HABIBULLAH and another vs Insp. RASOOL BUX and another
This criminal revision application challenges the order passed by the Additional Sessions Judge-I, Mirpurkhas, whereby an application filed by the applicant under Section 540 of the Code of Criminal Procedure 1898 for summoning a given witness as a court witness was dismissed. The core legal question was whether the prosecution can be compelled to examine all marginal witnesses or whether the trial court was justified in refusing to summon the given witness after the prosecution gave him up. The Sindh High Court held that it is the prerogative of the prosecution to decide upon the number and order of witnesses to be produced, and cumulative evidence can be avoided if the prosecution is satisfied with producing one marginal witness. The court ruled that the prosecution cannot be forced to examine all witnesses on the calendar, and the impugned order declining the application did not warrant interference in revisional jurisdiction. Consequently, the criminal revision application was dismissed, upholding the discretion of the prosecution regarding witness production.
- Whether the prosecution can be forced to examine all marginal witnesses listed in the calendar of witnesses?
- Does the trial court have the discretion to decline an application for summoning a witness as a court witness under Section 540 of the Code of Criminal Procedure 1898?
- Can the High Court interfere with an order declining to summon a witness in its revisional jurisdiction when the prosecution has given up a marginal witness?
- Section 540, Code of Criminal Procedure 1898
FAHIM AHMED SIDDIQUI, J.---Through the instant criminal revision application the applicant has challenged the impugned order dated 15.11.2018, passed by the learned Additional Sessions Judge-I, Mirpurkhas in. Sessions Case No.88 of 2016 (Re: The State v. Arsalan Arain and others), whereby the application filed by the applicant under Section 540, Cr.P.C. for summoning the witness Muhammad Asif as Court witness was declined.
2. The factual matrix of the case is that complainant Inspector Rasool Bux 'Thaheem lodged FIR on behalf of State being Crime No.27/2006 under Sections 269, 272, 420, 472, 34, P.P.C. The case was tried Ind during trial, the prosecution has given up the marginal witness namely Muhammad Asif as such applicant/accused has filed the instant criminal revision application for recalling of the said witness as Court witness.
3. The contention of the learned counsel for the applicant is that the evidence of the said witness is very important for fair decision of the case. He submits that under the provisions of law fair trial is a right of the applicant as such, it is not proper for prosecution go give up any witness in respect of an offence. In response to a query , learned counsel for the applicant submits that the prosecution has examined another marg inal witness leaving the witness Muhammad Asif without assigning any reasons.
4. Learned Prosecutor opposes the instant application by submitting that the applicant may examine any person after completion of the trial in their defence.
5. I have heard arguments and gone through the relevant record.
6. In the instant case, the prosecution has given up one of the marginal witness which is usually done by the prosecution as to establish any memo., it is not necessary to examine all the margi nal witnesses in a criminal case.
In criminal cases, for establishing a 'memo.', usually cumulative evidence is avoid ed if the prosecution considers satisfaction after producing only one marginal witness. I am of the view that during trial, it is the sweet will of the prosecution to decide about the number and order of the witnesses to be produced before the trial Court and they could not be forced to examine all the witnesses of the calendar of witnesses.
7. I am of the view that the impugned order is proper as such the same does not require any interference by this Court in its revisional jurisdiction, hence, the instant criminal revision application is dismissed. These are the reasons for my short order dated 17.12.2018.
Cited by 1 case
- MUHAMMAD AYAZ Versus State 2022 YLRN 145