MUHAMMAD IHSAN Versus THE STATE

This revision petition by Muhammad Ihsan who is facing an inquiry for commission of offences under section 302/452, P. P. C., has arisen in the following circumstances:

The accuzed is said to have caused the death of Abdus Sattar by giving him chhurri blows. The F. I. R. was lodged by Umar Daraz Khan. He stated in the F. I. R. that besides himself, Muhammad Asif, Muhammad Iqbal, Muhammad Akram, Rashid and Mansoor Hussain, who ran their shops in the neighbourhood, had seen the occurrence. During the inquiry Muhammad lqbal was given up. ‑'the other P. Ws. who were produced in Court including the first informant, did not support the prosecution story. Abdul Haq, the brother of the deceased was cited as a witness and the con tention of the learned counsel for the petitioner is that his evidence was confined to the identification of the dead body. He appeared before the Magistrate on 21st of September 1974, and gave a statement as if he was an eye‑witness, and inculpated the petitioner. He also named two other persons, namely, Karam Din and Muhammad Ali who, according to him, had seen the occurrence. An undated application for summoning Karam Din Kumbar and Muhammad Ali as court‑witnesses was presented before the Magistrate who passed an order on 28th of September, 1974, that the application be placed on record. The order‑sheet shows that on the same day a copy was banded over to the defence counsel and the case was fixed for arguments for 8th of October 1974. Ultimately, on 1st of January 1975, Mr. Abdul Majid, Magistrate First Class, Lahore, passed orders summoning Karam Din and Muhammad Ali as court‑witnesses.

2, A, revision petition was filed in the Sessions Court. Mr. Jacob Issac, the Additional Sessions judge. Lahore, dismissed the revision petition by saying that there was nothing in the law which disentitled the prosecution for asking the Court to examine a person ns a court‑witness whose name had not been included in the police report.

3. The learned counsel for the petitioner argued‑ that since all the. eye witnesses had gone back on the prosecution story, Abdul Haq not only posed himself as an eye‑witness but introduced two other names who did not find any mention on the record. The learned counsel submitted that the learned Magistrate in summoning the two persons named by Abdul Haq as court‑witnesses bad used his discretion in a perverse and unsustainable manner and his order amounted to a clear abuse of the process of the Court. It was his submission that if this practice was allowed then any disgruntled complainant could name any person at any stage and have the witnesses of his own choice introduced in a murder case at a late stage to prejudice the accused and to fill in the gaps in the prosecution story.

4. The trend of the arguments addressed by the learned Assistant Advocate‑General and the learned counsel for the complainant was that the Court had unlimited powers to summon any person as a court‑witness in the interest of justice and that this discretion should be very rarely interfered with. The learned Assistant Advocate‑General further submitted that there was no bar in law against the Magistrate to summon these two witnesses and that he having the jurisdiction to do so, this revision petition could not succeed.

5. This case was registered on 15th of June 1972, and the order‑sheet shows that apart from the prosecutor there was a counsel assisting the prosecutor. The names of the two witnesses now summoned by the Court were never mentioned either before the police or before the Court at anytime before 21st of September 1974, on which date Abdul Haq made his statement in Court. In his application for summoning Karam Din and Muhammad Ali as court‑witnesses, Abdul Haq stated that the police had wilfully failed to cite these persons as eye‑witnesses. It does not appear from the record that Abdul Haq at any stage of the case was dissatis fied with the police investigation or had asserted that the police had wilfully failed to name two of the eye‑witnesses.

6. The basic question that arises for determination in this case is whether the learned Magistrate has exercised his discretion within the spirit of section 540, Cr. P. C. The superior Courts have laid down certain principles which govern the discretion of the lower Courts in this matter. One fact which has to be kept in view is that the Magistrate is the arbiter and the Judge. He is not a party nor an investigator. He is not expected to fill up the gaps left by party. The overriding consideration for him while exercising, powers under section 540, Cr. P. C. is the interest of justice. Where it has not been shown that a witness could not be summoned by the prosecution under normal procedure, the Magistrate ordinarily will not exercise his discretion in favour of the prosecution. Here, the State had not moved that, the two witnesses be summoned as prosecution witnesses. It does not appear from the impugned order that the prosecution supported the prayer of Abdul Haq. The contention of the learned counsel for the petitioner is that the names of two strangers were introduced to prop up the case of the prosecution and this amounted to gross abuse of the process of the Court.

7. Mr. Sajjad Raza Jaffery, during his arguments referred to Rashid Ahmad v. The State (P L D 1971 S C 708) and Gahna v. The State (1968 P Cr. L J 109) and forcefully argued that the Magistrate had acted on the spirit of these judgments and there was nothing wrong in his making the impugned order. In the first case, the accused who had been charged for commission of offences under sections 409 and 420, P. P. C. bad claimed that the money was received by the com plainants and had relied on certain receipts in this connection. The receipts were shown to the complainants after the close of the prosecution case who denied their execution. The trial Court thereafter abruptly closed the case and delivered judgment. The Supreme Court held that the procedure adopted by the trial Court prejudiced the accused, and the accused should have in the circumstances been further examined under section 342, Cr. P. C. and given an opportunity to rebut the evidence of the complainants regarding non‑execution of receipts.

In the second case it was observed by Muhammad Afzal Cheema, J. that the Court was bound to examine under section 540, Cr. P. C. the witnesses essential to the just decision of the case. The facts in that case Were that the accused before the commencement of proceedings had made an application for summoning two witnesses in support of plea of alibi. One of the witnesses of alibi did not turn up during Court hours and the application of the accused for summoning him as a court‑witness was turned down.

Now in both these cases relied upon by the learned counsel for the com plainant, the persons whose evidence was considered to be necessary had all along been mentioned and there was clear indication that they could throw some light on the facts of the case. The two persons named by Abdul Haq were admittedly never associated with or mentioned during the investigation or the proceedings of the Court till 21st of September 1974. I summon the original records in this case and asked both the learned counsel for the State and the complainant to state as to whether this assumption was correct? They conceded that it was so, but said that the trial Magistrate had vast powers in this matter.

8. Abdul Haq had flung a surprise on the Court and the accused b naming Karam Din and Muhammad Ali as eye‑witnesses. The introduction o these two witnesses who according to the record had nothing to do with the case appears to be clearly a manoeuvre to supplement the prosecution case. The order of the Magistrate summoning them has been passed against. all the guarantees that the Criminal Procedure Code has given for a fair and free investigation. and trial. The trial in a criminal case cannot be left at the mercies of the ingenuity of a person who nay name such persons of his choice as eye‑witnesses who were never relied upon by the prosecution or even named by the complainant himself.

9. The case was registered on 15th of June 1972. The record show that the complainant's counsel was appearing along with the Prosecuting Sub -Inspector. No question was put to any of the prosecution witnesses including the Investigating Officer as to the presence at the spot of the two witnesse now named by the complainant. The introduction of these two names is an afterthought and an attempt to introduce false evidence in the case which course of conduct this Court will never brook.

10. I had an occasion to discuss the provisions of section 540, Cr. P. C in Muhammad Ashraf v. Zafar Mahmood and others (PLD 1067 Lah. 1045) and I repeat in all, humility what I had said in that case :‑

"There is no doubt that the Courts have very wide powers to summon court‑witnesses, under section 540 of the Criminal Procedure Code, but the very extent of these powers, imposes upon them a reciprocal responsibility of the same magnitude to use these powers with care and circumspection. It is only for the purpose of the just decision of a case that a Court can have resort to section 540 of the Criminal Procedure Code for summoning court‑witnesses. The Court cannot use these powers to advance the cause of the prosecution, or that of the defence, and wherever be passes such an order, putting one of the parties in a position of advantage, vis‑a‑vis, the other the High Court will be justified in interfering in the exercise of its revisional jurisdiction to correct the error."

Wherever the law has given a discretion to a Court or a functionary, it has to be exercised in a reasonable manner. It is of no avail to the learned counsel for the State or that of the complainant to tell me that there being extensive powers under section 540, Cr. P. C. their use should not be interfered with. With extensiveness of powers there goes a reciprocal obligation. The impugned order was passed in utter disregard of the spirit of the law. It is, hereby, set aside and the Revision Petition is allowed. The records ‑shall be sent back within a couple of days.

S. A. H. Revision allowed.