MUHAMMAD NAZIR vs THE STATE and 2 others

' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- In this petition order dated 15-11-2002 has been questioned in pursuance whereof order passed by the Additional Sessions Judge, Faisalabad dated 30-10- 2002 has been maintained.

2. Precisely stating facts of the case are that during pendency of criminal trial under sections 467/468/471/420/419/406/506/34, P.P.C. Magistrate Section 30, Faisalabad declined the request of respondent No,2 to file certified copies of certain documents during his own statement under the provisions of section 540, Cr.P.C. But said order was interfered with by the Additional Sessions Judge in his revisional jurisdiction in pursuance whereof permission has been accorded to the respondent under section 540, Cr.P.C. To ring on record these documents by allowing an application filed by him in this behalf. The learned Single Judge in Chambers of the Lahore High Court, Lahore maintained the order of the Additional Sessions Judge vide impugned judgment, relevant para. Wherefrom is reproduced below:-- "These documents are to be put to P.W.3, Irshad Ahmad whose evidence is in progress. Since section 540, Cr.P.C. Allows the Court to summon any witness or examine any witness; therefore, it is in the discretion of the Court to allow to examine any person even though he is not cited as witness.

In this particular case, P.W.3 is cited as witnesses and these documents which are sought to be presented and put to him are part of the record of P.W.3 and resolution of controversy hinges on the documents being put to P.W.3, therefore, the order of learned Additional Sessions Judge appears to have been passed to advance the cause of justice and to avoid technicalities. I do not see any reason for interference in the same, therefore, this petition is dismissed."

' The petitioner has challenged the above order by means of instant proceedings.

3. It is contended on behalf of the petitioner that as far as section 540, Cr.P.C. Is concerned it is meant to summon witnesses by the Court itself subject to the conditions laid down therein and it confers upon the Court the power to grant permission to bring on record documents from the custody of the complainant.

4. In response to notice, Hafiz Abdur Rehman Ansari, Advocate Supreme Court appeared and stated that in the interest of justice the complainant could produce the documents in his own statement but the trial Court had declined the request by unnecessarily making reference to section 540, Cr.P.C. Whereas according to him no application under section 540, Cr.P.C. Was moved by the respondent.

5. Ms. Yasmin Sehgal, A.A.-G. Appearing on behalf of the State contended that to do the complete justice between the parties the trial Court is empowered to receive any kind in evidence in exercise of its jurisdiction under Article 161 of the Qanun-e-Shahadat Order, 1984.

6. After hearing the parties' counsel and having gone through the relevant provisions of law we are of the opinion that as the complainant was recording his examination-in-chief, therefore, he had no need for moving a separate application seeking permission to produce documents because he being the complainant could have tendered any document in his statement subject to the permission of the Court to accept the same or otherwise in view of the relevant provisions of the law. However, if the Court had declined to receive the documents which were being tendered by the complainant then he could have moved an application for summoning the witness i,e, the custodian of the documents by invoking jurisdiction of the Court under section 540, Cr.P.C. Subject to the decision of the Court on it. Thus, this petition is converted into appeal and allowed, the impugned order is set aside with the observation that the complainant would be at liberty to tender such documents in his statement and if those documents are not received being contrary to law on the subject then the complainant would be at liberty to move an application under section 540, Cr.P.C. For summoning the custodian of those documents and if such application is moved it would be disposed of by the learned Court independently. As this matter is pending since long on the file of trial Court, therefore, it is desired that case shall be disposed of expeditiously.