MOHSIN UR REHMAN vs THE STATE And Other
This matter arises from a petition for leave to appeal against the judgment of the Lahore High Court, which dismissed a criminal revision petition filed by the petitioner facing trial in a murder case. The petitioner sought to summon two given-up prosecution witnesses as court witnesses under section 540 of the Code of Criminal Procedure 1898 at the argument stage, which the trial court and the High Court had declined due to delay and late stage. The core legal question was whether the trial court was bound under the second part of section 540 of the Code of Criminal Procedure 1898 to summon given-up witnesses as court witnesses without a foundational showing that their evidence was essential for the just decision of the case. The Supreme Court held that in order to invoke the mandatory second part of section 540, there must be a factual basis and a finding that the evidence is essential for the just decision of the case, which was absent in this case. The petition was accordingly dismissed, with the Court clarifying that the petitioner could still summon the witnesses in his defense.
- Whether the trial court is bound to summon given-up prosecution witnesses as court witnesses under the second part of section 540 of the Code of Criminal Procedure 1898 without a showing that their evidence is essential for the just decision of the case?
- Can a plea that evidence is essential for the just decision of the case be entertained for the first time in the Supreme Court when it was not raised before the High Court?
- Whether an accused person examining a witness in their defense is precluded from seeking permission to cross-examine such witness if a genuine need arises?
- Section 540, Code of Criminal Procedure 1898
ORDER
1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment, dated 25-6-1986 of the Lahore High Court; whereby a Criminal Revision arising out of the refusal of a learned trial Court to summon some given up prosecution witnesses as Court witnesses, was dismissed.
2. The petitioner is facing trial in a murder case. It had reached the argument stage when two given up eye-witnesses out of 5 were sought to be summoned by the petitioner as Court-witnesses. The request was declined on various grounds including that of late stage and delay. A learned Single Judge in the High Court also dismissed the revision petition filed by the petitioner on similar grounds. He has now sought leave to appeal.
3. The learned counsel for the petitioner has relying on Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 contended that the evidence of the two given up witnesses was essential for the just decision of the case, therefore, the question of their summoning as Court-witnesses fell within Second Part of section 540 of the Criminal Procedure Code, thus the learned trial Court had no discretion but to summon them under the said second part.
4. The argument is attractive, but, in order to accept the same there should be factual basis for assuming that the evidence of the two witnesses concerned was essential for the just decision of the case. No such plea was raised before the High Court, therefore, there is no such finding in the impugned judgment. That being so, we cannot entertain the plea at this stage. .
5. After some arguments when pointed out that the High Court has left a scope for the petitioner to summon the two given up witnesses in his defence even now the learned counsel for the petitioner gave only one explanation for not making an' application in pursuance of the observations of the High Court; namely, that in case of need the petitioner shall not be able to cross-examine the defence witnesses. The apprehension is unfounded. If they are summoned as defence witnesses and a genuine need arises for cross-examining them there is no reason why a request made to the Court in that behalf would not be decided on its own merits.
6. With these observations, this petition is dismissed.
Cited by 2 cases
- MUHAMMAD SARWAR vs STATE and another 2009 PLJ FSC 200
- MEHRZAD KHAN vs THE STATE 1991 PLD Supreme Court 430