P L D 1979 Lahore 740 (PLP)

This is a petition under section 435, Cr. P. C. by Barkat AI] petitioner against the order of Mr. Ayyub Hasan, Additional Sessions Judge, Lahore, dated 27-1-1979, summoning Shakirullah to appear in Court on 29-1-1979 to be examined as a prosecution witness.

2. The brief facts giving rise to this petition are that the petitioner is one of the accused iii a case under section 302/34, P. P. C. pending before the above-said Additional Sessions Judge, Lahore. In the challan filed in Court, Mohammad Hanif, Siddique and Shakirullah were shown as three eyewitnesses to the occurrence. On 1-10-1978 two out of three eye-witnesses were present in Court and Muhammad Hanif was examined as P. W.

7. Due to the request made by learned counsel for the petitioner that he desired to cross-examine Muhammad Hanif P. W. 7 on the same day with the other eyewitnesses, the case was adjourned to 14-10-1971. However, on 1-10-1978, the Special Public Prosecutor, on the basis of an application made by Nasrullah complainant, made a statement in Court that he was giving up Shakirullah P. W. as unnecessary. Accordingly, the case was adjourned to 14-10-1978 for the cross-examination of Muhammad Hanif P. W. 7, the recording of the evidence of Siddique eye-witness and some others. After, 14-10-1978 the case was adjourned a number of times, but no witness was examined for one reason or another. On 11-1-1979, on the application of the complainant, the special public prosecutor gave up Siddique eye-witness as having been won over. On 22-1-1979, Muhammad Hanif P. W. 7 was crossexamined, but being won over, made a number of concessions. Thereafter the investigating officer was examined. Another witness who, in the meantime had been won over, was not examined and the Special Public Prosecutor gave him up and closed the prosecution case. Accordingly, the Court adjourned the proceedings to 25-1-1979, for recording the statements of the accused under section 342, Cr. P. C. On 25-1-1979 Nasrullah complainant made an application to the Court that Shakirullah eye-witness, who had been given up on 1-10-1978 by the special public prosecutor, on the assumption that since two eye-witnesses were prepared to support the case and he was, therefore, unnecessary, should be summoned and examined as Court witness. In the said application, it was submitted that on the day when he was so given up, the probability of both Muhammad Hanif P. W. 7 and Siddique being won over was not in contemplation and in view of the changed circumstances of the case, the said witness should be summoned again as a Court witness in the interest of justice. The case was adjourned to 27-1-1979 for arguments on the said application. On 27-1-1979, the special public prosecutor did not oppose the application and after hearing the arguments, the learned Additional Sessions Judge allowed the same and directed that Shakirullah should be summoned for 29-1-1979 so that his evidence could be recorded as a prosecution witness. The petitioner being aggrieved by this order, has filed the present revision petition against it, which is before me for disposal.

3. The learned counsel for the petitioner, in support of his petition, has submitted that once the prosecution case was closed, the Court could not summon any further witness, under section 265-F, Cr. P. C. and that the action of the learned Additional Sessions Judge in summoning Shakirullah as a prosecution witness was not only violative of this section but also section 540, Cr. P. C., as in either case, it amounted to filling up a gap in the prosecution case, which was not the duty of the trial Judge to do.

4. The learned counsel for the State, who has opposed the petition, has submitted that the order is both legal and proper, not only under section 265-F (2), Cr. P. C., but also under section 540, Cr. P. C., as, in either case, the summoning of Shakirullah was assential to the just decision of the case, in view of the peculiar circumstances narrated in the brief facts above.

5. I have given my anxious consideration to this case. In the instant case on 1-10-1978 Shakirullah eye-witness was given up by the Special Public Prosecutor as unnecessary. On this date Shakirullah and Muhammad Hanif were eye-witnesses in attendance in Court. The examination-in-chief of Muhammad :Hanif had been recorded and the case was adjourned on the request of the learned counsel for the petitioner to 14-10-1979 so that cross examination of Muhammad Hanif could take place on the same date the evidence of Siddique eye-witness was recorded. On 1-10-1978, it was neither within the comprehension of the complainant nor the Special Public Prosecutor that both Muhammad Hanif and Siddique would be won over by the next few hearings. It was the duty of the Public Prosecutor to ensure that all material evidence covering the ocular account was placed before the Court by examining all the three eye-witnesses. In what circumstances, the Special Public Prosecutor permitted the complainant to file such a written request with the Court to give up Shakirullah at an early stage, or gave his approval to the said request, is not available from the record, but, in an _ A case, his action in giving his consent at such an early stage to such a reques deserves to be criticised in the strongest terms. Under no circumstances should this eye-witness have been given up, till the very last. The Court not only acted rather carelessly in too readily recording such a request at a very early stage but, contrary to the well established principles governing Sessions trials, permitted ten adjournments between the examination-in-chief of the first eye-witness on 1-10-1978 to his cross-examination on 11-1-1979, which was not only scandalous but, as alleged by the complainant's counsel, indirectly encouraged two of the eye-witnesses being won over in that period. Sessions Courts should not only exercise care when accepting requests made by the public prosecutors for the giving up of material witnesses but should conduct their trials strictly day to day. Every effort should be made tha the evidence of the eye-witnesses is recorded day to day and the Cour should ensure the strictest compliance of this practice by not only makin the station house officers of the police stations concerned personal h responsible for their service, but in the event of any laxity on their part making the Deputy Superintendents of Police of their respective circle responsible for their production. The practice of public prosecutors who give up eye-witnesses at the earlier stages of the trial, without waiting to see that the evidence of one or more eye-witnesses has been recorded to their satisfaction, not only needs to be deprecated, but condemned. Public prosecutors should scrupulously refrain from giving up material witnesses, till the very last or till sufficient evidence to their satisfaction is recorded, so that such a "comedy of errors" is not repeated. The statement of the special public prosecutor made on 1-10-1978 giving up Shakirullah was obviously not only the result of carelessness but prematurely made under an erroneous assumption of facts or on wrong premises. The question which now remains is whether the order of the trial Court in summoning Shakirullah as a prosecution withers is maintainable.

6. Under subsection (2) of section 265-F of the Criminal Procedure Code, a Court is under a mandatory obligation to ascertain from the public prosecutor, or as the case may be, from the complainant, the names of all persons likely to be acquainted with the facts of the case and who are able to give evidence for the prosecution, so that it can summon such persons to give evidence before it. Under subsection (3) of the same section, a Court has the discretion to refuse to summon any such witness, i f it is of opinion that such witness is being called for the purpose of vexation, delay or defeating the ends of justice. Further, under subection (4) of the same section, when the examination of the witnesses for the prosecution and the examination (if any) of the accused is concluded, the Court is again mandatorily bound to ask the accused whether he desires to produce evidence. From subsection (4) it would appear that the case of the defence, therefore c does not begin till the prosecution case is completed, which consists of not only the examination of the witnesses for the prosecution but also the examination (if any) of the accused. It is one thing to say that the examination of witnesses is over and another to say that the prosecution case i complete and has been closed, so that the accused can take over in hand his defence and adduce evidence in its support. In these circumstances, it p is not entirely correct to say that on 22-1-1979 the case of the prosecution was complete and was closed. At any stage before the examination of the accused, the prosecution can press for the summoning of a witness previousl given up as unnecessary or being won over, if it can show that when he was so given up, the public prosecutor had done so under an inadvertent mistake or on an erroneous assumption of facts. Such a witness can be summoned under subsection (2) of section 265-F, Cr. P. C., for where a power is given to summon witnesses, who have already been cited as such in the police report, the power to summon such of them who have been given up unde an inadvertent mistake or an erroneous assumption of facts or on wrong premises, is obviously included. The fact that the request is made after the Prosecutor haq closed his evidence. but before the accused has been examined does not render the subsection inoperative. What is only to be seen is that the person who is to be summoned is one whose name appears as a witnes in the police report filed in Court under section 173, Cr. P. C., that the request for so summoning him has been made or is supported by the publi prosecutor and that the intention is not to get up gaps in the prosecution case. Where the name of such a person is not cited as a witness in the police report or where his name is so cited, but.the public prosecutor does not desire or approve of his being so summoned, subsection (2) of section 265-F, Cr. P. C. would not apply, but section 540, Cr. P. C. would hav e to be resorted to. Section 540, Cr. P. C. is an omnibus section which give wide powers to the Court at any stage of the trial to examine any person whose evidence :t considers necessary and in the interest of justice, and this power not only encompasses the power to recall and resummon witnesse already examined, but to examine witnesses given up as well. In view o the vast range covered by section 540, Cr. P. C., the tendency to resort generally to this section is, therefore, understandable. But even assuming, though not without reluctance, that subsection (2) of section 265-F, Cr. P. C. is inapplicable to the instant case, yet section 540, Cr. P. C. will still apply, for under this section the Court can examine any person as a witness, if the evidence of such a person appears to it to be essential to the just decision of the case. As held by Somasundaram, J. in In re: N. Krishanaswami (1),1 if any matter arises ex improviso which could not have been contemplated by the prosecution, then the Court is entitled to examine certain witnesses as Court witnesses to meet it, if it is in the interest of justice. The mere fact that a. prosecution witness is given up due to on inadvertent mistake or under an erroneous assumption of facts or an wrong premises, which later compel the trial Judge to review his earlier order and summon such a witness, if it is essential to the just decision of the case, it cannot be said that the action of the Court amounts to filling up a gap or clearing a lacuna.

6. In view of my finding given in para 5 above that the statement of the special public prosecutor dated 1-10-1978 was made under an erroneous assumption of facts or on wrong premises; the examination of Shakirullah as a witness is essential to the just decision of the case. The order of the trial Court is not open to objection. The fact that Shakirullah has been summoned as a prosecution witness and not a Court witness, should allay any fear that the petitioner may have that his case will be spoiled by the public prosecutor cross-examining his own witness. The order summoning Shakirullah as a prosecution witness is the only correct order the trial Court(IY A 1R 1956 Mad. 592) could have passed in the circumstances and cannot be taken exception to. In Bashir v. State (1976 P Cr. L J 625 ), where a learned Magistrate gave an opportunity to the prosecution to produce its evidence after the prosecuting inspector had closed the prosecution evidence, the High Court on an appraisal of all the facts and circumstances, held the order to be legal, as the same was passed in the interest of justice and was otherwise essential for the true and just decision of the case. In the present case, the order of the learned Additional Sessions Judge, Lahore, dated 27-1-1979 is both correct and legal and does not call for any revision.

7. For the foregoing reasons, there being no merit in this petition, the same is dismissed. t;. G. D.??????????? Petition dismissed.