MUHAMMAD IRSHAD vs THE STATE and others
This criminal revision petition challenges an order passed by the Additional Sessions Judge, Chichawatni, which dismissed the petitioner's application under Section 540 of the Code of Criminal Procedure 1898. The petitioner, as the complainant in a murder trial, sought to introduce birth certificates of two accused persons after the prosecution evidence had closed and statements under Section 342 of the Code of Criminal Procedure 1898 had been recorded. The petitioner aimed to prove the accused were not minors. The core legal question was whether the trial court erred in refusing to summon this additional evidence at such a late stage. The High Court upheld the trial court's order, holding that the discretion under Section 540 of the Code of Criminal Procedure 1898 is to be exercised only for the just decision of the case and not to fill lacunae in the prosecution's case. The court emphasized that the trial court cannot act as a prosecutor, and since the accused had not raised a plea of juvenility, the additional evidence was not essential for a just decision.
- Can a trial court allow the production of additional evidence under Section 540 of the Code of Criminal Procedure 1898 after the prosecution evidence has closed?
- Is a trial court permitted to act as a prosecutor or fill gaps in the prosecution's case when exercising its powers under Section 540 of the Code of Criminal Procedure 1898?
- Does the discretion to summon additional evidence under Section 540 of the Code of Criminal Procedure 1898 extend to evidence that is not essential for the just decision of the case?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 342, Code of Criminal Procedure 1898
- Section 540, Code of Criminal Procedure 1898
- Juvenile Justice System Ordinance 2000
ORDER
' This revision petition is directed against the order, dated 6-6-2001 passed by the Additional Sessions Judge, Chichawatni, who is holding the trial of the case F.I.R. No.421 of 1998, which was registered as far back as 20-11-1998, under sections 302, 324, 148 and 149, P.P.C. At Police Station Ghaziabad. The petitioner is the complainant of the case.
2. After completion and closure of the prosecution evidence and after recording the statements of the accused under section 342, Cr.P.C. On 22-5-2001, the petitioner moved an application under section 540, Cr.P.C. On 28-5-2001 for seeking permission to place on record the attested copies of the birth certificates of Imran Haider and Hassan Askari accused, who according to the said birth certificates were not minors and were more than 18 years of age. The learned Additional Sessions Judge vide his order, dated 6-6-2001 dismissed the said application of the petitioner, which led to this revision petition.
3. The learned counsel for the petitioner has made the following contentions:--
(1) That Hassan Askari accused has mentioned his age in his statement under section 342, Cr.P.C.
As 18/19 years, while Imran Haider accused mentioned his age as 22/23 years.
(2) That Hassan Askari was about 23-1/2 years old and Imran Haider was about 22-1/2 years old according to their birth certificates.
(3) That the apprehension of the learned counsel is that the Court might consider it age of Hassan Askari as mitigating circumstance.
(4) That the birth certificates are public documents, therefore, can be received in evidence. And
(5) That the certificates were produced before the Court without any delay, just after recording the statements of the accused under section 342, Cr.P.C.
' Learned counsel for the petitioner has also relied upon the case of Abdul Sattar v. The State 1986 PCr.LI 1536.
4. All the grounds taken by the learned counsel for the petitioner have no force. According to the provision of section 540, Cr.P.C. The trial Court in its discretion can summon any material witness for the just decision of the case. These birth certificates can hardly be termed as material evidence, necessary for the just decision of the case. The perusal of the order shows that the accused had never raised the plea that they were juvenile and they never claimed that they be tried under the provisions of Juvenile Justice System Ordinance. Even otherwise one of the accused is more than 22/23 years and the other is about 18/19 years, according to their statements under section 342, Cr.P.C. The learned Additional Sessions Judge has also mentioned in his order that in case any such point is raised, then the attested copies of the certificates, which had already been placed on the case file by the prosecution, would be looked into in the interest of justice. The case-law cited by the learned counsel for the petitioner fully supports the order passed by the learned Additional Sessions Judge, as it was held in the said case that a Court can summon any witness or document under section 540, Cr.P.C. But it cannot in doing so act as prosecutor nor can it fill in lacuna left by the prosecution.
5. The petitioner has tried to introduce this evidence after the closure of the prosecution evidence and after recording the statements of the accused under section 342, Cr.P.C. Even otherwise non- attested copies of the birth certificates are already on the case file. The order passed by the learned Additional Sessions Judge is neither perverse nor arbitrary. There is no reason to interfere with the order, dated 6-6-2001. Hence this revision is dismissed in limine.