MUHAMMAD ASLAM Versus STATE

Muhammad Aslam petitioner who is an accused in a case registered vide F.I.R. No. 13, dated the 10th of January, 1996, at Police Station Saddar Bhakkar, District Bhakkar and regarding which the trial is now pending in the Court of Mr. Irshad Ullah Khan Sial, Additional Sessions Judge‑II of Bhakkar wherein 20 prosecution witnesses have been examined and the case of the prosecution has been closed on the 26th of March, 1998 by the prosecutor, has brought this revision petition under section 435 read with section 439 of the Code of Criminal Procedure, against the order of the learned Additional Sessions Judge‑II, Bhakkar, dated the 3rd of April, 1998 whereby his application, dated the 1st of April, 1998 was dismissed.

2. The petitioner's application, dated the 1st of April, 1998 prayed inter alia that (i) the report of the Fire‑arms Expert regarding a gun and two empties recovered from the place of occurrence, and (ii) the medico‑legal report of the petitioner given by the Doctor who examined him, be placed on record which the learned prosecutor had not done. It was further prayed that the doctor who examined the petitioner be produced in Court and his evidence be recorded.

3. Learned counsel for the petitioner submitted that there was a deliberate effort by the learned prosecutor to withhold evidence because the report of the Fire‑arms Expert was in negative and argued that it was incumbent upon the prosecutor to do so. Learned counsel placed reliance upon the following two cases:‑‑

(1) Haji Ghulam Hussain alias Sharbat Khan v. The State PLD 1976 Kar. 1160 and

(2) Abdul Rashid v. The State 1980 PCr.LJ 1119.

4. Learned counsel appearing on behalf of complainant Muhammad Ramzan brother of Sadiq Hussain deceased submitted that the advantage/benefit of the prosecutor having not produced the report/opinion of the Fire‑arms Expert will go to the accused/petitioner and, therefore, he cannot make a grievance out of it. Secondly it was submitted that non‑production of the medico‑legal report qua the petitioner and the doctor who allegedly examined him does not debar the petitioner from producing the same in defence, if so advised. Learned counsel places reliance upon the case of Muhammad Ahmad and another v. The State and others reported in 1997 SCMR page 89.

5.Section 540 of the Code of Criminal Procedure of 1898 provides that:‑‑

"Any Court may, at any stage of any inquiry, trial or other proceeding 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 recall and re‑examine any such person if his evidence appears to it essential to the just decision of the case."

6. There is a dichotomy in section 540, Cr.P.C. the first portion gives a discretion to every Court which may or may not be exercised dependent upon the discretion of the Court, to summon any person as a witness or examine any person present in Court although he may not have been summoned as a witness or recall and re‑examine any person although he has already been examined as a witness. Wherever there is a discretion, it may or it may not be exercised subject to the fundamental rule that it shall be exercised judiciously and not arbitrarily.

7. However, in the second portion of section 540, Cr.P.C. there is no discretion provided that the Court comes to the conclusion that it is essential to the just decision of the case to summon and examine some not examined earlier or re‑examine some on though examined earlier.

8. As the first portion of section 540, Cr.P.C. is concerned, it is subject to the principle that a Court is not to fill up the gaps left by either the prosecution or the defence as laid down by this Court in the case of Muhammad Ehsan v. The State PLD 1975 Lah. 1431.

9. But, once it appears to a Court that it is essential to the just decision of the case that any particular person is to be summoned and examined or any person who has already been examined should be recalled and re‑examined then it becomes mandatory for the said Court to do so as laid down by the Supreme Court in the case of Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95.

10. The conclusion as to whether or not it is essential to the just decision of the case has to be reached with due care and caution by the Court concerned. While on the one hand it must avoid the filling of gaps left by either party, on the other hand it must strive to reach a just decision of the case. It is a balancing act which a Court of law has to perform in the interest of justice and equity.

11. Article 129 of the Qanune‑e‑Shahadat Order, 1984, lays down that:‑‑

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations

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(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;"

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(i)

12. It is settled law that the prosecution can call its witnesses in any order and this is the view of this Court since 1945 expressed in the case of Heman Ram alias Hem Raj v. Emperor reported in AIR 1945 Lah. 201. It is also settled C that the prosecution has the right to chose its witnesses and it is not required to examine every witness. This was the view express by their Lordships of the Supreme Court in the following cases:‑‑

(1) Zar Bahadar v. The State 1978 SCMR 136 and

(2) Muhammad Ahmad and another v. The State 1997 SCMR 89.

13. There is no merit in this petition which is dismissed.

Q.M.H./M.A.K./M‑768/L Petition dismissed.