' This revision petition has been directed against an order of District Criminal Court, Mirpur, dated 13th June, 2000, whereby Dr. Allah Rehm Khokhar (P.W.10) was summoned as Court-witness under section 540, Cr.P.C.
2. The precise facts of the case are that: the accused petitioners are facing trial before the District Criminal Court, Mirpur, under section 5 of Islamic Penal Laws Enforcement Act, 1974 read with section 34, A.P.C. During the course of prosecution evidence it was noticed by the trial Court on 10- 2-1998 that P.W.10 is on leave for 120 days whereupon the trial Court directed the prosecution to produce the said witness on its own responsibility. On 22-7-1999, the evidence of said witness was closed because of his absence. Feeling aggrieved, the complainant presented a revision petition before this Court which was allowed and the trial Court was directed to afford an opportunity to the prosecution for production and recording of the evidence of P.W.10. On 2nd May, 2000, the prosecution submitted before the trial Court that P.W.10 has refused to appear before the Court, therefore, prosecution be allowed to produce secondary evidence and for the purpose Record Keeper, Muhammad Sharif may be summoned. The aforesaid petition was dismissed by the trial Court vide its order, dated 15-5-2000. Feeling dissatisfied, the complainant moved an application for summoning P.W.10 as Court-witness under section 540, Cr.P.C., which was allowed by the trial Court vide its order, dated 13-6-2000. The aforementioned order of the trial Court has been assailed before me through the instant revision petition.
3. Mr. M.Y. Tahir, Advocate, the learned counsel for the petitioners, has argued that the trial Court has fallen in error in summoning P.W.10 as Court-witness because the prosecution has failed to avail the final opportunity for producing the said witness, as directed by this Court. The learned counsel has vehemently contended that after presenting the application for summoning Record Keeper, as secondary evidence, the prosecution has given up P.W.10, therefore, the prosecution is debarred for tiling a petition under section 540, Cr.P.C. He has also submitted that the facts and circumstances of the case do not justify for summoning P.W.10 as Court-witness because the Court cannot fill in lacuna left by the prosecution. The learned counsel has further maintained that an application under section 540, Cr.P.C. Has been presented by counsel for the complainant and not by the Public Prosecutor, therefore, is not tenable. In support of his contentions he has relied upon the following authorities:--
(i) 1984 SCM R 1436 and (ii) 1986 PCr.L J 1536.
4. In reply, Mr. M. Reaz Alam, Advocate, the learned counsel for the complainant, has contended that the evidence of P.W.10 is essential for the just decision of the case because he has to corroborate the post-mortem report. He has also argued that the section 540, Cr.P.C. Gives wide powers to the Court to examine any witness as a Court-witness at any stage of the case irrespective of the fact that the prosecution has, failed to produce the aforesaid witness. The learned counsel has further submitted that under the provisions of Islamic Penal Laws Enforcement Act, 1974, a complainant or an aggrieved person is quite competent to file any application or lodge an appeal against an order of conviction or acquittal independently without the permission of the Public Prosecutor. He has defended the impugned order on all counts. In support of the arguments he has referred to the following authorities:--
(i) 1991 PCr.LJ SC (AJ&K) 508; (ii) 1992 M LD 930; (iii) 1997 PCr.LJ 87; (iv) 2000 PCr.LJ 62, 1676 and 1882.
5. Mr. Aurangzeb Chaudhry, the learned Public Prosecutor appearing on behalf of the State, has fully owned and supported the arguments raised by the learned counsel for the complainant.
6. I have very carefully considered the points canvassed by the learned counsel for the parties, after perusing the record and the case-law cited. It is admitted between the parties that Dr. Allah Rehm Khokhar has been cited as P.W.10 in the Column No,6 of the challan. According to the prosecution, the aforenamed witness has to testify the post-mortem report of Muhammad Sharif, deceased, thus, it appears that the evidence of P.W.10 is essential to the just decision of the case. In order to appreciate the legal position, it will be fruitful to examine the provision contained in section 540, Cr.P.C. Which is reproduced as under:-- "540. Power to summon material witness or examine person present. 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 re-examine 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."
7. The perusal of the above-quoted section reveals that it consists of two parts. The first part empowers the Court to summon any person as a witness or to examine any person present in the Court or to recall or reexamine any witness, whereas the second part is mandatory in nature which compels the Court to issue any order for recording of the evidence if the evidence appears to be essential to the just decision of the case. The power of Court to examine any person as a witness is unlimited and unrestricted provided the Court is satisfied that such evidence is essential to the just decision of the case. A host of case-law owns this view but I have decided to quote only few cases.
8. In a case titled Imam Haneef v. Tufail etc. 1989 PCr.LJ 518 an eyewitness Hashim Khan was given up by the prosecution but later on the Court ordered to examine the witness under section 540, Cr.P.C. As Court-witness, as according to him his evidence was essential for the just decision of the case. The impugned order was assailed in revision petition. The Court observed at page 574 of the judgment:- ' "There is no denying the fact that Hashim Khan has been named as eye-witness in both the reports. His deposition in the case is, therefore, very important for just and correct decision. In such a state of record it is obligatory on the Court to summon and examine him under the latter part of section 540, Cr.P.C. Which says, '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'.
This objection that at the time when the prosecution has not yet started recording evidence, the summoning of this witness would be premature, would be of no avail as the trial Judge would not decide the case merely on the evidence of this witness rather he would consider the evidence of this witness alongwith the statement of the other witnesses examined in the case and would then judge its evidentiary value and would adopt that which appears to be truthful and reliable. In such an eventuality it would not matter if Hashim Khan is examined in the beginning or in the end. It is primary function of the Court to ascertain the correct factual position and to endeavour to collect all relevant evidence to enable it to arrive at a legal and impartial decision. It would not be fair for a party to construe this effort of the Court as leaning in favour of a party as against other, nor a party would be justified to consider this effort as prejudicial to his interest or biased. If the facts of the precedent case are perused then this would be manifest that it is entirely distinguishable and cannot be made applicable to the instant case."
9. In the case of Rasheed Ahmad v. The State PLD 1971 SC 709, the Court has laid down the rule that:-- ' "A Criminal Court is fully within its rights in receiving fresh evidence even after both sides have closed their evidence and the case is adjourned for judgment, for, till then the case is still pending."
10. In another case titled Muhammad Sharif Sarh v. The State 2000 PCr.LJ 1882, it was held that the primary duty of the Court is to impart justice, therefore, the Court, in exercise of the powers under section 540, Cr.P.0 cannot be absolved from performing its duty because of certain technicalities if according to the Court, the evidence of any person is essential to the just decision of the case, irrespective of the fact that his name was mentioned in the charge-sheet. The Court could summon and examine the said person at any stage of the case before pronouncement of the judgment.
11. The same view was upheld in a case titled Hafiz Muhammad Ahmad v. Ghulam Nabi and another 2000 PCr.LJ 62.
12. The similar view was approved by the apex Court of Pakistan dealing with the case of Abdul Salam v. The State 2000 SCM R 102 which reads as under:-- ' "Section 540, Cr.P.C. Empowers the Court to summon or examine any person as a witness at any stage of an inquiry or trial, if it considers him to be a material witness and whose evidence appears to be essential to the just decision of the case. The power is not subject to any condition and can be exercised whether or not a person is cited as a witness in the challan case or the complaint, as the case may be. The only requirement is that he should be a material witness and his evidence should be essential to the just decision of the case."
13. From the survey of the above-stated case-law, it would be evident that the Court can summon a witness even if his name does not appear in Column No,6 of the challan, provided his evidence is essential to the just decision of the case.
14. So far as the objection of the learned counsel for the petitioners that the permission to summon the Court-witness would amount to fill up the lacuna in the prosecution case is concerned, in a latest case titled The State v. Muhammad Yaqoob and others 2001 SCM R 308 it was opined by the learned Judges that the Court is bound to examine any person as a witness if his evidence appears to be essential to the just decision of the case irrespective of the fact that any party had requested for it or not. Carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving the object of the Court to do complete justice between the parties.
15. I may observe here that section 540, Cr.P.C. Is not limited to the benefit of the accused and it would also not be an improper exercise of discretion for the reason that such evidence supports the case of the prosecution.
16. After careful consideration of the argument of the learned counsel for the petitioners that after summoning record keeper as secondary evidence, the prosecution has abandoned the evidence of P.W.10, therefore, the trial Court fell in error in summoning P.W.10 as Court-witness, is found having no substance in the light of the above-quoted discussion.
17. As far as the contention of the learned counsel for the petitioners, about the presentation of the petition under section 540, Cr.P.C. Is concerned, suffice to note that under Islamic Law, the complainant or the injured person and their counsel are quite competent to file any application or lodge an appeal against the order of conviction or acquittal without the prior permission of the Public Prosecutor, therefore, the authorities referred to by the learned counsel for the petitioners are behind the controversial issue and have nothing common with the facts of the present case.
18. In such state of affairs, it cannot be said that in the circumstances of the case the Court below has exercised the jurisdiction which is violative of settled principles of law on the subject, therefore, I cannot subscribe to the view of the learned counsel that discretion in summoning P. W.10 as Court- witness was not properly exercised.
' For the forgoing reasons, I see no force in this revision petition which is hereby dismissed.
Revision .