MUHAMMAD AHMAD vs THE STATE and 5 otherss
This criminal petition arises out of FIR No. 245 registered under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979 and section 411 of the Pakistan Penal Code 1860. The petitioner-complainant challenged the trial court's order dismissing his application under section 540 of the Code of Criminal Procedure 1898 for summoning a previously given-up witness and an arresting police officer after the close of prosecution evidence and the recording of the statement under section 342 of the Code of Criminal Procedure 1898. The core legal question was whether the trial court was bound to summon such witnesses under section 540 at a belated stage. The Lahore High Court held that a party cannot be permitted to fill gaps in evidence or prolong proceedings, especially where the witness was voluntarily given up and the application was moved malafide. The petition was dismissed in limine, establishing that powers under section 540 should not be exercised to allow parties to remedy omissions at a belated stage.
- Can a court summon a previously given-up witness under section 540 of the Code of Criminal Procedure 1898 after the close of prosecution evidence?
- Whether a complainant can be allowed to fill up gaps in the prosecution case by summoning new witnesses at a belated stage?
- Is an application maintainable under section 540 of the Code of Criminal Procedure 1898 to summon an officer who neither investigated the case nor had his statement recorded under section 161?
- Section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 173, Code of Criminal Procedure 1898
- Section 411, Pakistan Penal Code 1860
- Section 540, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
ORDER
' MUHAMMAD FARRUKH MAHMUD, J.---The relevant facts leading to this petition are that on the statement of Muhammad Ahmad/petitioner, case F.I.R. No,245 was registered at Police Station Mcleod Ganj, District Bahawalnagar, on 22-11-2004, for offence under section 17(3) (Haraabah) of the Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979. After completion of investigation, report under section 173, Cr.P.C., challan was submitted on 17-12-2004. Offence under section 411, P.P.C. Was also added in the challan.
2. During trial, on the application of the petitioner, Rasheed Ahmad P.W. Was given up as unnecessary vide order dated 20-10-2005. On 10-5-2006, the petitioner moved an application under section 540, Cr.P.C. For summoning Rasheed Ahmad witness who was previously given up and one A.S.-I. Muhammad Anwar who had arrested the accused on 3-12-2004. His application was dismissed by the learned trial Court vide order dated 24-5-2006. Hence, this petition.
3. Learned counsel for the petitioner has argued that the Court could summon the witnesses under section 540, Cr.P.C. At any stage of trial; that Rasheed Ahmad was an important witness and without recording of his statement, the accused could not be convicted under the Shariat Law (Haraabah). Similarly, according to the learned counsel, it was necessary to record the statement of Muhammad Anwar, A.S.-I., who had arrested the accused on 3-12-2004. The learned counsel has placed reliance on the case of Jaffar v. The State (1997 PCr.LJ 87).
4. I have heard the learned counsel for the petitioner as well as the learned A.A.-G. And have also gone through the relevant record of the case and the precedent cited by the petitioner's learned counsel.
5. It has been noticed that Rasheed Ahmad witness was given up by the learned trial Court on the application of the petitioner/complainant himself on 20-10-2005. Subsequently, after the lapse of seven months, he moved an application for summoning and recording the statement of Rasheed Ahmad. The application was moved after the closure of the prosecution evidence and after the recording of the statement of the accused under section 342, Cr.P.C. It is manifest that the intention behind the application was to prolong the agony of the accused. The argument of the learned counsel for the petitioner that the statement of Rasheed Ahmad was necessary for conviction of the accused under the Shariah Law is fallacious for the reasons; firstly, that this fact was known to the petitioner since , the date of framing of charge and he himself moved the application for giving up Rasheed Ahmad witness as being unnecessary; secondly, that for conviction under the Shariah Law, the witnesses are to go through the process of Tazkiya-al-Shuhood, which can only be done by Muzakkis which facility is not available; and thirdly, that the petitioner cannot be allowed to fill up the gaps left by the prosecution. The prayer of the petitioner for summoning Muhammad Anwar/A.S.-I. As witness is also devoid of any force, as he was not the Investigating Officer (1.0.) nor his statement was recorded under section 161, Cr.P.C. The learned trial Court has rightly concluded that his statement was not necessary for arriving at just decision of the case. As regards the case relied upon by the learned counsel for the petitioner, the same does not apply in the circumstances of the instant case, as in that case the given up witness was summoned on the application of the accused and not that of the complainant.
6. For the foregoing reasons, I find no merits in this petition which is dismissed in limine.
7. A copy of this order would be sent to the learned trial Court forthwith.