1997 P Cr (PLP)

Malik Muhammad Nawaz Khan for Petitioner. Sardar Muhammad Ishaq Khan for Respondent No.2 Sardar Abdul Raziq Khan for the State. This revision petition is directed against the order, dated 18-1-1997 passed by the learned Sessions Judge, Rawalpindi whereby an application moved by the petitioner/complainant under section 540, Cr.P.C. was dismissed wherein a prayer was made for summoning one Abdul Aziz as a prosecution witness.

2. The brief facts are that Mst. Safdar Jan i.e. the petitioner lodged a report with the Police Station Civil Lines, Rawalpindi on 25-9-1995 in which she claimed that her daughter Mst. Rehana was married about 1-1/2 years prior to the occurrence. The aforesaid Mst. Rehana was allegedly maltreated by her in-laws and had made a complaint to her parents on several occasions whenever she visited them during that period. About 2 months prior to the occurrence a compromise had taken place between the parties, on the basis of which, Mst. Rehana had gone to the house of her husband. On the day of occurrence, two sons of the petitioner namely Abdul Aziz and Muhammad Zubair went to the house of their sister Mst. Rehana to see her and to tell her that her elder brother Abdul Majid was suffering from fever. The husband of aforesaid Mst. Rehana i.e. accused in this case restrained her to visit her parents house. At about 10-0D p.m. during the night the complainant learnt at her house that her daughter Mst. Rehana had committed suicide by shooting herself. The complainant thereupon reached the house of in-laws of Mst. Rehana alongwith her daughter Mst. Rubina Hameed and other relatives and found dead body of Mst. Rehana lying on a Palang (cot). She thereupon lodged the aforesaid report in which she expressed her strong suspicion that her daughter was done to death by her son-in-law namely Zulfiqar accused with the help of his brother Muhammad Azad, sister-in-law Mst. Jamila and his father Muhammad Khan. The aforesaid accused Zulfiqar was challaned and the case was sent for trial to the Court of Session. The prosecution evidence was partly recorded when the present petition was moved by the complainant that her son Abdul Aziz in whose presence the accused had restrained the deceased to visit her parents house be called as a Court-witness as he was never allegedly cited by the police in the calendar of witnesses although his evidence was material for the fair disposal of the case.

3. The learned Sessions Judge, however, dismissed the application on the ground that the aforesaid witness never appeared before the police during investigation nor he was cited as a witness in the calendar submitted with the report under section 173, Cr.P.C. The learned Sessions Judge also held that it was not made clear in the petition nor it was shown as to how the evidence of Abdul Aziz was necessary. On the contrary it was held that this petition was made in order to delay the trial of the case. In this connection it was observed by the learned trial Judge that trial commenced about 4 months prior to the moving of the application, but nothing was done during that period nor any step was taken during the investigation to see that the aforesaid witness is produced before the Investigating Officer and his name is included in the calendar of witnesses.

4. The learned counsel for the petitioner has submitted that delay in making the application cannot clog the course of justice. In fact the Court should exercise its discretion liberally in order to see that substantive justice is done in the matter before it. In this context it was alleged that evidence of Abdul Aziz was necessary to satisfy the ends of justice because it was in his presence that the accused restrained deceased to visit her parents house in order to see her ailing brother. It was allegedly the starting point of the trouble between the parties, which ultimately led to the occurrence. It was, therefore, urged that non -appearance of the aforesaid witness before the Investigating Officer or omission of his name from the calendar of witnesses would not stand in the way of the trial Court to exercise its discretion under section 540, Cr.P.C.

5. The petition was opposed by the respondents on the ground that the Court had not to fill in the lacunas of the prosecution evidence. In the instant case Abdul Aziz never appeared during the investigation nor he was keen enough that his name should be included in the calendar of witnesses. As such he was never claimed by the prosecution as a witness to the occurrence although his name figured in the F.I.R. for an incident in which the accused had allegedly restrained the deceased to visit her parents house. It was, therefore, submitted that there was no merit in the application because the examination of Abdul Aziz as a prosecution witness at this stage would prejudice the respondent/accused and would amount to filling up the lacunas in the prosecution case.

6. I have considered the foregoing contentions raised from both sides. The object of section 540, Cr.P.C. is to advance the interest of justice and not to grant any Premium to any of the parties at the trial in order to fill up the lacunas. The prosecution never considered Abdul Aziz as a material witness nor Abdul Aziz himself thought to become a witness in the case because he never appeared during the investigation nor he got his statement recorded regarding the incident of altercation, between the accused and the deceased on the fateful day. It was for that reason that the police did not cite him as a witness while submitting a report under section 173, Cr.P.C. The attitude of the complainant for citing him as a witness also appears to be luke-warm because a long silence was adopted when he failed to appear during the investigation and his name was not included in the calendar of witnesses while submitting challan to the Court for trial. The complainant side also remained silent for about 4 months after commencement of the trial, which showed that no sanguine effort was made to get Abdul Aziz examined as a witness. The question of delay, therefore, cannot be ignored under the situation. Even otherwise it has not been shown as to how the examination of Abdul Aziz was essential or without his examination the ends of justice shall not be satisfied. The mere fact that there is some flaw in the prosecution case, would not justify summoning of a witness under section 540, Cr.P.C. The impugned order does not suffer from any legal infirmity nor it is arbitrary or capricious. As such there is no ground for interference with the impugned order on the revisional jurisdiction of this Court. This petition is' accordingly dismissed. ' Since the main petition has been dismissed, this application is also disposed of accordingly. N.H.Q./S-111/L Petition dismissed.