Hafiz MUHAMMAD AHMED vs GHULAM NABI and anothers
This criminal revision petition challenged an order of the Special Court, which allowed the examination of a Sub-Inspector (S.I.) as a prosecution witness under Section 540 of the Code of Criminal Procedure 1898, despite the witness having previously been implicated as an accused in the same case. The petitioner argued that allowing an accused person to testify as a witness could lead to anomalous situations, such as collusion between the accused and the complainant. The Lahore High Court examined the scope of Section 540, Cr.P.C., which empowers the court to summon any person as a witness if their evidence is essential for the just decision of the case. The Court held that the statute places no embargo on calling 'any person' as a witness, provided the court deems it necessary for justice. It further clarified that while the witness's prior status as an accused is relevant to assessing their evidentiary value, it does not disqualify them from testifying. The petition was dismissed, affirming the trial court's discretion to examine witnesses deemed essential for a just adjudication.
- Can a person who was previously implicated as an accused in a case be summoned as a witness under Section 540 of the Code of Criminal Procedure 1898?
- Is it mandatory for a court to examine a witness if their testimony is deemed essential for the just decision of the case?
- Does the status of a person as a former accused disqualify them from being examined as a court witness?
- Section 540, Code of Criminal Procedure 1898
- Section 173, Code of Criminal Procedure 1898
ORDER
' The order, dated 14-6-1999 passed by Mr.. Mahmood Maqbool Bajwa, learned Judge, Special Court-II, Lahore has been assailed on the ground that S.-I. Could not be summoned and examined as a prosecution witness under section 540, Cr.P.C. The main contention raised is that Ahmed Ali, S.-I. Had been summoned during the trial as accused person. A bulk of the prosecution evidence was recorded and throughout the proceedings he remained arrayed as accused person. An application under section 540, Cr.P.C. Was moved praying that he was a material witness and his examination was necessary for the just decision of the case. The learned Special Judge observed that section 540, Cr.P.C. Contains two parts, first part empowers the Court to summon any person as a witness or to examine any person in attendance, or recall and reexamine any person already examined. In the second part, it is qualified with the condition that his evidence should appear to be essential for the just decision of the case. He further observed that if the examination of a witness is necessary for just decision of the case then it is obligatory on the Court to examine him as a witness. Consequently, he allowed the application to summon and examine Ahmed Ali, S.-I. As a witness in the case.
2. The learned counsel has further argued that in case the acquitted accused person is allowed to be examined as a witness who of course will be cross-examined by the prosecution as well, the same may lead to an anomalous position because any accused person may bargain with the complainant party and thereafter, volunteer himself to stand as a witness for them. To avert such an eventuality which of course would result in injustice any person who has been accused in a case should not be allowed to be examined as a witness. The argument is not without substance.
However, each case has to be examined on its own merits, therefore, the facts of the particular case has to be taken into consideration. Ahmed Ali, S.-I. In the first instance had a position of a witness but subsequently, he was bracketed with accused persons. During investigation he was found to be not guilty, therefore, he was discharged. Even in report under section 173, Cr.P.C. He was placed in Column No,2 of the same, meaning thereby, that he had not been challaned by the prosecution. The name of Ahmed Ali, S.-I. Prominently figures in the F.I.R. And he is a person who can state about the material facts which may be helpful to decide the fact in issue. Viewed in this context the evidence by this witness appears to be necessary for just decision of the case. We are, therefore, of the view that the learned trial Judge was justified in observing that his evidence was essential for the just decision of the case and in that event it practically becomes obligatory for the Court to examine such a witness.
3. The phraseology applied in this section is that "any person" can be examined as a witness and no qualification or embargo has been placed therein. The only requirement is that the statement should appear to be necessary for the just decision of the case. Since no qualification or embargo has been placed on the word "any person", it means that in case the required qualification i,e, requirement for just decision is fulfilled then that witness should be examined as a Court-witness.
We cannot remain oblivious of the fact that ultimate aim and object of the Court is to deliver justice. The fact that during trial this witness remained implicated as accused person may be relevant to assess or appraise the evidentiary value. According to law even an accomplice is a competent witness. However, to evaluate his evidentiary value the fact that he had been accused person will be kept in mind by the learned trial Court. To deny the trial Court from examining the witness who in his opinion is necessary for the just decision of the case would amount to injustice.
We, therefore, are of the view that the order passed by the learned trial Judge is legal, just and proper and does not call for any interference.
4. This petition, therefore, is disposed of with the above observations.
Cited by 2 cases
- ZAFAR HUSSAIN vs UMAR DRAZ and others 2005 YLR 212
- MAKHBOOR HUSSAIN and 2 others vs TAZARAB HUSSAIN and another 2001 P Cr. L J 1046