' ASIF SAEED KHAN KHOSA, J.--- The necessary facts giving rise to the present revision petition are that Bashir Hussain petitioner is the complainant of case F.I.R. No,472 registered at Police Station, Karor Lal Eisan, District Layyah on 22-11-1998 for offences under sections 302/379/ 396, P.P.C. Which case is presently being tried by the learned Judge, Special Court constituted under the Anti- Terrorism Act, 1997, Dera Ghazi Khan. The state of the trial of the said case at present is that the entire prosecution evidence has already been recorded and the statements of the accused persons, i.e, respondents Nos.2 to 6 herein have also been recorded and apart from the defence evidence to be produced by one of the accused persons namely Muhammad Ishaque the defence of the other accused persons has already been closed. During the trial of the said case Muhammad Hussain and Akhtar Hussain, who had been cited in the calendar of witnesses as prosecution witnesses and were stated to be eye-witnesses of the occurrence in question, had been given up by the prosecution as having been won-over. On 16-5-2000 respondents Nos.2 to 6, i.e, the accused persons submitted an application before the learned trial Court under section 540, Cr.P.C. Praying therein for summoning the abovementioned Muhammad Hussain and Akhtar Hussain as Court-witnesses. On the same day, i.e, 16-5-2000 the said application of the accused- respondents was accepted by the learned trial Court and the abovementioned two persons were ordered to be summoned as Court-witnesses on the next date of hearing, i.e, 19-5-2000. That order passed by the learned trial Court on 16-5-2000 has been assailed by the petitioner before this Court through the present revision petition.
2. In support of the present revision petition it has been argued by the learned counsel for the petitioner that the learned trial Court had decided the application under section 540, Cr.P.C. Filed by the accused-respondents in an unholy haste; no notice was given to the petitioner- complainant regarding the said application and, thus, no opportunity of hearing was afforded to the petitioner in that regard; the order passed by the learned trial Court on 16-5-2000 regarding summoning of the said persons as Court-witnesses discloses no reason whatsoever in support of acceptance of that application; and even otherwise the said application was not disposed of by any separate order containing any discussion on the subject before acceptance of that application. It has, thus, been argued by the learned counsel for the petitioner that the manner in which his jurisdiction was exercised by the learned trial Court and the resultant prejudice caused to the petitioner call for interference by this Court in the larger interests of justice. As against that the learned counsel for respondents Nos.2 to 6 as well as the learned counsel for the State have maintained that there is no illegality in exercise of jurisdiction by the learned trial Court in the matter as the matter of summoning of any person as a Court-witness lies within the discretion of a trial Court and there is no duty cast upon a trial Court to hear any party in the matter because the said power of a trial Court depends upon a satisfaction of the trial Court itself in the matter. The learned counsel for respondents Nos.2 to 6 has placed reliance upon the cases of Mahboob Khan v. The State PLD 1979 Lah. 691, Ghulam Rasul v. The State PLD 1960 (W.P.) Lah. 48 and Jafar v. The State 1997 PCr.LJ 87 (Lahore).
3. After hearing the learned counsel for the parties and going through the record it may straighaway be observed by us that there is no cavil with the proposition that under section 540, Cr.P.C. a power of the trial Court to summon any person as a Court-witness is not contingent upon a request of any party and that the said power is to be exercised by a trial Court if it is felt by the trial Court that the evidence of such a person is essential to a just decision of the case in question.
However, to us the question involved in this petition is not whether the learned trial Court in this case had the requisite jurisdiction to pass the impugned order or not but the real question relevant to this petition is as to the manner in which such jurisdiction is to be exercised by a trial Court. In the present case we are in agreement with the learned counsel for the petitioner that unfortunately the learned trial Court had depicted unholy haste in accepting the application submitted by respondents Nos.2 to 6 under section 540, Cr.P.C. Inasmuch as the said application had been submitted before the learned trial Court on 16-5-2000 and it was decided on the same day without issuing any notice to any other party and also without affording any opportunity to any party to address arguments in that regard. At least the impugned order passed on 16-5-2000 does not show any such issuance of notice or any such opportunity of hearing being afforded to any other party. It is also true that no reason whatsoever had been recorded by the learned trial Court for accepting the said application under section 540, Cr.P.C. It may be advantageous to reproduce here the operative part of the order, dated 16-5-2000 passed by the learned trial Court in this case:-- ' "The learned defence counsel has submitted an application for summoning Muhammad Hussain and Akhtar Hussain P.Ws. And C.Ws. In the Court. Their application has been accepted. Muhammad Hussain and Akhtar Hussain P.Ws. Cited in the challan case to be summoned as C.W. For the next date. The case to come up for evidence of C.Ws. For 19-5-2000."
It had been held in the case of Khushi Muhammad v. Muhammad Yousaf and 6 others PLD 1971 Lah.
169 that an order of acceptance of an application under section 540, Cr.P.C. Which did not disclose any reason for such an acceptance of that application is liable to be interfered with and such an order is to be set aside.
4. There is another aspect of this case which has indeed shocked us to some extent. It is mentioned in the impugned order, dated 16-5-2000 that an application had been submitted by the learned counsel for the defence in Court and that application had been accepted by the learned trial Court. That is all that we have found in the said order about the said application, i.e, its filing and its acceptance, and nothing more. In the case of Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 a High Court had dismissed a writ petition with the order:- ' "The application is rejected as there is no substance in it."
' That order passed by the High Court was commented upon by the Honourable Supreme Court of Pakistan with the following observations:-- ' "There is no doubt that the High Court's order which is unfortunately perfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying 'there is considerable substance in the petition which is accepted', should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning. Which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. Litigants who bring their disputes to the law Courts with the incidental hardships and expenses involved do expect a patient and a judicious treatment of their cases and their determination by proper order. A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with its painful results, that justice has neither been done nor seems to have been done is inescapable. When the order of a lower Court contains no reasons, the Appellate Court is deprived of the benefit of the views of the lower Court and is unable to appreciate the processes by which the decision has been reached." (Underlining has been supplied by us).
5. The case in hand, unfortunately, suffers from the self-same mischief which the Honourable Supreme Court of Pakistan had alluded to above, i.e, acceptance of an application by a judicial forum sans reasons.
6. For what has been discussed above we are quite sanguine and confident that the exercise of jurisdiction by the learned trial Court in the matter was not proper or regular. This revision petition is, therefore, allowed, the impugned order passed by the learned trial Court on 16-5-2000 accepting the application of respondents Nos.2 to 6 regarding summoning of the abovementioned two persons as Court-witnesses is set aside and the matter is remanded to the learned trial Court to take a fresh decision on the said application of the respondents after affording an opportunity to the parties to address their arguments for and against the said application. We would expect the learned trial Court to complete the said exercise within a period of three weeks from receipt of a copy of this Court.