MUHAMMAD USMAN and 2 others vs THE STATE

1. ' The applicants Muhammad Usman, Ali Murad and Allandino are facing trial under section 302, 147, 148, 149, 452, P.P.C. For the murder of one Allandino before the Sessions Judge, Tharparkar at Mirpurkhas in Sessions Case No,96 of 1989. They have been sent up by the police to stand trial on investigation of Crime No,18/1989 regiaered at Police Station Shadi Pali, District Tharparkar on the complaint of one Abdul Mutlib.

2. ' During the trial of the case the complainant and his eye-witnesses turned hostile and the Public Prosecutor sought permission to cross-examine them.

3. ' The District Public Prosecutor incharge of the case filed an application under section 540, Criminal Procedure Code requesting to summon Allah Julio (son), Mst. Rasheeda (widow) and one unnamed daughter of the deceased. The application filed by the Public Prosecutor is reproduced below: "Application under section 540 Cr.P.C.

4. ' It is prayed that this Honourale Court may be pleased to summon Allah Julio son of Allah Dino (deceased) and Mst. Rashida wife of Allandino Junejo (deceased) and the daughter of deceased whose name I will submit later on r/o Village Syed Ali Ghulam Shah Taluka Samaro on the consideration of the following grounds:-

(1) That both are son and wife of the deceased.

(2) That both were in the same house in which deceased Allandino was murdered.

(3) That both are r atural witnesses.

(4) That both are very material witnesses for the prosecution.

(5) That the prayer is made in the interest of justice. Sd/ DPP"

5. 10-3-1990 ' The Sessions Judge after hearing parties passed an order on 10th March, 1990 summoning the aforementioned three persons as Court witnesses. Being aggrieved by this order the applicants have filed this application under section 435/439, Criminal Procedure Code.

6. ' Mr. A.Q. Halepota, Advocate for the applicants has mainly contended that the trial Judge could not exercise his power under section 540, Criminal Procedure Code to summon witnesses who were neither named in the F.I.R. Nor mentioned in the challan to fill the gaps of the prosecution particularly when the complainant and witnesses mentioned in the F.I.R. And challan gave a complete go-bye to the case of the prosecution. None of the witnesses examined in the case have shown their presence at the time of the incident. Under the circumstances the Sessions Judge was not under any obligation to summon them under the second part of section 540, Criminal Procedure Code. He has referred to the decision reported in PLD 1984 SC (Shariat Bench) 95.

7. ' None has appeared for the State.

8. ' The prosecutic n witness Azizullah was also examined and in reply to questions put to him by the Court he stated as under:-- "Allandino was residing alongwith his wife, three sons and two daughters. The age of his elder on would be about 12-13 years. The age of his elder daughter who was residing with him at such time would be about 25 years. The widow of the deceased and her said son and daughter did not disclose the circumstances which led to the cause death of deceased Allandino nor did we enquire from them as to who had caused him death and under what circumstances and for what reasons."

9. ' It appears that the trial Judge had passed the orders under section 540, Criminal Procedure Code summoning them as Court witnesses on the basis of certain references made by prosecution witnesses Azizullah referred to hereinabove. Section 54), 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 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 smmon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."

10. A trial Court by aforementioned provision of law has been conferred wide powers to summon any material witness and examine him or even re-examine him if his evidence is considered by the Court to be essential to the just decision of the case. The first part of the section confers a discretionary power on a trial Court while a trial Court under the second part of that section in certain circumstances is under an obligation to summon witnesses if such evidence appears to it to be essential for the just decision of the case. Trial Judge will be obliged to summon a witness under the second part of the section only when it appears from the record before him that examination of such witness is essential to the just decision of the case. It is not possible to summarise all such instances where the trial Judge is obliged to act under the section as it will always depend on facts of every case. A witness mentioned in the F.I.R. Although not examined by the police during the investigation or witness mentioned in the challan in the reserve list may in certain cases be an appropriate Court witness. Even witness for the first time mentioned in examination of a witness to have witnessed the incident during the trial of the case may be a suitable Court witness. But the trial Judge in exercise of his wide powers conferred on him by section 540, Ciminal Procedure Code shall always refrain himself from acting as an Investigating Agency embarking upon a roving enquiry in a case by summoning certain persons as Court witnesses. A trial Judge as an impartial arbiter cannot assume the role either of an investigating officer or a prosecutor while acting under that section even though he may be motivated by pious reasons and his enthusiasm of doing justice in the case.

11. In the present case the witnesses who have been summoned as Court witnesses under section 540, Cr.P.C. Were neither named in the F.I.R. Nor examined by police nor their names were mentioned in the list of prosecution witnesses given in the challan nor any witness examined in the case mentioned any one of them to have witnessed the incident. It cannot, therefore, be said that their evidence appeared to be essential from the record of the case. None of the witnesses including prosecution witness Azizullah who were examined during the trial referred to such witnesses as being persons who had witnessed the incident. P.W Azizullah has merely stated that they were residing with the deceased. Such a statement by itself could not be made the basis for summoning them as Court witnesses. Even the application filed by the District Public Prosecutor did not so state. By summoning these witnesses it can always be alleged that the trial Court had passed the orders to assist the investigating authority and the prosecutor to cover up a material deficiency caused by their own lapses in the investigation of the case and thereby cast a shadow on it after not being impartial. I am supported by the case of K.V.R.S. Mani reported in A.I.R. 1951 Madras 707 in arriving at conclusion mentioned above.

12. For the foregoing reasons I set aside the order impugned herein and accept this Revision Application.

13. Revision .