TASSADUQ HUSSAIN JILANI, J.- Though this Criminal Revision, the petitioner has challenged the order dated 11-11-1996 passed by the Addl. Sessions Judge, Gujranwala (seized of trial in a case registered vide FIR No. 547/94, dated 12-11-1994 under section 302 PPC Police Station, Satellite Town, Gujranwala) vide which the learned Court allowed an application under section 540 Cr.P.C, and directed the complainant to produce the evidence which was mentioned in the application.
2. Brief facts giving rise to the filing of the instant petition are that at the time of the framing of charge petitioner-accused claimed that he be allowed to place on record birth certificate as he was 14 years of age at the time of the occurrence (on 12-11-1994) and that the charge under section 302 PPC could not be framed. The said application was dismissed by the learned trial Court vide order dated 22-8-1995 with the observation that petitioner could take up this plea while making statement under section 342 Cr.P.C. On 8-2-1996 prosecution moved an application praying therein that it be allowed to produce school leaving certificate of the petitioner-accused, the application of the father of the accused-petitioner for re-admission in the school and forms A&B submitted by the father of the accused- petitioner for obtaining Identity Card wherein the age of the petitioner-accused was given. It was pleaded that the afore-referred documents would show that at the time of the occurrence, the accused was 18/19 years of age. This application was dismissed by the learned trial Court on 30-5-1996 on the ground that the documents referred to above were not necessary for a just decision of the case whereafter the prosecution evidence was closed, the same. Day. On 4-7-1996, the accused was examined u/S. 342 Cr.P.C, wherein he took up the defence that he was about 14/15 years of age at the time of the occurrence and in support of this plea he produced birth certificate which was placed on record as Exh. D.E. The complainant thereafter moved the second application on 28-7-1996 alleging therein that Exh.DE is a forged document and had been produced by tempering with Municipal record and that the accused was 18/19 years of age at the time of the occurrence and that to find out about the genuineness of Exh.D.E. Municipal Record Keeper, the school leaving certificate, register admission of the school where the accused remained admitted and the application filed by, father of the accused- petitioner for obtaining Identity Card be requisitioned. This application was allowed vide the impugned order.
3. Learned counsel contends that there is no provision in the Cr.P.C, for granting permission to. The prosecution to produce additional evidence in rebuttal and that provision of Section 540 Cr.P.C, cannot be invoked to fill in the lacunas of the prosecution case. He lastly contended that as the prosecution's prayer for production of the afore-referred documents was earlier on dismissed vide order dated 30-5-1996, the same, could not have been allowed. It was further contended that the complainant could not have been allowed to file an application which was accepted by the trial Court as the said application was not filed through the District Attorney. In support of the ,afore- referred submissions, learned counsel for the petitioner has relied on Nazir Ahmad v. The State (PLJ 1996 Criminal Cases 711), Saeed Shah v. The State (1986 P Cr.LJ. 379), and National Bank of Pakistan v. Mumtaz Ahmad, etc. (1984 PSC 297).
4. Learned Assistant Advocate General, on the other had, has defended the impugned order by submitting that Section 540 Cr.P.C, has a vide scope and that the trial Court was within its jurisdiction to allow the application of the complainant which according to learned trial Court was imperative for a just decision of the case.
5. I have heard learned counsel for the parties and have given anxious thoughts to the arguments addressed at the bar.
6. It is not denied that in the report submitted by the prosecution under section 173 Cr.P.C, pursuant to which, the trial commenced, the age of the accused-petitioner was mentioned as 18/19 years.
The petitioner at the time of the framing of the charge did claim to be below 16 years of age at the time of the occurrence but he was not allowed to adduce any documentary evidence and the learned trial Court observed that he could raise the plea at the time of recording of his statement under section 342 Cr.P.C. The prosecution moved application on 8-2- 1996 making a prayer that following documents should be allowed to be produced:-
(i) production of school leaving certificate of the accused-petitioner;
(ii) application of the father of the accused-petitioner for re-admission in school and;
(iii) forms A&B signed by the father of the accused-petitioner for obtaining Identity Card wherein the age of the petitioner was mentioned.
This application was not allowed by the trial Court as according to it, those documents were not necessary for a just decision of the case. Subsequent to the dismissal of the application filed by the prosecution and during recording of the statement of the accused-petitioner under section 342 Cr.P.C. It was pleaded by him that he was below 16 years of age at the time of the occurrence and in proof of the said plea Exh.DE i.e. Birth certificate was also placed. On record. This document was exhibited for the first time and the prosecution was within its right to produce evidence in his rebuttal. Section 540 Cr.P.C, was enacted to cater to eventualities of the kind which arose in this case. The view that prosecution should not be allowed to fill in lacuna and gaps cannot be stretched to far which may amount to devoid of justice. In Muhammad Azam v. Muhammad Iqbal (PLD 1984 SC 95 at page 123) it was observed as under:- "The question regarding so-called bar against filling of gaps, has to be considered in another context also. If it is found to be a salutary rule, then the same, without any distinction vis-a-vis the nature of the offence should be applicable in all criminal trials. It would be noticed that in murder cases; the application of this rule, when the controversy is with regard to the filling or otherwise of a gap in the defence evidence by the resort to section 540, and in case denial thereof would result in conviction and no other sentence than death would be likely to be awarded, it would not be possible to canvass that in observation of the so-called rule of avoidance to fill the gaps, evidence which is essential for the just decision of the case, would not be admitted for this reason. It would not only be the negation of justice in a general sense, but would also contravene another rule namely that no party should suffer on account of mere technicalities. The precedent case-law is not enacted to trap individual parties through technicalities and has to be interpreted always as acting in aid of justice and fairplay".
So far as the argument of the learned counsel that the application was not moved by the public prosecutor and was moved by the complainant is concerned, I am afraid, the same is not valid as firstly; under the new dispensation, the complainant has also been given a right of appeal under the Code of Criminal Procedure and secondly; Section 540 Cr.P.C, is not dependent on an application moved on either side. Even the Court itself can summon a witness or requisition evidence which according to it, is imperative for a just decision of the case. The precedent case- law to which reference has been made by learned counsel for the petitioner is not applicable to the facts and circumstances of the instant case as in PLJ 1996 Lahore 711, there was no fresh document tendered in evidence by the accused which required rebuttal on the part of the prosecution. In 1986 P.Cr.L.J. 379, the prayer for additional evidence was declined on the ground that the prosecution would have an opportunity to have the matter clarified through cross-examination when the witness concerned appears. The judgment of the Hon'ble Supreme Court (1984 PSC 297) is also distinguishable. In the said case, the Hon'ble Supreme Court upheld the order of the learned Special Judge wherein he observed that complainant had no right to file an application under section 540 Cr.P.C, for additional evidence, but decided to summon one of the witnesses named in the application under suo motu powers and declined to summon the remaining ones.
Notwithstanding the dimension as to who should have moved the application in question in the instant case, the order passed tends to promote the ends of justice and can be protected under the exercise of suo motu powers. Moreover, as discussed earlier, under the new dispensation, the complainant has a right of appeal against acquittal under section 417 Cr.P.C. Provisions of Section 265-A Cr.P.C, would have to be hormonised with the intent of a later amendment in Section 417 Cr.P.C, which grants right to the complainant to file appeal against acquittal. It would lead to an anomalous situation that complainant should have a right to file appeal against acquittal but should be denied to pursue the trial and lead evidence qua a document about which he is convinced that it was a forged document. The trial Court had rightly allowed the application for additional evidence as in absence of that the only document qua the age of petitioner-accused would have been the birth certificate which according to the complainant was not a genuine document. In these circumstances, the impugned order is within the ambit of the second part of Section 540 Cr.P.C, and the law mandates", the Court shall summon and examine or record and re- examine any such person if his evidence appears to be essential to the just decision of the case".
For what has been discussed above, I see no merit in this petition which fails and is hereby dismissed.