MUHAMMAD USMAN GHANI and 2 others vs SHABANA NOREEN and 2 others
This criminal revision petition challenges the order dated 6-12-2007 passed by the Sessions Judge, Khushab, whereby an application filed by the petitioner under Section 540 of the Code of Criminal Procedure 1898 for summoning additional witnesses was dismissed. The core legal question was whether the trial court erred in declining the request to summon additional witnesses at a belated stage when the petitioner had already closed his evidence and the matter was fixed for final arguments. The Lahore High Court held that the impugned order was unexceptionable and dismissed the petition. The court laid down the principle that the power to summon material witnesses under Section 540 of the Code of Criminal Procedure 1898 is the prerogative of the court to be exercised for the just decision of the case, and it does not constitute an enforceable right bestowed upon the parties.
- Whether the summoning of witnesses under Section 540 of the Code of Criminal Procedure 1898 is a right of the parties or a prerogative of the court?
- Can an application to summon additional witnesses be filed after closing evidence and when the case is fixed for final arguments?
- Section 540, Code of Criminal Procedure 1898
ORDER
' SYED ASGHAR HAIDER, J.--- Through this criminal revision the petitioner has challenged the order, dated 6-12-2007 passed by the Sessions Judge, Khushab wherein an application under section 540, Cr.P.C. Filed by the petitioner for summoning (1) Mehr Sarfraz Hussain, Magistrate, (2) Malik Zafar Tawana, Reader (3) Malik Muhammad Hayat, Advocate (4) Mian Muhammad Riaz, Nikah Khawan and (6) Record Keeper Office of D.C.O. District Khushab, was declined.
2. The learned counsel for the petitioner contended that the witnesses stated (supra) are essential for fair adjudication of the matter as their non-appearance would cause irreparable loss and prejudice to the cause of the petitioner and in fact foreclose the fate of the proceedings. He further submitted that to foster ends of justice and obviate any chances of procedural illegality the summoning of the stated witnesses is essential and it shall also not cause prejudice to the prosecution. The learned Deputy Prosecutor-General an counsel for the complainant vigorously opposed the contention of the learned counsel for the petitioner and submitted that Muhammad Usman petitioner himself made a statement before the Sessions Judge, Khushab on 9-10-2007 and closed his evidence, he never adverted to these witnesses nor were they deemed essential, otherwise there was no impediment in the petitioner's way to call them as witnesses. The present application is nothing but to ploy to prolong and protract the proceedings, which are on the verge of being finalized as the matter is fixed for final arguments.
3. Heard.
4. Section 540 of the Code of Criminal Procedure, 1908 bestows power upon the Court to summon material witnesses if it deems necessary and essential for the just decision of the case. The impugned order reflects that the learned Sessions Judge felt no need in this context. In fact while addressing this point the learned Sessions Judge held otherwise. Further petitioner was granted opportunity to produce any witness, he deemed essential, the same opportunity was not availed, therefore, the instant application at this belated stage is not maintainable. Lastly under section 540, Cr.P.C. It is the prerogative of the Court to summon witnesses or not and not a right bestowed upon the parties. In these circumstances the impugned order is unexceptionable. Resultantly this petition has no merits and is dismissed.