Through this petition under sections 435/439, Cr.P.C. The petitioner seeks setting aside of order dated 20-1-2003 passed by the learned Additional Sessions Judge, Sahiwal, by which the application moved by the petitioner under section 540, Cr.P.C. For summoning of Rana Muhammad Younas, Naib-Tehsildar as C.W.2 to prove Rapt Roznamcha No.258 dated 4-3-2000.
2. The brief facts of the case are that the petitioner is an eye-witness in case F.I.R. No.173 registered on 2-7-2000 under sections 302/109/148/149, P.P.C. At Police Station Dera Rahim. District Sahiwal against the respondents. Report, was submitted under section 173, Cr.P.C. And the charge was framed on 8-6-2002, whereafter prosecution evidence was already recorded when the application under section 540, Cr.P.C. Was moved by the petitioner for summoning Rana Muhammad Younas, Naib-Tehsildar as C.W., which has been dismissed through the impugned order. It is pertinent to mention here that earlier an application was moved for re-summoning of Muhammad Irshad Patwari P.W.5 which was also dismissed by the learned trial Court. Criminal Revision No.391 of 2003 filed by the petitioner against the said order was also dismissed by this Court vide order dated 14- 10-2002, however, with the observation, that if the petitioner moved any other application under section 540, Cr.P.C. The learned trial Court can consider and decide the same on merits without being influenced by the orders passed by this Court.
3. Learned counsel for the petitioner contends that Rapt No.258 dated 4-3-2000 proves the possession of the petitioner over the disputed land and this rapt was produced before the Investigating Officer on 16-8-2000 when the investigation was being conducted by Crime Branch. It is further contended that the proceedings were taken on the application moved by the petitioner's father through said Rapt No.258 which was not placed on the record by the police in its report under section 173, Cr.P.C. But it is available in the police file. He further contends that under section 540, Cr.P.C. The Court is bound to summon any person as a witness irrespective of factum of delay if his evidence appears to it essential for just decision of the case and due to non-production of the requisite document on the record the prosecution case will be seriously prejudiced. It is also contended that the learned trial Court without considering the arguments of the petitioner has passed the impugned order arbitrarily which is liable to be set aside by this Court. It is further contended that against the said proceedings taken by the Assistant Commissioner, F.A.O. No.31 of 2000 was filed by Abdul Jabbar accused wherein C.M. No.527/C-2000 was filed by Sahib Din and Shah Muhammad. For the clarification of the status qua order which was disposed of on 6-3-2000, hence production of Rapt No.258, on record does not amount to fill up lacuna in the prosecution case, which document is already in the knowledge of the accused party being also produced during the investigation but for the reasons best known to the police the same was not attached with the police file. Prays for acc6ptance of this revision petition.
4. On the other hand learned counsel for the respondents opposes this petition on the ground that the prosecution cannot be allowed to fill up the lacuna in its evidence and if this revision petition is allowed it will prejudice the case of the respondents who have already cross-examined the prosecution witnesses at length and this move has been initiated in order to frustrate the defence version taken by the accused during the cross--examination on the P.Ws:
5. Learned State Counsel has also supported the impugned order.
6. I have heard the learned counsel for the parties and also perused the record. There is no cavil to the proposition that the prosecution cannot be allowed to fill up the lacunas in its evidence. The report under section 173, Cr.P.C. Was submitted and the said documents were not placed on the judicial file by the Investigating Officer. Subsequently charge was framed and statements of the P.Ws. Have already been recorded. No such application was moved earlier when the prosecution was asked to lead evidence in support of its case in spite of that it is not a new fact having come into knowledge later on. There does not appear any plausible reason for moving this application at such a belated stage. It seems that this move has been initiated at a belated stage in order to frustrate the defence version, who have already completed their cross--examination on the witnesses. Under section 540, Cr.P.C. It is the discretion of the Court to summon any person if his evidence appears to it essential to just decision of the case and under subsection (3) of section 265-F, Cr.P.C. The Court is empowered to refuse summoning of any such witness, if it is of the opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. I find that the learned trial Court has rightly refused to exercise its discretion under section 540, Cr.P.C. And the impugned order is well-reasoned, which is maintained.
7. For the foregoing reasons, there is no merit in this revision petition, which is dismissed.
H.B.T./M-1815/L