JUDGMENT JUDGMENT .
IFTIKHAR AHMAD CHEEMA, J.- Khadim Hussan, petitioner has moved the instant revision petition calling in question the order dated 29.2.2000, passed by Mr. Arshad Javed Mir, Additional Sessions Judge, Sheikhupura, whereby he disallowed the petitioner's application for summoning. Mr. Iftikhar- ul-Haq, DSP, City Circle, Sheikhupura, as Court- witness.
2. The brief facts of the case leading to the instant petition are that a case under sections 148, 302/149, PPC was registered, vide FIR No. 422, dated 9.7.1998, at Police Station, B-Division, Sheikhupura, against the petitioner and seven (7) others on the complaint of Mirza Ejaz Ahmed, for the murder of his brother, Habib Raza. The allegation against the petitioner and his co-accused was that they formed on unlawful assembly within the area of chowk Imam Barra, Jandiala Road, Sheikhupura, City, and in prosecution of the common object of the said assembly caused the intentional death of Habib Raza deceased by giving him fire arm injuries./ After thorough investigation the challan was submitted in the Court of Mr. Arshad Javed Mir, Additional Sessions Judge, Sheikhupura, and Mr. Iftikhar-ul-Haq, DSP, City Circle, Sheikhupura, who had partly investigated this case was shown as a P.W. In the calendar of witnesses. During the trial, the saith P.W. Was given up by the DDA being unnecessary and the case is now fixed for recording the statements of the accused persons under Section 342, Cr.P.C. On T6.2.2000, the petitioner moved an application for summoning the said Iftikhar-ul-Haq, DSP as Court-witness which wa dismissed vide the impugned order passed by the Additional Sessions Judge, Sheikhupura.
3. Feeling aggrieved, the petitioner (Khadim Hussan) has come up in revision and I have heard the learned counsel for the parties at length. Learned counsel for the petitioner contends that-during the investigation made by Iftikhar-ul-Haq, DSP five (5) accused persons were found innocent, his opinion was based on cogent and weighty material and his evidence was, therefore, a sine qua non for the just decision of the case and the prosecution was not justified to abandon him as a P.W.
Anyhow, it is absolutely necessary that he should be summoned and examined atleast as a C.W. In order to elicit the truth. His appearance in Court would not prejudice the prosecution case at all rather it would advance the cause of justice.
4. Mr. Taki Ahmad Khan, Advocate, learned counsel for the complainant while opposing the revision petition vehemently contended that the said DSP was hand in glove with the accused persons, he conducted the investigation dishonestly and declared some of the accused persons as innocent although there is nothing on the file which may tend to substantiate their plea of false implication.
He has been given-up by the DDA on the application of the complainant on the sole ground that he has been won-over by the accused. Even the statement made by the DDA is factually incorrect because he gave up the said DSP as being unnecessary although he had added that he was doing so on the basis of the application of the complainant. The said DSP should have been given up as having been won over by the accused and not as being unnecessary. Learned counsel for the complainant further contends that the defence is fully competent to summon and examine the said DSP as D.W. But his opinion is not binding on the Court as held in a chain of authorities. Hence, his summoning as Court-witness is not essential for the just decision of the case.
5. Having given my careful. Consideration to the arguments propounded by the learned counsel for the parties, I ani of the view that the impugned order passed by the learned Additional Sessions Judge, Sheikhupura does not suffer from any illegality or legal infirmity. It is indeed true th# the Trial Court has very wide powers to summon a person as Court-witness in exercise of its powers under Section 540, Cr,P. C., there are equally well-settled limitations on the exercise of such powers, one of them which is relevant for the present case is that a person may be summoned as a Court-witness provided his evidence appears to the Court essential to the just decision of the case. The fact that Iftikhar-ul-Haq, DSP, had exonerated five (5) accused persons from the commission of the offence with which they were charged is merely a relevant circumstance and that can be brought on the file by asking the other Investigating Officer regarding this fact. Assuming without conceding that the said DSP had appeared before the Trial Judge as a P.W. And had deposed the above fact in his evidence, it would have been of no avail to the defence because it is now well-settled that the opinion of the Investigating Officer/Agency is not binding on the Courts and the Trial Judge should not have accepted the ips dixit of the said DSP as a gospel truth. Even otherwise, keeping in view the rampant corruption in the Police Department, it has been lately held by the Honourable Supreme Court that the opinion of the police officers conducting investigations is neither relevant nor admissible and I quote 1992 SCMR 2062. Similar view was expressed in other celebrated judgments of the apex Court. Resultantly, if a circumstance even if brought on the file through the evidence of a witness either called as a P.W. Or C.W. In Court, carries no evidentiary value, his summoning as a Court- witness becomes wholly immaterial.
6. It is also significant to note that the said DSP was given up by the DDA on the application of the complainant who has specifically alleged that he had been won-over by the accused-party. In this view of the matter, his summoning as a Court-witness could prejudice the prosecution case.
Learned Additional Sessions Judge, who was an arbiter in the case could not exercise his discretion for summoning the said DSP as a Court-witness which amounted to advancing the cause of defence plea.
7. When the Supreme Court judgment has well-settled this proposition that the opinion of the Investigating Officer whether he is Thanedar", or DSP or SP or even higher than those, is not relevant and admissible and even if considered to be a relevant circumstance and admissible, it is not binding on the Court. I do not see any good ground to summon such a police officer to substantiate some thing, i.e. Innocence of certain accused, which carries no weight or value in the eye of law.
8. The impugned order passed by the learned Additional Sessions Judge, Sheikhupura, does not bear the imprint of any illegality. The petition is devoid of force which stands consequently dismissed. The petitioner shall, however, be at liberty to summon the said DSP as D.W., if so advised.