' MUNIR A. SHEIKH, J.---This petition for leave to appeal is directed against the judgment, dated 15- 3-1999 of the Lahore High Court, Lahore through which Criminal Revision Petition No,228 of 1998 filed by the petitioner against the orders dated 31-1-1989 and 6-2-1989 of the District Magistrate and the learned Sessions Judge, respectively has been dismissed.
2. The facts giving rise to this petition for leave to appeal shortly stated are that the petitioner filed a private complaint against the respondent under sections 497 and 498, P.P.C., in the year 1972 which remained pending in various Courts. Learned counsel for the respondent does not deny that after recording the preliminary evidence, the respondent was summoned to face the trial. On 13-1- 1989, the statement of the complainant was being recorded when he wanted to produce some documents in evidence. He also expressed his wish to explain those documents in his statement to which an objection was taken by the learned counsel for the respondent for which the matter was adjourned to 6-2-1989. In the meantime, the case was transferred to the Court of learned Sessions Judge, Lahore. On 6-2-1989, while making the statement, the complainant-petitioner wanted to bring on record a number of documents but the Court returned those documents by observing that the same were irrelevant. Another document was sought to be produced which was marked 'B' by the trial Court but was not exhibited as learned defence counsel objected to its admissibility.
3. On 16-2-1989, the petitioner filed an application for exhibition of documents on the plea that the Court could not have rejected the same and the documents merited to be received in evidence.
On 13-11-1994, however, the petitioner closed his evidence and his counsel made a statement that application dated 16-2-1989 being incomplete, he would move a fresh application. The fresh application was filed on 15-11-1994 in which 22 documents were listed which the complainant wanted to be received in evidence. This application was contested by filing reply. It was urged in defence that at that stage, the said documents could not be allowed to be brought on record and the same were also inadmissible. It was also urged that the orders of the District Magistrate dated 31-1-1989 and learned Sessions Judge dated 6-2-1989 had attained finality and in the presence of the said orders, the said documents could not be received in evidence. Through order dated 26-5- 1998, the learned Sessions Judge i.e,, the trial Court dismissed the said application dated 15-11-1994 against which revision petition filed by the petitioner has been dismissed through the impugned judgment dated 15-3-1999 by a learned Judge in Chamber of the Lahore High Court against which leave to appeal has been sought.
4. Learned counsel for the petitioner argued that there was no order passed by the District Magistrate on 31-1-1989 as the said Court merely recorded the objection raised on behalf of the defence as to admissibility of the documents during the recording of statement of the complainant when documents were sought to be produced. As to order dated 6-2-1989, it was argued that the same was no order in the eye of law as the learned Sessions Judge did not state any reasons with reference to these documents keeping in view the provisions of law under which the respondent was being prosecuted. It was maintained that it did not amount to a judicial order which could close the right of the complainant to make application for bringing on record the documents and get a speaking judicial decision in the matter, therefore, the petitioner could not be deprived of the opportunity of getting his case decided as to relevancy or admissibility of those documents by a speaking order which is the least requirement of law.
5. We have noticed that the learned Sessions Judge vide order, dated 26-5-1998 impugned in the criminal revision petition before the High Court rejected the application mainly on the ground that the Court had no power to allow the complainant to produce documents at that stage, for the only enabling provision in the Criminal Procedure Code empowering the Court to receive additional evidence was section 540 which permits only the examination of a witness and does not speak of a document. The learned Judge in Chamber of the High Court has, however, proceeded on the assumption that recording of objection of the defence counsel in the proceedings dated 31-1-1989 when some documents were sought to be produced that the same were irrelevant, was an order passed by the Court which had according to him, attained finality and also held that order, dated 6-2-1989 returning the documents as irrelevant had attained finality assuming as it was a judicial order in the presence of which the Court was not vested with the power to allow the production of documents at that stage which is permitted, would amount to reviewing the said orders dated 31- 1-1989 and 6-2-1989. The reasons, however, recorded by the Trial Court in the order, dated 26-5- 1989 impugned in the criminal revision petition that it had no power to allow the complainant to produce documentary evidence under the Criminal Procedure Code assuming as if the only provision existing in the Criminal Procedure Code was section 540 which permits only the recalling of a witness and not production of documents were neither attended to nor disposed of.
6. The view taken by the trial Court that the only provision in the Criminal Procedure Code as regards production of additional evidence was section 540, as such, the documents could not be allowed to be produced, amounts to refusal to exercise jurisdiction otherwise vested in the Court. A number of provisions of the Criminal Procedure Code such as section 241-A, Cr.P.C., under which the complainant could rely on documents and append copies thereof to be supplied to the accused person. This section was added through amendment in the year 1972 after the filing of the complaint, therefore, it would be unjust to hold that the complainant was debarred from producing documents at a subsequent stage, for when the complaint was filed in this case, the complainant was not required to attach all the documents alongwith it, therefore, his omission to file the same at that point of time could not by itself be used against them to hold him responsible for not producing the documents at the relevant time as required by law. The insertion of section 241-A, Cr.P.C. Enables the complainant to file documentary evidence with the complaint, for the law makers made their intention expressly clear that documentary evidence in support of a complaint could be allowed to be produced at the instance of the complainant. The only require-ment was that copy of the same was to be supplied to the accused person.
7. We have noticed from the copies of the proceedings produced in this petition .That while declining the request of the complainant to produce documents in his statement, an observation has been made by using the words 'preliminary evidence' as if the statement was being recorded at the preliminary stage before the summoning of the accused person whereas his statement was being recorded during the trial of the respondent as he had already been summoned by the Court to face trial.
8. The reasonings given by the trial Court that it was not vested with the power to allow production of documents at that stage are not supported by law. A study a Chapter VII of Criminal Procedure Code and in particular section 94, etc., reveal that the Court was vested with the power to entertain and allow production of documentary evidence during the trial, inquiry, etc., therefore, it was not correct that the only provision in the Criminal Procedure Code empowering the Court to record additional evidence by recalling witness was section 540, Cr.P.C., which resulted in failure of the Court to exercise jurisdiction vested in it under the law. We are in agreement with the learned counsel for the petitioner that recording of objection of the defence counsel in the proceedings that 31-1-1989 that documents sought to be produced were inadmissible did not amount to an order passed by the Court as the record of the proceedings reveals that the Court did not record its findings and pass an order holding the said documents to be inadmissible or irrelevant, therefore, assumption of the learned Judge in Chamber of the High Court that the same was an order and therefore, had attained finality is not tenable. As regards order dated 6-2-1989 by which the trial Court mechanically returned the documents by observing that the same were irrelevant in our considered view is no order in the eye of law and could not be made basis for debarring the petitioner from exercising his right of making application for the consideration of the Court by application of judicial mind by examining each document and then to decide about their relevancy or admissibility. The Court is required to pass a speaking order after application of judicial mind to each document with reference to the facts of the case by expressing the opinion as to how they were considered to be irrelevant or inadmissible which having not been done, therefore, the said 'order could neither be held to disentitle the complainant to get a judicial decision when a formal application enlisting the documents had been filed nor the Court was divested of the powers to pass fresh order. The case of the complainant as regards production of those documents in evidence did not receive proper adjudication as regards their admissibility and relevancy by any of the Courts, therefore, we are not inclined to uphold the order passed by the Trial Court and the impugned judgment of the learned Single Judge of the High Court, for if the same are maintained, it would amount to perpetuate an illegality.
9. When asked, learned counsel for the respondent has admitted that the statement of the respondent/accused person has not yet been recorded, therefore, the Court should have passed order based on reasons as regards the question of admissibility and relevancy of the said documents and if found admissible or relevant by giving reasons after examining each document with reference to the facts of the case, the copies of the same could be delivered to the accused person to make his defence plea in the light thereof. In case the documents are held to be neither relevant nor admissible, request for production of the same in evidence shall be rejected by reasons the same would end the controversy leaving the parties or any of them if aggrieved by the order to challenge the same in further proceedings in appeal against final judgment as the case may be.
10. Since we have heard learned counsel for both the parties in detail, therefore, this petition is converted into appeal and the same is accepted, observation dated 6-2-1989, order dated 26-5- 1998 made by the trial Court and the impugned judgment dated 15-3-1999 passed by the learned Judge of the High Court are set aside and the trial Court is directed to decide afresh the request of the complainant as regards production in evidence of the documents in the light of the observations made above and thereafter to proceed with the case. As the case is pending since 1972, therefore, the trial Court is directed to expedite the proceedings and if possible proceed with same day to day and decide it within a shortest possible period. There will, however, be no order as to costs.