful purpose, even if he was summoned by the learned trial Court as a Court-witness.
12. Learned Advocate-General Punjab and Mr. Abdul Karim Bhutta, learned State Counsel who appeared on behalf of the State supported the order passed by the learned Sessions Judge on 16- 2-1998 as according to them also, this order was valid and proper in the circumstances of this case..
13. In the light of the above discussion, this petition has no force and is accordingly dismissed.