SYED ABDULLAH SHAH and another vs STATE
This criminal revision petition challenges the order of the Additional Sessions Judge, Rawalpindi, which dismissed an application for summoning a Medical Officer and a DSP as court witnesses under Section 540 of the Code of Criminal Procedure 1898 in a murder case registered under Sections 302 and 34 of the Pakistan Penal Code 1860. The core legal question was whether the trial court was justified in refusing to summon material witnesses whom the prosecution withheld, on the ground that they were essentially defence witnesses. The Lahore High Court held that the trial court's refusal was erroneous because the prosecution is bound to bring all material evidence on record, and the court has an obligation under Section 540 to summon any witness whose evidence is essential for a just decision. The court laid down the principle that the prosecution must act in aid of justice rather than conceal evidence, and where material witnesses are withheld, the trial court is obligated to summon them as court witnesses to ensure a fair trial and even-handed justice.
- Whether the trial court is obligated to summon a material witness as a court witness under Section 540 of the Code of Criminal Procedure 1898 when the prosecution fails to produce them?
- Can the prosecution withhold material evidence or witnesses collected during investigation on the basis that they support the defence case?
- Does the refusal to summon investigating officers or medical officers who declared an accused innocent prejudice the trial, necessitating their examination as court witnesses?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 540, Code of Criminal Procedure 1898
ORDER
This criminal revision has been filed against the order dated 24.5.2004 passed by the learned Additional Sessions Judge, Rawalpindi, whereby he rejected the application filed for summoning the Medical Officer and Sardar Muhammad Maqsood Khan DSP Saddar in case Flit No, 156 dated 17.8.2003 registered under Sections 302/34 PPC at Police Station Chauntrs District Rawalpindi.
2. Learned counsel for the petitioner contends that the impugned order of the learned trial Court refusing to summon Dr. Irfan Khilji and Sardar Muhammad Maqsood Khan DSP as C.W. under Section 540 Cr.P.C. is in disregard of law and, thus, is not sustainable.
3. Conversely, the learned counsel opposed the arguments of the learned counsel for the petitioner and submitted that Section 540 Cr.P.C. cannot be used as vehicle of exploitation to secure presence of witnesses, who can be examined in defence. Learned State counsel has supported the impugned order.
4. Heard. Record perused.
5. Dr. Irfan Khilji has medically examined Tanzeer Haider Shah accused. Muhammad Maqsood Khan DSP in his investigation had found Syed Abdullah Shah and Syed Zaheer Haider Shah as innocent. The complainant/injured in his statement in Court admitted that Syed Tanzeer Haider Shah received injuries during the incident, but gave his own version of the incident. However, M.L.R. of Tanzeer Haider Shah is not on record, in absence whereof, the nature and seat of injuries cannot be ascertained.
6. As far as summoning of Muhammad Maqsood Khan DSP as CW is concerned, he declared Abdullah Shah and Zaheer Haider Shah as innocent in the case. In case he be summoned as defence witness, he will support his conclusion in investigation that Abdullah Shah and Zaheer Haider were innocent, while Tanzeer Haider Shah was guilty. Tanzeer Haider Shah in this eventuality will have no right to cross-examine, Muhammad Maqsood Khan DSP. His case will be badly prejudiced, if Maqsood Khan DSP is summoned as a defence witness.
7. Section 540 Cr.P.C. provides that the Court may at any stage of the trial summon any person as a witness or re-call or re-examine any person. Ample power is conferred on Court under this provision of law, which consists of two parts. First one, gives discretion to summon any person as a witness, while the second part makes it obligatory for the Court to summon any person as witness, if his evidence appears to be just and essential for the decision of the case.
8. Undoubtedly, in this case prosecution has failed to place on judicial record M.L.R. of Tanzeer Haider Shah. The name of Dr. Imran Khilji was also not cited in the calendar of witnesses.
Withholding of such an evidence is treated as a flaw in the prosecution evidence. The Court is arbiter between the parties. It has to keep the balance straight and see that even handed justice is provided to the parties, notwithstanding the adverse effect on the case of either side. The conclusion of the learned trial Court that prosecution was not bound to cite the Medical Officer, who medically examined Tanzeer Haider .Shah and Muhammad Maqsood Khan, who declared Abdullah Shah and Zaheer Haider Shah as innocent in the case as they were defence witnesses for all purposes is incorrect. The prosecution is bound to collect all material evidence and to place on record for a judicial verdict of the Court. State cannot be expected to conceal evidence like an ordinary litigant. The prosecution works in aid of justice and not for injustice. Its role should not be that of persecution. Both Dr. Imran Khilji and Muhammad Maqsood Khan DSP are material witnesses which the prosecution avoided to produce in Court. In this state of affair, it was obligatory upon the learned trial Court to summon them as Court witnesses, granting equal opportunity to the prosecution as well as the accused to cross-examine them and find out the truth.
9. For the above reasons, I allow this criminal revision, set-aside the order dated 24.5.2004 passed by the learned trial Court and direct that Dr. Imran Khilji Medical Officer DHQ Rawalpindi and Sardar Muhammad Maqsood Khan DSP/SDPO Saddar Rawalpindi be summoned as Court witnesses: