ABDULLAH vs THE STATE and another
This criminal revision petition was filed under Article 203-DD of the Constitution of Pakistan 1973, challenging an order of the Additional Sessions Judge, Lahore, which dismissed an application under Section 540 of the Code of Criminal Procedure 1898. The petitioner sought to summon four police officers as court witnesses in a trial involving charges under the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and the Pakistan Penal Code 1860. The core legal question was whether the trial court erred in refusing to summon these police officers as court witnesses for the just decision of the case. The Federal Shariat Court held that while the trial court correctly declined to summon three of the officers due to a lack of evidence regarding their material involvement in the investigation, it erred regarding the investigating officer who had been present but was subsequently given up by the State. The Court affirmed that the trial court has the discretion to summon witnesses essential for a just decision, and thus directed that the investigating officer be summoned as a court witness, while allowing the petitioner to call the others as defense witnesses if desired.
- Can a trial court refuse to summon an investigating officer as a court witness when that officer is material to the just decision of the case?
- Does the trial court have the discretion to summon witnesses under Section 540 of the Code of Criminal Procedure 1898?
- Is a petitioner entitled to summon police officers as court witnesses if they were not involved in the investigation of the case?
- Article 203-DD, Constitution of Pakistan 1973
- Section 540, Code of Criminal Procedure 1898
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 337-J, Pakistan Penal Code 1860
- Section 379, Pakistan Penal Code 1860
AGHA RAFIQ AHMED KHAN, C.J.---This Revision Petition has been filed under Article 203-DD of the Constitution of Islamic Republic of Pakistan 1973, against the order dated 19-10-2009 passed by the learned Additional Sessions Judge, Lahore, respondent No,2, whereby he dismissed application under section 540 of the Code of Criminal Procedure moved by petitioner Abdullah for summoning Sub-Inspector Abdullah Ali Yousaf, DSP Asmatullah Khan Niazi, S.P Waseem Ahmad Khan and Sub- Inspector Akram Bajwa as court witnesses.
2. The brief facts leading to this revision petition are that a case was registered. at Police Station Shafiq Abad, Lahore under sections 10/16 of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979 read with sections 337-J/379 of the Pakistan Penal Code on the basis of report lodged by complainant Mst. Rukhsana against the present petitioner. After completing the investigation the case was challaned and the same is pending for trial before the learned Additional Sessions Judge, Lahore.
3. Learned counsel for the petitioner moved an application under section 540 of the Code of Criminal Procedure for summoning the above named police officers as court witnesses, as according to him, the same were material witnesses. This application was dismissed on merits by the learned trial Judge on 19-10-2009, therefore, the present revision petition has been filed.
4. Mr. M. Amir Latif Sehr Bhutta, Advocate for the petitioner argued that all these witnesses are material for just decision of the case and that Sub-Inspector Abdullah Ali Yousaf of Police Station Shafiq Abad, Lahore, had conducted the investigation and was present in the court when he was given up by the State counsel. According to him, the other police officers were also linked with the investigation, therefore, they should have also be summoned by the trial Court as court witnesses.
He relied on (i) 1988 MLD page 2435 (Lahore) titled Bashir Ahmad v. The State and (ii) 2004 PCr.LJ page 385 (Lahore) titled Muhammad Ashraf v. The State.
5. I have heard Mr. M. Amir Latif Sehr Bhutta, Advocate for petitioner and Rana Muhammad Iqbal, DPP for the State and have also gone through the entire record available before me.
6. As far as Sub-Inspector Abdullah Ali Yousaf is concerned, he had admittedly conducted some investigation and was shown as prosecution witness. He was also present ' the purpose of recording his evidence but he was given up by t State counsel, therefore, in my humble view his evidence is material for the just decision of the case. The trial court should have called him as court witness. As far as the other three witnesses are concerned, there is nothing on record to suggest that they had also conducted any investigation and had recorded the statement of any witnesses, etc., therefore, the trial court had rightly decline the request of the petitioner to call them as court witnesses. The -petitioner may call them as his witnesses in his defence, if so advised, at proper stage.
7. With the above observations, the revision petition is partly allowed to the extent of calling Sub- Inspector Abdullah Ali Yousaf as court witness.