MUHAMMAD ASLAM Versus STATE

The short point involved in this case is as to whether when the prosecution has not summoned a prosecution witness and the accused makes a request to the Court to summon the same witness as a court-witness, the Court is justified to refuse the application when both the parties will have the right to cross-examine the witness, if he is called as a court-witness?

2. The petitioner is an accused alongwith two others in case F.I.R No. 62 of 1996, dated 30-3-1996 under section 302/324/34, P.P.C, registered at Police Station Galeywall, District Lodhran. Allah Wasaya son of Ladha is an injured eye-witness of the occurrence who was given up by the prosecution. The trial commenced and the case reached at the stage of recording of statement of the accused under section 342, Cr.P.C. when an application under section 540, Cr. P.C. was moved by the accused-petitioner for summoning Allah W asaya (given up P.W.) as a Court-witness. The application was dismissed by the learned Sessions Judge, Lodhran vide the impugned order dated 30-4-1998 in the following words:--

"Through, the application in hand Muhammad Aslam accused has sought the summoning of Allah Wasaya P W. who was given up by the prosecution about eleven months back i.e. on 26-5-1997. The case has no reached at the stage of recording the statements of the accused under section 342, Cr.P.C. Since the prosecution has already examined material witnesses in this case, therefore, I do not deem it necessary to summon Allah Wasaya (given up P.W.) as a Court-witness. However, the accused can very well produce him as a defence witness, if so advised. "

3. Learned counsel for the petitioner has contended that the learned trial Court has passed the order without giving any cogent and legal reasons and that Allah Wasaya is very important witness of the case inasmuch as that the whole occurrence was witnessed by him and all the more he was an inured witness and that giving him up by the prosecution depicts the mala fide of the prosecution so that true facts may not come on the record and that the trial Court has the jurisdiction to even suo motu to summon such an important witness in the, interest of justice.

4. Learned counsel for the State has opposed the revision petition on the ground that the application for summoning Allah Wasaya as a Court-witness has been moved after 11 months.

5. I have given due consideration to the valuable arguments on both the sides.

6. The relevant provision of law contained in section 540, Cr.P.C. reads as under:--

"540. Power to summon material witness or examine person present. - Any Court may at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case."

7. The controversy involved in this petition earlier came up for consideration before the High Court in the case of Mahboob Khan v. The State (PLD 1979 Lahore 691) wherein during the trial, the prosecution gave up two eye-witnesses as having been won over and the request of the petitioner to summon the given up P.Ws. as Court-witnesses was declined by trial Court with the observation that the defence would be at liberty to produce them as defence witnesses and the learned Judge after taking into consideration AIR 1933 Sindh 49, AIR 1936 Privy Council 289, AIR 1938 Madras 900, PLD 1960 Lahore 48, PLD 1962 Peshawer 91 and PLD 1970 Peshawer 24 observed as under: --

"There can be no cavil with the proposition that every person cited by the prosecution as a witness is not necessarily a material witness and that his evidence is not invariably essential for a just decision of the case. It is also true that the Court cannot and ought not compel a party to produce a witness, who in the opinion of that party, is not likely to support its case. At the same time however, the role of the Court is not limited to the examination of only such witnesses that a party chooses to produce for it will be indicative of an unavoidable implication that only such evidence can be received at the trial which goes in favour of the party leading it. Administration of justice is the ultimate responsibility of the Court and it has to deliver the same in an even-handed manner. Examination as a Court-witness of a person cited as an eye-witness by the prosecution and abandoned by it often affords fair and equitable chance to both the parties to cross-examine the witness after he has been examined-in-chief by the Court and no side is prejudiced in such a situation. However, if a witness for the prosecution is summoned in defence and he chooses to support for the prosecution the defence is certainly prejudiced whether it is allowed to cross-examine him or such cross-examination is declined. The Court will normally consider the question of permitting the party to cross-examine a witness produced by itself in the light of his departure from his previous statement, if any available on record. If a witness, who is essentially a witness for the prosecution though led in defence, chooses to support the prosecution, there is every likelihood that the Court may not permit such a witness to be cross-examined, for the circumstances may not warrant it. In such an eventuality, the defence will certainly be prejudiced, whereas there is no such chance of prejudice to any party in case such a person is examined as a Court-witness. Therefore, in my opinion declining the request to examine such a person as a Court-witness, who is cited by the prosecution itself as an eye-witness, has the resemblance of inclination towards the prosecution which would be contrary to the maxim ' justitia non novit partem mex matrem'. Solam veritatem spectat justitia (1 Blus. 199) justice knows neither father not mother, but regards truth alone).

It may sometime so happen that a witness given up by the prosecution and examined by the Court may be found to be the most reliable witness and his deposition may contain a most accurate narration of the actual happening, though it may not necessarily toe the line of the prosecution. A Division Bench of the Lahore High Court of West Pakistan in Ghulam Rasul's case cited above, has gone to the extent of taking the view that it was the duty of the Court to call and examine the eye-witnesses mentioned in the F.I.R. whether they support the prosecution or not. I am in respectful agreement with this view and would venture to say that the duty cast on the Court is still more onerous and the interest of justice demands that the Court should examine such a witness as a Court-witness if so requested by the defence. In such a case, it should not insist upon the defence examining such a witness as a defence witness."

In the case of Jaffar v. The State (1997 PCr.LJ 871 the observations made in Mahboob Khan's case, cited above, were relied upon by the learned Singe Judge of the Lahore High Court and by accepting the revision petition, the application filed by the accused-petitioner under section 540, Cr.P.C. was accepted and the trial Court was directed to examine the P. Ws. as Court-witnesses already given up by the prosecution as having been won over.

8. In the case in ,hand, Allah Wasaya was, admittedly, injured in the incident as is evident from the contents of the F.I.R. which was lodged by the complainant on the same day without any loss of time. So, the facts of this case F are identical to the precedents referred to above. The evidence of Aliah Wasaya appears essential to the just decision of the case. The ground of rejection given by the learned Sessions Judge that the case has reached the stage of recording of statements of the accused under section 342, Cr.P.C. and the material witnesses having been examined by the prosecution is not a valid ground. No doubt, the Court is not to play the role of prosecution or defence but a sacred duty is cast upon it to arrive at truth while dispensing criminal justice and should not leave his functions to float in the hands of the prosecution or defence.

For the above reasons, the revision petition is allowed and the impugned order of the learned Sessions Judge dated 30-4-1998 is set aside and the application under section 540, Cr.P.C. is allowed and the learned trial Court is directed to summon and examine Allah Wasaya son of Ludha as a Court -witness under section 540, Cr.P.C.

N.H.Q./M-710/L Revision petition allowed.