MUHAMMAD AMIN and another vs THE STATE
This criminal revision petition under Section 439 of the Code of Criminal Procedure 1898 challenges an order passed by the Additional Sessions Judge, Faisalabad, whereby the petitioners' application to summon a Superintendent of Police as a defence witness was dismissed. The core legal question was whether the trial court was justified in refusing to summon the police officer as a witness under Section 265-F(7) of the Code of Criminal Procedure 1898 without recording solid reasons. The Lahore High Court held that the trial court committed a material illegality by refusing to summon the witness without providing proper reasons, noting that an accused has the right to produce defence witnesses unless the application is solely for vexation or delay. The revision petition was accordingly allowed, the impugned order was set aside, and the trial court was directed to summon the witness. The key principle laid down is that a trial court must record solid reasons in writing when declining to issue process for the production of a defence witness under Section 265-F(7) of the Code of Criminal Procedure 1898.
- Whether a trial court is bound to issue process for compelling the attendance of a defence witness under Section 265-F(7) of the Code of Criminal Procedure 1898?
- Is it mandatory for the trial court to record solid reasons in writing for declining to summon a defence witness?
- Can an accused person produce an investigation officer as a defence witness if deemed relevant to their case?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 439, Code of Criminal Procedure 1898
- Section 265-F(7), Code of Criminal Procedure 1898
ORDER
' ABDUL SHAKOOR PARACHA, J.--- Muhammad Amin and Muhammad Latif both sons of Muhammad Boota who being accused were facing trial in case registered vide F.I.R. No,640 dated 13-9-2002 for offence under sections 302/148/149, P.P.C. At Police Station Chak Jhumra, District Faisalabad. Through this revision petition under section 439, Cr.P.C. The petitioners impugn the order, dated 9-3-2005 passed by the learned Additional Sessions Judge, Faisalabad whereby the learned Judged refused to summon Usama Mumtaz Raja, S.P. Saddar as defence witness.
2. Learned counsel for petitioner contends that Usama Mumtaz Raja, S.P. Saddar conducted the investigation, therefore, he was necessary and relevant witness for the just decision of the case; further that under subsection (7) of section 265-F, Cr.P.C. It was mandatory for the Court to issue process for compelling the attendance of any witness for examination or the production of any document or other thing, unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice.
3. Conversely, learned State counsel defended the impugned order and contends that Usama Mumtaz Raja S.P. Saddar did not conduct the investigation of the case and he was not relevant and necessary witness, application was moved by the accused to summon Usama Mumtaz Raja, S.P.
Saddar as defence witness only with a purpose to delay the trial, therefore, revision petition is liable to be dismissed.
4. I have heard the arguments of the learned counsel for parties and perused the record. Under subsection (7) of section 265-F, Cr.P.C. It was mandatory for the Court to issue process for compelling the attendance of Usama Mumtaz Raja, S.P. Saddar as a witness for examination.
Unless application is made for summoning of witness for the purpose of vexation or delay or to defeat the ends of justice, the Court may refuse to call defence witness but at the same time the Court is obliged to record reasons for declining to issue process for production of defence witness.
To my mind the Court had not recorded any solid reasons in writing for declining to issue process for production of above stated defence witness. It is the right of the accused-petitioners to produce as many as witnesses as they like in their defence. According to them, Usama Mumtaz Raja, S.P. Saddar, had conducted the investigation of the case. In this view of the matter, he was relevant and necessary witness for the purpose of defence of the accused-petitioners. Whether the evidence of Usama Mumtaz Raja, S.P. Saddar, is helpful to the accused-petitioners and could be relied upon is a question which can be decided at the time of disposal of the main case. It is premature to say that the opinion of the police is either binding on Court nor have any evidentiary value. Learned Additional Session Judge, Faisalabad, has committed material illegality by refusing to summon Usama Mumtaz Raja, S.P. Saddar as defence witness. This being so, impugned order, dated 9-3-2005 passed by learned Additional Sessions Judge, Faisalabad is set aside. Trial Court is directed to summon Usama Mumtaz Raja, S.P. Saddar, as defence witness.
5. Disposed of.