MUHAMMAD ASHRAF vs THE STATE and 4 others

ORDER

' FAZAL-E-MIRAN CHAUHAN, J.--- By filing this revision petition, the petitioner has challenged the order, dated 22-7-2006, passed by learned Additional Sessions Judge, Gujrat, whereby Malik Arshad Mehmood D.S.P. (Investigation) and Rana Shahid Ahmed Khan S.P. (Investigation), Gujrat have been summoned as Court-witnesses in case F.I.R. No,527, dated 22-8-2005, under sections 302, 148, 149, P.P.C. Registered at Police Station, Kunjah, District Gujrat.

2. Briefly facts of the case are that; Azhar Mehmood was murdered on 22-8-2005 by respondents Nos.2 to 5, on which, the petitioner got registered a case vide F.I.R. No,527 of 2005 at Police Station Kunjah, offences under sections 302, 148, 149, P.P.C. Co-accused Nasrullah is still proclaimed offender. During the course of trial, prosecution produced ten witnesses and the learned A.D.A.

Closed the prosecution evidence while tendering reports of Chemical Examiner and Serologist.

Thereafter, respondents. Nos.2 to 5 filed an application for summoning of Malik Arshad Mehmood D.S.P. (Investigation), and Rana Shahid Ahmed Khan, S.P. (Investigation), Gujrat as Court-witnesses, which was accepted by the learned Additional Sessions Judge, vide impugned order, dated 22-7- 2006, hence this petition.

3. Learned counsel for the petitioner states that; the impugned order is against law and facts and has been passed in an arbitrary and capricious manner, which resulted into a grave miscarriage of justice. Under section 540, Cr.P.C. No doubt that, at any stage of trial, after closing of evidence, the Court has power to summon any person and examine him as witness, but in the instant case, evidence of both the Police Officers is not essential for just decision of the case; they were the Investigating officers, having no personal knowledge about the facts and have no evidence in their possession, which otherwise could not have been brought on record. Further states that after registration of criminal case against respondents Nos.2 to 5, they have never been arrested by the police in spite of the fact that they are nominated accused in the F.I.R. With specific role of committing the murder. Of deceased. Reliance have been placed on, Haji Muhammad Abdullah v: The State 1995 SCM R 821, Farman Ali and 2 others v. The State 1992 SCM R 2055 and Khadim Hussain v. The State 2000 YLR 1562 (Lahore).

4. Conversely, learned counsel for respondents Nos.2 to 5 has opposed this revision petition and supported the impugned order. He has also placed reliance on Bashir Ahmad v. The State 1988 MLD 2435 (Lahore) and Muhammad Ashraf v. The State 2004 PCr.LJ 405.

5. Learned counsel for the State has half heartedly opposed this revision petition.

6. I have heard learned counsel for the parties and perused the record. Admittedly, the said two witnesses namely Malik Arshad Mehmood D.S.P. (Investigation), and Rana Shahid Ahmed. Khan, S.P.

(Investigation), Gujrat were associated with the investigation of the case. A They were not produced by the prosecution. The accused had every right to produce evidence in defence or can file application to summon any person as Court-witness under section 540, Cr.P.C. The authority viz. Haji Muhammad Abdullah v. The State 1995 SCM R 821 does not apply to the facts of the case. In that case, Court refused to summon the Police Officers as Court-witnesses, whereas, in the instant case, the other two Police Officers, who remained in' association with investigation of the case were not produced 'by the prosecution as Court-witnesses. As per investigation conducted by both the Police Officers, the accused were found to be innocent.

7. There can be no cavil with the proposition that under the law, a Court is empowered to summon any person as a witness or examine any person in attendance though not summoned as a witness or recall and reexamine any person if his evidence appears to be essential to the just decision of the case.

8. Section 540, Cr.P.C. Is the provision of law, which enjoins upon a Court holding trial to summon any person as a witness or examine any person in attendance or recall for just decision of the case.

Under this section the Court has to exercise such powers in the interest of justice, which is necessary for just decision of the case. No prejudice could be caused to any party, who would have fair chance to cross-examine the witness. If this principle of recalling of a witness can be applied vis-a-vis case of the prosecution, right of summoning/recalling of any witness or make any application to summon any person as Court-witness, in defence, cannot be taken away. Provision of this section gives unlimited powers to Court to summon any person whose evidence is essential for just decision of the case, even including the person, intended to be produced as a defence witness. In this respect, reliance can be placed on Muhammad Hussain and 4 others v. The State and another 1991 PCr.LJ 1081.

9. The main purpose of the entire judicial proceedings is to find out truth, arrive at a correct decision and to see that no innocent person is punished merely because of certain technical omissions on his part or on the part of his counsel. The right of defence cannot be denied and further examination of the witness is held to be proper. Reliance is placed on Riaz v. The State 1992 PCr.LJ 911.

10. It is a fundamental principle of administration of criminal justice that the accused should be afforded reasonable opportunity of rebutting the evidence, which goes against him particularly, where the Court, itself brings such evidence on record after closing of prosecution evidence. Denial of such opportunity cannot but would result in prejudice to the case of accused, who has been declared innocent by two Investigating officers. Reliance placed on Bashir Ahmad v. The State 1988 MLD 2435.

11. In this view of the matter, this revision petition is dismissed, being meritless.