MUHAMMAD AYUB vs ADDITIONAL SESSIONS JUDGE, HAFIZABAD and 5 others
This criminal revision petition challenges an order passed by the Additional Sessions Judge, Hafizabad, whereby an application filed by a respondent under Section 540 of the Code of Criminal Procedure 1898 for summoning certain witnesses was allowed. The core legal question was whether the trial court properly exercised its jurisdiction in summoning given-up witnesses on an application not forwarded by the public prosecutor and based on misread record. The Lahore High Court held that the trial court passed the impugned order without properly reading the record and upon an application not filed by a competent person, as prosecutions in trials before a Court of Session must be conducted by the Public Prosecutor under Sections 265-A and 493 of the Code of Criminal Procedure 1898. The revision petition was accepted, setting aside the impugned order with directions that any fresh application under Section 540 be decided strictly on merits by a proper person.
- Whether a trial court can summon witnesses under Section 540 of the Code of Criminal Procedure 1898 on an application not filed or conducted by the Public Prosecutor?
- Can an order passed by misreading the judicial record regarding given-up witnesses be sustained?
- Must the prosecution in a trial before a Court of Session initiated upon a police report be conducted by a Public Prosecutor?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 265-K, Code of Criminal Procedure 1898
- Section 540, Code of Criminal Procedure 1898
- Section 265-A, Code of Criminal Procedure 1898
- Section 493, Code of Criminal Procedure 1898
SH. NAJAM-UL-HASAN, J.--- Through this petition the petitioner has challenged the order dated 29-1-2011 passed by a learned Additional Sessions Judge, Hafizabad whereby the application of respondent No,2 for calling certain witnesses as P.Ws. was allowed.
2. Learned counsel for the petitioner states that during the pendency of trial in case F.I.R. No,134 of 1999 dated 15-4-1999 for the offence under sections 302/34, P.P.C. registered at Police Station Shakeeke, petitioner along, with his four co-accused filed application under section 265-K, Cr.P.C. which was allowed by the learned Additional Sessions Judge, Hafizabad vide judgment dated 21-7- 2001 and the petitioner and others were acquitted from the charges; that the said judgment of acquittal was assailed by Shehzad Hussain complainant through Criminal Appeal No,1399 of 2001 which was decided by the honourable Division Bench of this Court vide judgment dated 23-12-2010 whereby the case was remanded back to the trial Court to proceed from the next witness who are yet, to be examined including the Investigating Officer subsequently respondent No,2 (Shehzad Hussain) filed application under section 540, Cr.P.C. in which such witnesses were also requested to be summoned who were given up by the prosecution and the trial Court summoned them as well but the trial Court was not entitled to summon them as P.Ws. at this stage; that the learned Additional Sessions Judge in his order in paragraph 5 observed that "it is observed from the statement dated 9-7-2001 got recorded by Zulfiqar Ismail learned ADA for State which he made on the basis of application submitted by complainant and duly, endorsed by learned counsel for complainant that Liaquat Ali witness mentioned in the application has not been given up.
Therefore, there is no legal hitch in accepting the application to his extent". Learned counsel contends that this observation of the court is contrary to the record.
3. I have gone through the orders of the, trial Court dated 9-7-2001 and 21-7-2001 which speak just contrary to the observation made by the trial Court in his order dated 29-1-2011. In these circumstances, it appears that the learned trial court has not even read the record properly while passing the impugned order. Even otherwise it has been observed that the application filed under section 540, Cr.P.C. was, not duly forwarded by the prosecutor, whereas section 265 -A, Cr.P.C., requires that:-- "In every trial before a Court of Session, initiated upon 'a police report, the prosecution shall be conducted by the Public Prosecutor".
Section 493, Cr.P.C., also says that public prosecutor may plead in all Courts in cases under his charge and the pleaders privately instructed to be under his direction. This section reads as under:--.
"The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under. inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct prosecution, and the pleader so instructed shall act herein, under his directions."
So in these circumstances, the application upon which the impugned order was passed has not been filed by a proper person.
4. For the reasons given hereinabove, the instant revision petition is accepted and the impugned order is set aside with the observation that it any application under section 540, Cr.P.C., for summoning the witnesses is filed by a proper person the same shalt be decided by the trial Court strictly on merits keeping in view the whole record.