' CH. MUHAMMAD ARIF, J.-Petitioners are facing trial before the Special Judge, Suppression of Terrorist Activities, Islamabad in case I.R. No.225 dated 20-12-1996 registered at Police Station Sihala, District Islamabad allegedly for causing the murder of (1) Atif Mehboob and (2) Raheem Dad. During the proceedings before the learned Special Judge, the prosecution examined 16 P.Ws, in support of its case as also tendered in evidence a report of the Chemical Examiner and two reports from the Forensic Science Laboratory. It was thereafter that the petitioners moved an application before the Special Judge under section 540, Cr.P.C, for examination of (1) Muhammad Fazil, (2) Sultan Sharif, (3) Dr. Wali Ullah A.I.-G. Of Police, (4) B.A. Nasir, Additional SP, Islamabad as Court witnesses and (5) Director Forensic Science Laboratory for purposes of cross-examining him with regard to report/s tendered by him through the Public Prosecutor. The trial Court dismissed their application on 13-10-1999 with, among others, the following observations: "The incomplete report drafted under section 173, Cr.P.C, was prepared on 12-3-1997 and in this report the name of Muhammad Fazil, Sultan Sharif, Dr, Wali Ullah, A.I.-G. And Mr. B.A. Nasir, Additional S.P. Did not figure. This report was complete in all respects except the report of the Serologist. In the supplementary challan drafted on 20-8-1998 the names of said four persons figured for the first time in the calendar of witnesses. After the submission of the first report- the addition of said four witnesses in the supplementary challan was illegal. After the Honourable High Court gave the target date in the writ petition filed by the complainant prepared on 12-3-1997 and in this report the name of Muhammad Fazil, Sultan Sharif, Dr, Wali Ullah, A.I.-G. And Mr. B.A. Nasir, Additional S.P. Did not figure. This report was complete in all respects except the report of the Serologist. In the supplementary challan drafted on 20-8-1998 the names of said four persons figured for the first time in the calendar of witnesses. After the submission of the first report the addition of said four witnesses in the supplementary challan was illegal. After the Honourable High Court gave the target date in the writ petition filed by the complainant for placing the entire data before the trial Court the addition of these four persons as witnesses in the calendar of witnesses was a deliberate and dishonest intention to favour one particular party. For all intents and purposes the investigation was complete in all respects at the time of submission of the report drafted on 12-3- 1997. Muhammad Fazil and Sultan Sharif appeared before the Investigating Officer to support the defence version raised by the accused. The statement of Raja Muhammad Saleem, DSP, P.W.16 is on the record and in his cross-examination he admitted that Muhammad Fazil, Inam Ali and Shahid Saleem appeared before him in the defence of the accused and he found the defence versions afterthought and ruled it out of consideration. The Court does not feel the necessity of summoing them as C.W. And the defence may opt to produce them as D. Ws. After the accused enter into their defence. Similarly the request of the defence to summon Director, FSL as C.W.
Cannot be allowed. The proviso to section 510, Cr.P.C. Says that Court may if it considers necessary in the interest of justice summons and examines the person by whom such report has been made.
The defence has failed to convince and point out any ambiguity in two reports and his appearance will not meet the ends of justice and dispense the same.
' The State Counsel has made the request to summon the Serologist to prove the report. It is well settled that it is not the function and duty of the Court to cover any lacunae left in the case of either party. The State Counsel had sought time to produce the report of Serologist and State Counsel has produced an attested copy of the report of Serologist which can be exhibited on record at the time of closing the prosecution case if the original report of Serologist is not available then it is not the duty of the Court to perform the function of the prosecutor. With these observations the application moved by the State Counsel is dismissed."
2. The petitioners challenged the order dated 13-10-1999 of the learned Special Judge Rawalpindi/Special Judge Suppression of Terrorist Activities on 19-10-1999 seeking the issuance of summons to the afore-referred individuals. Their Criminal Revision No.108 of 1999 was dismissed by a learned Division Bench of Lahore High Court, Lahore after considering the provisions of sections 510 and 540 of the Code of Criminal Procedure and holding that it depends upon the Court concerned to determine whether it is essential to invoke the said provisions for just decision of the case and that the " trial Court did not deem the necessity of either calling the witnesses as Court- witnesses or allowing the cross-examination of the Forensic Science Expert for the reason that there was sufficient material on record for arriving at a lust and effective adjudication."
(Underlining is for emphasis). Further, it was also observed by the High Court as under:-- "5 Muhammad Fazil and Sultan Sharif have deposed in favour of the defence as stated by Raja Muhammad Saleem, D.S.P. Appearing as P. W.16. These two persons can be conveniently called as defence witnesses. On the other hand Dr. Wali Ullah, Assistant Inspector General of Police, Islamabad and Mr. B.A. Nasir, Additional Superintendent of Police, Islamabad, as observed by the trial Judges, in the impugned order are not the Investigating Officer and their names did not figure in the calendar of witnesses in the incomplete challan submitted on 12-3-1997, however in the supplementary challan submitted on 20-8-1998 their names are definitely mentioned but without any basis.
"6 If the report of the Forensic Science Expert is ambiguous learned defence counsel can point out the ambiguity to the trial Court and secure the point in his favour rather than cross-examine him and fill in the lacunae which may go in favour of the prosecution. If the defence counsel points out the ambiguity in the report and the failure of expert to abide by the proper procedure and standard in arriving at a definite result, we are certain the trial Court shall not only note the argument but also support his order with plausible reasoning."
3. Mr. Muhammad Ilyas Siddiqui, learned Advocate Supreme Court appearing in support of this petition, was critical of the impugned judgment on the ground that this Court has held in Mehrzad Khan v. The State (PLD 1991 SC 430) that first part of section 540, Cr.P.C. Is discretionary but the second part is mandatory. According to him, the word 'may' can be construed 'shall' in certain circumstances if the context so demands and as was the case of the petitioners before the trial Court as also the High Court, the prayed for relief should have been granted to them by all concerned. Contrarily, Mr. Sardar Muhammad Ishaq Khan, learned Senior Advocate Supreme Court appearing on behalf of the State, has supported the impugned judgment in its entirety.
4. We have considered the arguments addressed at the Bar and have also gone through the available material with the help of the counsel for the parties. As regards the reliance placed by Mr. Muhammad Ilyas Siddiqui on Mehrzand Khan supra, we suffice by observing that there is no cavil with the preposition highlighted in the precedent case. The trial Court as also the. High Court have proceeded to resolve the matter against the petitioners on the ground that neither the calling of the witnesses as Court-witnesses nor Forensic Science Expert is proper/ necessary in that sufficient material is available for arriving at a just conclusion in the matter. Moreover, the High Court was also quite right in observing that the alleged ambiguity of the report of Forensic Science Expert can be pointed out by the defence before the trial Court and a favourable point can be achieved without cross-examining him which will, of necessity, lead to filling in lacunee to favour the prosecution. "....If the defence counsel points out the ambiguity in the report and the failure of expert to abide by the proper procedure and standard in arriving at a definite result, we are certain the trial Court shall not only note the argument but also support his order with plausible reasoning."
(Underlining is for emphasis).
5. No other point was urged.
6. In this view of the matter, the instant petition is dismissed. And .