Khawaja NASEER AHMED vs THE STATE through National Accountability
This petition challenged a trial court order allowing the prosecution's application under Section 540 of the Code of Criminal Procedure 1898 to examine five additional witnesses to prove a charge under Section 31-A of the National Accountability Ordinance 1999. The petitioner argued that the prosecution was attempting to fill lacunae in its case and that the evidence was not essential for a just decision. The High Court observed that Section 540, Code of Criminal Procedure 1898, empowers the court to summon witnesses at any stage if their evidence is essential for a just decision. The Court held that the evidence of four of the witnesses was indeed essential to determine the charge under Section 31-A, as the offence occurred pending adjudication and these witnesses were not in the original list. However, regarding the fifth witness, Wazir Ali, the Court found that no material had been placed before the trial court to justify his examination. Consequently, the Court upheld the trial court's order regarding the four witnesses but set it aside concerning Wazir Ali, granting the prosecution liberty to pursue legal remedies for his examination.
- Can the prosecution examine witnesses not included in the original list of witnesses under Section 540 of the Code of Criminal Procedure 1898?
- Is the power of the court under Section 540 of the Code of Criminal Procedure 1898 exercisable at any stage of the proceedings?
- Does the examination of additional witnesses under Section 540 of the Code of Criminal Procedure 1898 constitute an impermissible attempt to fill lacunae in the prosecution's case?
- Must the prosecution provide material justifying the necessity of a witness before the court can exercise its discretion under Section 540 of the Code of Criminal Procedure 1898?
- Section 540, Code of Criminal Procedure 1898
- Section 10, National Accountability Ordinance 1999
- Section 31-A, National Accountability Ordinance 1999
ORDER
1. Brief facts given rise to the present petition are that on 5-12-2005 the appellant was charged for offence punishable under sections 10 and 31-A of National Accountability Ordinance, 1999. The prosecution concluded the evidence on the main charge of section 10 by examining the Investigating officer. Thereafter on 24-8-2006 the Special Prosecutor moved an application under section 540, Cr.P.C. For examining five following witnesses to prove the chat ge under section 31-A of the said Ordinance:--
(1) Investigating Officer Illahi Bux Tunio.
(2) Wazir Ali, FC. F.I.A.
(3) Salim Akhtar
(4) Mst. Akhtar Begum.
(5) Khawaja Tanveer Ahmed.
2. ' The learned trial Judge after hearing the parties counsel allowed the said application under the impugned order, dated 25-9-2006. The petitioner has prayed for setting aside the said order.
3. ' We have heard Advocate for the petitioner, DPGA and perused the record of this case very carefully.
4. ' Learned Advocate for the petitioner has stated that section 540, Cr.P.C. Is not attracted; that the statement of Wazir Ali, one of the witnesses who is to be examined, is neither mentioned in the application nor his statement was recorded by the Investigating Officer nor it was placed before the trial Court therefore, there was no material with the trial Court for allowing the application in respect of Wazir Ali; that the prosecution has tried to fill the lacuna in the case as the Investigati Officer did not state anything on the charge under section 31-A of the said Ordinance; that the statements of witnesses Salim Akhtar, Mrs. Akhtar Begum and Khawaja Tanveer Ahmed are not essential to the just decision of the case as they stated in their statements that the petitioner had left the country prior to warrants.
5. ' Conversely the learned DPGA has stated that section 540, Cr.P.C. Is attracted at any stage of proceeding; that the said section is applicable under the present circumstances of the case; that the witnesses are essential to the just decision of the case. However, he has conceded that no material was placed before the trial Court about the statement of P.W. Wazir Ali. He has supported the impugned order to the extent of witnesses except Wazir Ali, for which he has stated that the prosecution would adopt the legal course to examine the said witness, if permitted by the trial Court.
6. We have given due consideration to the arguments gone through the material available on record and found that section 540, Cr.P.C. Is attracted at any stage of the proceedings. It is divided into two parts, first part is discretionary and second part is mandatory. If the trial Court finds that the evidence of any witness covered by section is essential to the just decision of the case then trial Court is bound to call the said witness. In the present case prosecution wanted to examine five witnesses namely (1) Illahi Bux Tunio, Investigating Officer who was entrusted with the execution of warrants, for the arrest of petitioner (2) Wazir Ali, F.C. F.I.A. No details of his statement are mentioned in the application, (3) Salim Akhtar, (4) Mst. Akhtar Begum and (5) Khawaja Tanveer Ahmed, their statements were recorded by Illahi Bux Tunio who had tried to execute the NBWs for arrest of the petitioner issued by the trial Court. The evidence of the above witnesses was to be recorded to prove the charge under section 31-A of the NAB Ordinance. The evidence of the Investigating Officer, who had tried to execute the NBW for arrest of petitioner issued by the trial Court would be material to prove ingredients of section 31-A of the Ordinance. The evidence of Salim Akhtar, Mrs. Akhtar Begum and Khawaja Tanveer Ahmed would show that the Investigating Officer made enquiries from them about the whereabouts of the petitioner and they gave certain statements, without going into details discussion of their evidence whether the same would prove the charge or otherwise. However, the statements of all these four witnesses would definitely help the trial Court to arrive at the conclusion whether the charge was proved or otherwise as such the evidence is essential to the just decision of the case. Therefore, the trial Court was bound to examine the said witnesses. It is pointed out that the offence punishable under section 31-A was committed pending adjudication of the reference as such the name of witnesses were not mentioned in the list of witnesses filed along with the reference. Therefore, the prosecution was required to move application under section 540, Cr.P.C. Before the trial Court to examine the witnesses whose names are not mentioned in the list of witnesses filed with the reference. As such it cannot be held that the prosecution wanted to fill the lacuna in the case. Furthermore such application was made within time as the same can be made at any stage of the proceedings. It appears that the prosecution first examined the witnesses on the main charge of section 10 and thereafter moved the application to lead evidence on the second charge under section 31-A of the Ordinance.
7. ' As regards the statement of Wazir Ali no material was placed before the trial Court to ascertain as to whether or not his statement was essential to the just decision of the case. The impugned order is silent with regard to the said aspect of the case. The learned DPGA has frankly conceded that no material was placed before the trial Court for arriving at the required conclusion as such the statement of Wazir Ali is not essential to the just decision of the case at this stage for the reasons mentioned above. However, learned DPGA has stated that the Special Prosecutor would move proper application with all the details of the statement of Wazir Ali to invoke the provisions of section 540, Cr.P.C. He may adopt any legal course to examine the said witness, if permissible under the law.
8. After considering the material available on record , we are of the considered view that the impugned order does not suffer from any illegality or irregularity in respect of examination of witnesses except the examination of witness Wazir Ali. The impugned order is maintained to the above extent, the petition is disposed of in the above terms.
9. ' The learned Advocate for the petitioner has stated that he will file appeal against the above order, therefore, he has requested that the order may be made operative after expiry of 10 days from today. .