BUSHRA BIBI Versus MUHAMMAD RIAZ

ORDER

HASNAT AHMAD KHAN, J.--- Through this revision petition, validity of the orders, dated 28-6-2007 and 3-3-2007 whereby the learned Additional Sessions Judge, M.B. Din/trial Court dismissed the applications moved by Bushra Qamar (petitioner) and Muhammad Ashraf etc., respectively, for summoning of Ahmad Khan, Inspector/respondent No.2 as Court witnesses, has been called into question.

2. Briefly put, the facts of the case are that the petitioner and five other co-accused, were booked in case F.I.R. No.266, dated 4-5-2005 registered at Police Station Saddar, M.B. Din, in respect of the offences under sections 302/324/148/149, P.P.C. After due investigation a report under section 173, Cr.P.C. was submitted before the learned trial Court. During the trial all the accused, including the petitioner, moved an application, on 24-2-2007, under section 540, Cr.P.C. for summoning Ahmad Khan, Inspector Police (respondent No2 herein) as a Court-witness. The said application was dismissed by the learned trial Court on 3-3-2007. The said order was challenged by Muhammad Ashraf, Altaf and Shehbaz Kanwal (co-accused of the petitioner), before this Court through Criminal Revision No.197 of 2007. However, the petitioners opted to withdraw the said criminal revision, which was accordingly dismissed vide order, dated 22-3-2007. Astonishingly enough, Bushra Bibi (present petitioner), who was also a co-applicant in the earlier application, dated 24-2-2007, referred above, moved another application on 25-5-2007 before the learned trial Court with the same prayer i.e. that Ahmad Khan, Inspector/respondent No.2, be summoned as a court-witness. The only additional ground raised therein was that after the change of the investigation, the said Ahmed Khan Inspector Police/respondent No.2 conducted the investigation, on completion whereof a supplementary challan had been submitted. The said application, however, met with the same fate and was dismissed by the learned trial Court vide order, dated 28-6-2007. Hence this petition.

3. In support of this petition, the learned counsel for the petitioner has contended that the learned trial Court as well as the revisional Court committed gross illegality while refusing the prayer of the petitioner to summon Ahmad Khan, Inspector/Investigating Officer, who was a material witness; that under section 540, Cr.P.C., it was mandatory for the learned trial Court to call the said witness as a Court witness, but it declined the prayer made by the petitioner illegally; that recording of the evidence of the said witnesses is essential for just decision of the case and that the statement of the said witness would have important bearing on the outcome of the case. He has relied upon the cases of Bashir Hussain v. The State and 5 others 2001 PCr.LJ 2031 and Muhammad Sharif v. The State 8 others 2007 PCr.LJ 914.

4. After hearing the learned counsel for the petitioner, I have straightaway noticed that earlier criminal revision (Criminal Revision No.197 of 2007) was filed against the order, dated 3-3-2007 passed by the learned trial Court, however, the same was dismissed as withdrawn by this Court vide order, dated 22-3-2007. At the time of withdrawing the said revision, which was filed by the co-accused of the petitioner, no right was reserved by them to re-agitate the matter. The order, dated 3-3-2007, which was impugned in the previous revision petition, had been passed on the application of the accused including the petitioner, who, however, did not join the co-accused who challenged the said order, before this Court, on that occasion. In this way, the order, dated 3-3-2007, having attained finality, was not open to challenge in the subsequent criminal revision. Further, the second application, dated 25-5-2007, moved by the present petitioner was in fact a continuation of the earlier application, dated 24-2-2007, moved by the present petitioner along with her co-accused, which had been dismissed by the learned trial Court on 3-3-2007. Though section 540, Cr.P.C. vests power upon a trial Court to summon a witness on its own or upon the application of either party, yet the Court is under obligation to see whether the summoning of the said witness is material for the just conclusion/ decision of the case. To elucidate and comprehend the proposition involved in this case the provision of section 540, Cr.P.C. is reproduced as under:---

" Power to summon material witness or examine person present .---Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as witness, or examine any person in attendance, though not summoned as a witnesses, 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."

5. A perusal of section 540, Cr.P.C., would reveal that the same is divided into two parts. The first part is discretionary in nature, whereas, the second part is mandatory. As per the first part of the said section, it is a discretionary power of the Court to summon any person as a witness, suo motu or on an application of any party, whereas, according to the second part, the power, to summon, examine or recall and re-examine any person as a witness is to be exercised with care and caution. The Court cannot use these powers to advance the case of the prosecution or the defence, rather these powers are meant only to advance the cause of justice. Solitary purpose of judicial proceedings in criminal cases is to find out the truth by arriving at a correct conclusion, so that no innocent person should be punished, merely because of certain technical omissions on his part or on the part of the Court. If it appears essential to the Court that the evidence is necessary for the just decision of the case, under second part of section 540, Cr.P.C., it becomes obligatory for the Court to examine such a witness, ignoring the technical and formal objections. The whole stress on the power for examining any person as a Court witness, whether already examined or not, is that his evidence should appear to be essential for the just decision of the case. It can be deduced easily from the provisions of section 540, Cr.P.C. that the exercise of this power is a matter of discretion. There is no cavil with the proposition that the discretion has to be exercised judicially and on sound material, keeping in view, all aspects of the case. The said discretion is not to be exercised to favour one or the other party. The power can be exercised to know about such facts which have not come on record already, due to the failure of either of the parties, or due to the reasons, beyond the control of any of the parties, or on account of something which has come to light during the trial. While exercising the power given under section 540, Cr.P.C. it has to be seen by the Court as to how will the bringing on record of such an evidence help the Court to arrive at just decision.

6. Insofar as the importance of the statement of Ahmed Khan Inspector/respondent No.2 is concerned, suffice to hold that initially the case was not investigated by him. Moreover, in the original report submitted by the police the name of the said witness, i.e., Ahmad Khan, Inspector did not find mention. The record reveals that the investigation was entrusted to Ahmad Khan, Inspector, for re-investigation on 14-1-2006. He, however, did not recommend the matter for submission of any supplementary challan, but after the dismissal of earlier application, on the same subject, by the learned trial Court, the accused succeeded to get the supplementary challan submitted.

7. Now adverting to the application filed by the petitioner the same does not disclose any genuine reason for summoning the said witness as a Court witness. Similarly learned counsel for the petitioner, during his arguments, has failed to advance any valid or cogent reason for summoning said witness as a Court witness. He has failed to substantiate that the recording of statement of the said witness is essential for just decision of the case. The said police officer cannot be summoned as a Court witness just on the ground that in the supplementary challan, which, prima facie, was manoeuvred after two years of occurrence, he was named as a witness in the calendar of witnesses. Besides, the said witness cannot be summoned just to fulfil the desire of the petitioner. The proceedings of the trial, which has almost been completed, have already consumed more than three years.

8. It is an established law that no criminal case can be decided on the basis of the opinion of the Investigating Officer, rather the same has to be decided on the basis of the statements of the material witnesses and the admissible evidence produced by the parties. Further, it was not Ahmed Khan Inspector/respondent who submitted the supplementary challan in the Court rather the same was filed by the local police.

9. Learned counsel for the petitioner has failed to demonstrate, that facts of the case attract the second part of section 540, Cr.P.C. Insofar as the 1st part of section 540, Cr.P.C. is concerned, the learned counsel for the petitioner, however, has failed to convince me that the learned Court committed any illegality while declining to exercise his discretion in favour of the petitioner.

10. Insofar as the case-law cited by the learned counsel for the petitioner is concerned, suffice it to observe that the same is distinguishable from the facts of case in hand, therefore, the same is not helpful for him.

11. For what has been stated above, I have concluded that the learned counsel for the petitioner has failed to point out any illegality or jurisdictional error committed by the learned trial Court while dismissing her (petitioner's) application for the summoning of Ahmed Khan Inspector/respondent No.2 as a Court witness, therefore, I hold that the impugned orders do not call for any interference by this Court in its revisional jurisdiction. Consequently, the petition in hand is dismissed. As the trial of the murder case is pending since the year 2005, therefore, the learned trial Court is directed to conclude the trial expeditiously. The office is directed to transmit a copy of this order to the learned trial Court immediately through learned Sessions Judge, Mandi Bahauddin.

H.B.T./B-20/L Petition dismissed.