MUHAMMAD ANWAR vs ADDITIONAL SESSIONS JUDGE MIAN CHANNU and 7
The present constitutional petition arises from a criminal matter where the petitioner challenged an order of the Additional Sessions Judge setting aside a trial court's order allowing the summoning of prosecution witnesses named in the calendar of witnesses attached to a private complaint. The core legal question was whether witnesses whose cursory statements or statements under Section 161 of the Code of Criminal Procedure 1898 had not been recorded could subsequently be summoned during trial to give evidence. The Lahore High Court held that recording a previous statement under Section 161 or a cursory statement is not a prerequisite under the law for summoning a witness whose name is included in the calendar of witnesses, and that trial courts possess vast powers under Section 244(2) and Section 265-F(2) of the Code of Criminal Procedure 1898 to summon any person acquainted with the facts to ensure a fair trial. The writ petition was accordingly allowed, the revisional order was set aside, and the trial court's order was restored.
- Can witnesses whose cursory statements or Section 161 statements were not recorded be subsequently summoned during a trial?
- Does the Code of Criminal Procedure 1898 require a previous statement as a condition precedent for summoning a witness listed in the calendar of witnesses?
- What is the scope of powers of a trial court under Section 244(2) and Section 265-F(2) of the Code of Criminal Procedure 1898 regarding the summoning of witnesses?
- Section 452, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 244(2), Code of Criminal Procedure 1898
- Section 265-F(2), Code of Criminal Procedure 1898
ORDER
MUHAMMAD QASIM KHAN, J.---Briefly the facts of the case are that regarding an occurrence earlier the present petitioner got registered an FIR No.193/2001 at police station Chab Kalan, but after cancellation of the said FIR, he filed a private complaint under sections 452/148/149, P.P.C. Against the private respondents, wherein, accused were summoned and charge sheeted. During trial the petitioner/complainant filed an application for summoning of the witnesses mentioned in the calendar of witness attached to the private complaint. The said application was allowed by the learned trial court vide order dated 23.12.2009, but on a criminal revision filed by the respondents/accused the said order was upset by the learned Additional Sessions Judge vide order dated 27.03.2010. This order of the rev isional court is under challenge through the instant writ petition.
2. The contention of learned counsel for the petitioner is that the witnesses whose statements under section 161, Cr.P.C. Or for that matter their cursory statements are not recorded, cannot be subsequently summoned during trial for the purposes of recording their evidence, as it will prejudice the rights of the accused side.
3. The learned Law Officer assisted by learned counsel for the respondent/comp lainant opposed this petition by arguing that there is no bar in criminal law to summon a witness at any stage, whose statement is considered necessary by the learned trial court to reach at fair determination of trial.
4. Heard. Record perused.
5. A perusal of the impugned order dated 27.03.2010 passed by learned Additional Sessions Judge, reveals that the same is based on the sole ground that cursory statements of the witnesses sought to be summoned by the petitioner were not recorded, therefore, they could not be summoned, as in the absence of their cursory statements the accused would not have opportunity to confront them. I am afraid the approach of the learned Additional Sessions Judge while allowing the crimin al revision is totally misconceived. Sectio n 244(2), Cr.P.C. Dealing with A trial of cases by Magistrates and section 265-F(2), Cr.P.C. Relating to trials before High Court and Court of Session, when read together , in clear terms provide that the Court shall ascertain from the public prosecutor , or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it. It therefore, is quite clear that vast powers have been given to the trial court with regard to summoning of any person as witness but very slight condition that such person shall be acquainted with the facts and will also be able to give evidence. As shall be seen from the above referred provisions, recording of cursory statement or statement under section 161, Cr.P.C. Is not the requirement of law. The sole purpose of inserting these sections in the Code of Criminal Procedure, 1898 is that fair trial must be ensured.
6. Here in this case, it is not disputed that the names of the witnesses sought to be summoned, were duly incorporated in the calendar of witnesses which had been attached with the private complaint. The ground that accused/respondents would not have opportunity to confront them with their earlie r statements under section 161, Cr.P.C. Or their cursory statements, has no backing of law, as when those witnesses would appear in the witness box the rival party would have ample opportunity to cross-examine them so as to shatter their testimony . As compared to the order of learned revisional court, the learned trial court/Magistra te Section 30, Mianchannu had passed a well reasons order on correct legal approach. Consequently , this writ petition is allowed, the order dated 27.03.2010 passed by learned Additional Sessions Judge is set-aside and the order dated 23.12.2009 passed by the learned trial court is resurrected.