Abdul Bari vs Amir Muhammad and 3 others

ROZI KHAN BARRECH, J.---Through the instant revision petition, the petitioner has called in question the validity of the order dated 9.02.2020 (hereinafte r "the impugned Order ") passed by the learned Additional Sessions Judge, Kuchlak, (hereinafter "the trial Court ") whereby the application under section 540, Cr.P.C., filed by the applicant/petitioner was dismissed.

2. Brief facts of the case are that the petitioner filed a complaint before the trial Court under sections 3, 4 and 5 of the Illegal Dispossession Act, 2005 (hereinafter "the Act" ) against respondents Nos. 1 and 2 on account of illegally dispossessing him from his immovable property .

3. During trial, the petitioner also filed an application under section 540, Cr.P.C. for calling the concerned SHO to tender the proposed document as a witness.

4. After hearing arguments of the learned counsel for the parties, the learned trial Court dismissed the application under section 540, Cr .P.C., on 19.02.2020. Hence this petition.

5. I have heard the learned counsel for the parties and have gone through the record with their able assistance.

6. Section 540 of the Cr.P.C. vests the power in a court to summon a material witness or examine a person present. The section provides that this power of the Court may be exercised at 'any stage' of an inquiry , trial or other proceedings under the Criminal Procedure Code. This power may be exercised by summoning any person as a witness, or examining any person in attendance not summoned as a witness, or to recall and re-examine any person already examined. The section can be divided into two parts. The first part vests a discretion while the second part places a mandatory obligation on the court if the pre-requisites are satisfied. If it appears to the court that a person's evidence is essential to the just decision of the case, then there is no discretion to prevent such a person from being examined. The power under section 540 of the Cr.P.C. to summon a witness may either be exercised suo motu or on an application. Reliance in this regard is placed on a case titled as Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474 and Shahbaz Masih v . The State 2007 SCMR 1631 .

7. In the light of the above, it is obvious that the power under section 540 of the Cr.P.C. can either be exercised by the Court suo motu or on an application of one of the parties to the trial at any stage. A person who may not have been examined at the time of investigation, or whose name is not included in the calendar of witnesses or in the Challan, could be summoned under section 540 of the Cr.P.C. The most critical and fundamental considerations for a court while deciding such an application are twofold; firstly , it is to form an opinio n as to whether the person is a material witness and, secondly , that examining such a witness is essential for a just decision of the case. The timing of summoning such a person to be examined as a witness is irrelevant, provided the Court is satisfied that the evidence would be essential to meet the ends of justice and for a just decision of the case. Likewise, it is also not a bar to examine such a material witness if, during the investigations, his/her statement was not recorded under section 161, Cr .P.C., or does not appear in the calendar of witnesses.

8. Similarly , section 265-F , Cr.P.C, is quite comprehensive. This section has been added in the Code notwithstanding the already existing section 540, Cr.P.C. in order to ensure the concept of a fair trial and in order to achieve this purpose, equal opportunity has been provided to both, the accused as well as the prosecution for summoning the evidence. Subsection (7) of section 265-F , Cr.P.C. grants even a right to accused to apply for summoning any witness and production of documents; therefore, balance has to be struck between the parties.

Section 265-F , Cr.P.C. caters for such situation where the Court may ascertain from complainant the name of any person likely to be acquainted with the facts of the case and to be able to give evidence for prosecution. This section does not provide specifically that only those witnesses can be examined whose statements have been recorded under section 161, Cr.P.C. or their names have been mentioned in the chalIan in column of witnesses.

The intent of the legislature is very much clear from the language of the entire section that the Court can examine any person who is acquainted with the facts of the case, therefore, the Court is not bound to record the statements of only those witnesses who are listed in the calendar of witnesses only, but in order to arrive at a just conclusion, the Court can call any person likely to be acquainted with the facts of the case after ascertaining it from the public prosecutor or the complainant subject to the general provisions that summoning of any such witness does not cause delay or defeat the ends of justice. It would be the second option of the Court as to what extent it considers or relies on the statement of such witness.

9. In the instant case the parties are in dispute over the property , which they claim to be the owners of, on account of petitioners alleged dispossession from the same. The petitioner filed a complaint under sections 3, 4 and 5 of the Act against the private respondents for his alleged dispossession. No doubt, the document which the petitioner wanted to place on record i.e. report of SHO PS Kuchlak dated 16.12.2019 was not filed at the time of filing the complaint, but perusal of the same prima-facie reveals that allegedly the accused/respondents tried to encroach the unsettled property and the petitioner intended to establish the conduct of the private respondents as land grabbers through the said document.

10. In my humble view, the trial Court while dismissing the application filed by the petitioner misinterpreted the provisions of section 540, Cr.P.C. and failed to take relevant factors into consideration. The factors weighed by the trial Court are not germane for the purpo ses of exercising powers and jurisdiction under section 540, Cr.P.C. The learned trial Court dismissed the application under section 540, Cr.P.C. mainly on the ground that "placing of such report on the record would not help for just and proper decision of the case, rather it will delay the case regarding which the Hon'ble High Court of Balochistan has already given directions in Criminal Revision No.106 of 2019 that the case be disposed of within short possible time".

11. It is obvious that the learned trial Court did not make an effort to satisfy itself or to consider the two essential ingredients; firstly , whether the person proposed was a material witness and, seco ndly, whether he was essential for a just decision of the case. The learned Court was required to take the entire material and the circumstances of the case into consideration, so as to form an opinion whether summoning of the proposed witness was essential for a just decision of the case. The trial Court, while passing the impugned order , did not consider the principles and law laid down for deciding applications under section 540, Cr.P.C. and thereby failed to exercise jurisdiction vested in it, besides the illegality and material irregularity as highlighted above. The grounds for dismissing the application under section 540, Cr.P.C. are neither tenable in law nor in consonance with the principles enunciated in this regard, particularly by the august Supreme Court.

For what has been discussed above, the instant petition is allowed and the impugned order dated 19.02.2020 passed by learned Additional Sessions Judge, Kuchlak is set aside and the learned trial Court is hereby directed to call the proposed witness to place the said document on record according to law .

The petition is allowed.