ILAM DIN Versus STATE

ORDER

The facts leading to the filing of this Criminal Revision Petition are that the petitioners Ilam Din, Muhammad Aslam and Bashir Ahmad are facing trial before the Sessions Judge, Kasur, for an offence under section 302/324, Qisas and Diyat Ordinance read with section 34, P.P.C. The case was got registered by one Jhal Singh with Police Station Mustafabad, District Kasur for the murder of his son. In the F.I.R. it was asserted that the petitioners while armed with different fire-arms committed the murder of his son and injured in the same transaction some of the witnesses, including one Safdar Ali son of Buland Ali who was got examined the same day from a doctor who found fire arm injuries on his person. Thereafter the police omitted the name, of said Safdar Ali from the list of the witnesses. The petitioners moved an application for summoning said Safdar Ali as Court-witness as he was present at the spot and was injured as well. The trial Court vide its order, dated 12-7-1994 dismissed the application and observed that the petitioners can produce him as a defence witness if they so choose. In the present petition the order refusing to summon Safdar Ali as Court-witness has been impugned.

2. It was contended by learned counsel for the petitioner that for all intents and purposes Safdar Ali was a prosecution witness because he was named in the F.I.R. as being present at the spot; as a result of firing he was injured and was examined the same day. The doctor who had examined him appeared as a P.W. and confirmed having examined him. Argued that in these circumstances, he was a material witness and the prosecution on account of ulterior motives had not mentioned him because he was not prepared to support a false and concocted story. The contentions were opposed by learned counsel for the complainant. Learned Assistant Advocate-General however, supported the proposition by submitting that he could be summoned as a Court-witness and both the sides could cross-examine him.

3. I have heard the learned counsel and gone through the record. There is no dispute that Safdar Ali was mentioned in the F.I.R. as being present at A the spot and having received a fire-arm injury during the occurrence. In such circumstances, he is a material witness who could throw light about the actual occurrence as \well as how it originated. The learned trial Court has erred in law by holding that he could be produced as a defence witness because for all intents and purposes he is a prosecution witness. In these circumstances, the order impugned is set aside. The petition is accepted and the learned trial A Court shall, summon Safdar Ali as a court-witness. Both the sides shall conclude their cross-examination on the same day so that no delay is occasioned.

N.H.Q./1-120/L Revision petition accepted.