' Case F.I.R. No,34. Dated 1-3-1998, registered with Police Station Kundian, District Mianwali, under section 302, P.P.C. Had been sent up before the learned Sessions Judge, Mianwali for trial. On 9-12- 1998, the learned Sessions Judge vide his interim order noted that:- "Four P.Ws. Have been examined. The learned D.D.A. Has closed the case for the prosecution. The accused has also been examined under section 342 of the Code of Criminal Procedure, 1898. For defence evidence and arguments to come up on 10-12-1998."
' On 10-12-1998 an application was moved by the learned D.D.A. Seeking permission to bring on record copy of F.1.R. No,57, dated 7-4-1998, registered with Police Station Kundian, District Mianwali, under section 436, P.P.C. The application was allowed and resultantly Muhammad Sher S.- I./Investigating Officer was summoned for re-examination under section 540, Cr.P.C. And also record of F.I.R. No, 57 was also requisitioned. For re-examination of the witness, the case was adjourned to 21-12-108.
2. The order, dated 10-12-1998 has been assailed through the present criminal revision mainly on the ground that summoning of the Investigating Officer for re-examination under section 540, Cr.P.C. Would tantamount to fill in the lacuna of the prosecution case and the requisite F.I.R. No,57 was already present on the file though not exhibited but marked by the learned Sessions Judge. It is, therefore, argued that the discretion under section 540, Cr.P.C. Has not been exercised judiciously, hence the impugned order be set aside.
3. For convenience of reference, section 540, Cr.P.C. Is reproduced as under:- "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 reexamine 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."
' Bare perusal of the section reveals that the learned trial Judge is competent to recall and re- examine any person already examined. The power has been qualified with a mandatory provision that the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it essential to the just decision of the case. There is no denial of the fact that the learned trial Court has been vested with the jurisdiction to re-examine any witness and the only requirement for re-examining the witness is that his examination should be essential for the just decision of the case. There is no cavil with the proposition that no witness should be summoned or re-examined merely to fill in lacuna of either 'party may be the prosecution or defence. The underlying rationale or idea of the proposition is that impartiality of a Court may not be allowed to be affected or impaired at any stage. At the same time it has been laid down time and again that the trial Court is not to act merely as a silent spectator but is to see that justice is done in the case.
If he finds that any evidence is essential to determine any fact in issue, the trial Court .Will not refrain from re-summoning or re-examining that witness. The learned trial Judge has in pea. 3 of his order reproduced the statement made by the accused person under section 342, Cr.P.C. And has also reproduced the part of the statement of Muhammad Anwar Adil complainant (P.W.7) during his cross-examination. He also referred to the statement made during cross-examination by Sher Khan Investigating Officer (P.W.I0). On finding the glare discrepancies, he thought it fit and proper on bare perusal of the requisite F.I.R. Which has been marked as 'A' that the Investigating Officer should be re-examined on the point. Unfortunately the tendency on the part of police officers to make statements contrary to record is on the increase. In some cases, the same is intentionally done to make an obliging statement. To ascertain the true facts, it is bounden duty of a learned trial Court to maintain vigilance and to conduct the trial with his eyes and ears open. The learned trial Judge after elaborately discussing the facts of the case came to the conclusion that re-examination of Muhammad Sher S.-I. With regard to the case touching the setting on fire the Snooker Club appears to be essential to the just decision of the case and to remove the ambiguity on the point. The order, thus, does not suffer from any illegality or infirmity. The learned trial Court has not exercised its discretion under section 540, Cr.P.C. In an unjust manner. Obviously whenever a witness is examined under section 540, Cr.P.C. Or re-examined, he has to make some statement and various inferences have to be drawn therefrom. If the intention of the party is to remove the lacuna committed by it, then of course it has been constantly held that section 540, Cr.P.C. Cannot be pressed into service in aid and assistance of any of the party, but to determine a fact judiciously with regard to which there is some ambiguity it rather becomes the duty of the trial Court to invoke its jurisdiction under section 540, Cr.P.C. I cannot remain oblivious of the fact that the learned trial Judge who is conducting the trial is in a better position to observe as to where lies the ambiguity or what is necessary for the just decision of the case. Of course if the jurisdiction is exercised in an arbitrary manner or in violation of the law laid down by this Court or the Honourable Supreme Court or the order is perverse or unjust, the same can be corrected under section 439, Cr.P.C. No such defect or infirmity has been pointed out in this case.
4. Learned counsel has referred in support of his contention the judgments reported as Safdar Jan v. The State 1997 PCr.0 1553 wherein it was held that object of section 540, Cr.P,C. Is to advance the interest of justice and not to permit any of the parties at the trial to fill up the lacunas. In statement of facts it was observed that the witness sought to be examined by the prosecution was never considered to be a witness of any material nor the witness himself thought it proper to appear as a witness during the investigation. Obviously examination of such witness amounts to filling in lacuna of the prosecution case, therefore, the same could not be permitted. In another case titled Saleem Ahmad Naseer v. The State 1985 PCr.LJ 1078 his Lordship was pleased to observe that for examining any person as a Court witness whether already examined or not the principle is that his evidence should appear to be essential for the just decision of the case. It was further observed that it may be easily deduced from the provisions of section 540, Cr.P.C. That exercise of power is a matter of discretion. It was, however, qualified that the power cannot be exercised for allowing volta faces because if the same was permitted it would amount to opening flood gates where witnesses after making full statements might start coming up with one or the other excuse for their re- examination. In that case the witness had been declared hostile and was cross-examined by the State. Subsequently he was sought to be re-examined as according to the complainant the witness had turned hostile and he intended to make true statement. The same was not allowed to be done by the I Court. Any witness who had already been declared hostile if re-examined and makes a statement in favour of the prosecution would clearly amount to filling in the lacuna o the prosecution which is not permissible under the law and section 540, Cr.P.C. Not been included in the Code to cover up the deficiency of the prosecution case.
5. The sum and substance of the above discussion is that the impugned order passed by the learned Sessions Judge, Mianwali does not suffer from any illegality or infirmity and does not in any manner call for interference under section 439, Cr.P.C. The petition is dismissed in limine.