TANVIR BASHIR ANSARI, J.- This judgment will dispose of Criminal Revision No. 64 of 2001 and Criminal Revision No. 132 of 2001, as both these revisions arise out of the same judgment.
2. Briefly, the facts are that upon the complaint of Haji Abdul Qayyum, a case FIR No. 307, dated 19.10.1998 under Sections 302/34, PPC was registered at P.S. Airport, 'Rawalpindi in which it was alleged that the petitioner along with three other accused caused the death of Shahzad Hussain and Tanvir Hussain. After investigation, the challan was put-up and at present, the trial is in progress in the Court of a learned Addl. Sessions Judge, Rawalpindi.
3. After the prosecution recorded its evidence, the petitioner Mazhar Hussain filed an application under Section 540, Cr.P.C. The petitioner contended therein that he was got medically examined by the police on 28.10.1998 by Dr. Muhammad Ashraf, Medical Officer of DHQ Hospital, Rawalpindi, It was further contended that the prosecution has maliciously not entered the name of the said doctor in the calendar of witnesses, It was the stand of the petitioner that the statement of the said doctor is necessary for a just decision of the case. This application was resisted. However, the learned Trial Court accepted the said application of 20.4.2001 and Muhammad Ashraf, M.O. Was summoned as a Court witness.
4. On 24.4.2001, the statement of Dr. Muhammad Ashraf was recorded as CW1. In his examination- in-chief, he confirmed Exh.DC as correct carbon copy of MLR of the petitioner which according to the witness was written by him and bore his signatures. He also confirmed having signed injury statement Exh.DB of the petitioner. After completion of the examination-in- chief of CW1, the learned counsel for the complainant raised the objection that CW1 was in fact a defence witness and that it is incumbent upon the accused to cross-examine CW1 first and that the complainant side shall cross-examine him thereafter. On the other hand, it was contended by the learned counsel for the accused before the learned Trial Court that since the witness was summoned as a Court witness under Section 540, Cr.P.C, and as it is the primary duty of the prosecution to prove the case against the accused, it shall be the complainant who is obliged under law to commence the cross-examination and in case, any incriminating circumstance is brought out against the accused, the cross examination shall then be conducted by the accused. Vide order dated 2.6.4.2001, the learned Trial Court held that as the Medical Officer was summoned by the accused, he would be deemed to be a defence witness, in which occasion, the defence should cross- examine CW1 prior to the cross-examination of the prosecution. The learned Trial Court, while coming to this conclusion, was Influenced by the fact that the prosecution did not cite him as a prosecution witness and that Dr. Muhammad Ashraf is the person who medically examined the accused and also issued the MLR about that examination. This criminal revision seeks to challenge the said order passed by the learned Trial Court.
5. Sardar Muhammad Ishaque Khan, Advocate for the petitioner contended that it was the first version of the petitioner at the time of arrest that hd was subjected to aggression by the deceased persons and was injured during the occurrence and that the petitioner acted in the exercise of right of self-defence. To support this contention, the learned counsel for the petitioner referred to the statement of the I.O. Wherein he deposed to have recorded the statement of the petitioner at the time of arrest, It was further urged that the injury statement of the petitioner was prepared by Nazir Ahmad upon the direction of the I.O. The learned counsel for the petitioner then referred to the statement of Ghulam Mustafa, PW-10 and urged that the petitioner was got medically examined by the police and that the MLR Exh.DC was received by him.
6. In nutshell, the contention of the learned counsel for the petitioner is that the first version of the petitioner was that he was subjected to aggression by the deceased persons and it was in this context that the police got the petitioner medically examined. Although, the MLR was produced along with the challan, the name of Dr. M. Ashraf who conducted the said examination was maliciously not included in the calendar of witnesses. According to the learned counsel, the witness CW1 was a material witness as it was essential for a just decision of the case. The learned counsel for the petitioner referred to a single Bench judgment of this Court reported in Muhammad Akhtar v. The State (1971 P.Cr.L.J. 1081) to contend that Section 540, Cr.P.C, confers unlimited powers to summon any witness as a Court witness if his evidence was essential for just decision of the case, It is immaterial whether or not their names are entered in the calendar of witnesses. Reliance was also placed on the case of Muhammad Azam v. Muhammad Iqbal, etc. (PLJ 1984 SC 192) to urge that where a Court fails to summon a material witness whose evidence is essential, it would result in mis-carriage of justice. He also urged that it is the duty of the prosecution to place all available evidence likely to throw any light upon crime before the Court and withholding of such evidence is likely to be treated by the Court as flaw in evidence of prosecution. According to the learned counsel, under Section 540, Cr.P.C, it is obligatory for the Court to examine such witnesses as Court witnesses. He placed reliance upon the case of Muhammad Hussain and 2 others v. The State (1970 P.Cr.L.J. 1330). Reliance was also placed on a Single Bench judgment reported in Muhammad Iqbal Khetana v. The State (1992 M LD 930) to contend that Section 540, Cr.P.C, is intended to enable the Court to get at the truth., Strength for this proposition was also drawn from the rule laid down in Abdus Salam v. The State (2000 SCM R 102), according to which, power to summon material witness under Section 540, Cr.P.C, 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 private complaint as the case may be.
7. On the other hand, Malik Rab Nawaz Noon, Advocate for the complainant contended that admittedly the CW was summoned upon the application of the petitioner. According to him, the petitioner had concocted the version of .Being attacked and thereby acting in self-defence.
According to the learned counsel, Dr. Muhammad Ashraf had examined the accused persons and the defence wanted to prove its plea by summoning the said Medical Officer, In that event, according to the learned counsel, it was obligatory upon the petitioner to have moved under Section 265-F(7), Cr.P.C, for summoning the said witness as defence witness. The application under Section 540, Cr.P.C, was used merely as a device to obtain unlawful advantage which is the duty of the Courts to prevent. Learned counsel further contended that although the Court has very wide powers to summon Court witnesses but these powers imposed the corresponding responsibility of the same degree to use these powers with care and circumspection. He placed reliance upon the case of Painda Gul and others v. The State (1987 SCM R 886) and strongly contended that discretionary power of the Court to examine any witness as a Court witness is to be exercised with caution and in accordance with the provisions of Code of Criminal Procedure and general principles of criminal law. According to the rule laid down in this report, Courts must guard against exploitation of these powers by parties who had ample opportunity to produce evidence within their knowledge and must not put one of the parties in a position of advantage vis-a-vis the other.
8. Criminal Revision No. 132 of 2001 has been filed by the complainant against the order dated 20.4.2001 passed bv the learned Trial Court by which the said Dr. Muhammad Ashraf was summoned under Section 540, Cr.P.C. The grounds of the said criminal revision are identical with and correspond to the arguments as advanced by the learned counsel for the complainant in Crl.
Rev. No. 64/2001.
9. The arguments of the learned counsel for the parties have been heard and record perused.
10. It is an admitted fact that the petitioner was got medically examined by the police and the relevant MLR was included in the challan. The MLR has been produced on the record by the learned Trial Court as Exh.DC through the statement of PW10. The injury statement of the petitioner is also on the record as Exh.DB. Without commenting upon the truthfulness of the defence version, lest it prejudices the case of either party during the trial, suffice it to say that the Medical Officer who conducted the medical examination of the petitioner is a material witness and the essential for a just decision of the case. The powers of the Court to summon material witness or examine person present are contained in Section 540, Cr.P.C, which is reproduced:-
540. Power to summon material witness or examine person present.- "Any Court may, at any stage or any inquiry or trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, through not summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it essential to the just decision of the case."
11. This power is not subject to any condition and can be exercised whether or not a person is cited as a witness in the challan. The only requirement for its invocation is that a person should a material witness and his evidence should be essential for just decision of the case. The object of Section 540, Cr.P.C, is intended to enable the Court to get at the truth and to arrive at a just decision. This power is not hedged by any technicalities, It also needs no gain saying that the prosecution is duty bound to place all available evidence likely to throw any light upon crime before the Court. The act of withholding of any such evidence is likely to be-treated by the Court as flaw in evidence of the prosecution. An obligation is cast upon the Court to examine such material witnesses as Court witnesses, It is beneficial to follow the rule laid down' in Muhammad Azam's case (supra) where the failure of the Court to comply with the mandatory provisions of second part of Section 540, Cr.P.C, was held to occasion miscarriage of justice. Indeed the said section of Code of Criminal Procedure comprises of two parts. The first part gives a purely discretionary authority as the word used therein is "may" while the second part is mandatory as the word "shall" has been used to emphasize its import and binds the Court to examine any witness if his evidence is essential to the just decision of the case, It is true that such wide powers have to be exercised with the corresponding obligation to use such powers with caution and circumspection. There is no cavil with the proposition that this power must not be used as a vehicle of exploitation, by which, one party may obtain an illegal advantage over another, It is also correct that such a power must be exercised in accord with the provisions of the Criminal Procedure Code and general principles of Criminal Law. In this respect, the rule laid down in Painda Gut's case (supra) has to be followed.
However, through application of this rule, the power of the Court under Section 540, Cr.P.C, is strengthened and regulated and not mitigated.
12. The line of distinction between a witness for the prosecution or of defence on the one hand and a Court witness on the other may sometimes be very thin, In order to determine the status of a witness, the entire attending circumstances have to be kept in view, In the instant case, for a variety of factors noticed hereinbefore, it was a correct exercise of jurisdiction by the learned Trial Court to summon the Medical Officer as Court witness. The said witness has already made his statement in examination-in-chief. According to the principles of criminal administration of justice, it is the duty of the prosecution to prove its own version and to discredit the version of the accused, It was for this reason that the police got the petitioner medically examined and placed the MLR on the record, It is incumbent upon the prosecution to put questions to the Court witness first and if any incriminating circumstance against the accused emerges therefrom, the accused may then cross-examine the Court witness, In this view of the matter, the findings of the learned Trial Court that the accused must cross-examine the Court witness first whereafter the prosecution shall conduct the said exercise is not correct.
13. Resultantly, Criminal Revision No. 64 of 2001 succeeds and the order dated 26.4.2001 passed by the learned Addl. Sessions Judge, Rawalpindi is set-aside. As sequel, the Criminal Revision No. 132/2001 has no merit which is dismissed, leaving the parties to bear their own costs.