2006 PLP 2178 (YLR)

MUHAMMAD AKHTAR SHABBIR, J.

This Criminal Revision arises out of the order, dated 5-12-2005 passed by the learned Additional Sessions Judge, Sadiqabad dismissing the application of the petitioners filed under section 540 of the Criminal Procedure Code for summoning the police officers Rana Saeed Ahmed Inspector, Bashir Ahmad (Rtd.) Inspector (Investigation) and Khadim Hussain Inspector (Investigation).

2. The brief facts of the case are that on 4-11-2002 a case F.I.R. No.261 of 2002 under sections 302/324/34, P.P.C. had been registered by the complainant-respondent herein against the petitioners. After investigation, the police had cancelled the said F.I.R. because the petitioners were found innocent and not challaned to face the trial. Feeling aggrieved, the complainant-respondent filed a private complaint for the same offence.

3. Learned counsel for the petitioners contended that the police officers have declared the petitioners innocent and recording of their evidence is necessary for the ends of justice.

4. I have heard the arguments of the learned counsel for the petitioners and perused the record. There is no cavil with the proposition that under the law the Court is empowered to summon any person as a witness or examine any person in attendance though not summoned as a witness or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

5. Section 540 of the Criminal Procedure Code is divided into two parts. The first part is discretionary in nature, whereas the second part is mandatory. As per the first part of the said section, it is discretionary power of the Court to summon any person as a witness suo motu or on an application whereas according to the second part, the power, to summon, examine or recall and re-examine any person as a witness are to be exercised with care and caution. The Court cannot use these powers to advance the cause of prosecution or defence but these powers are only meant to the cause of justice. Solitary principle of judicial proceedings in criminal case is to find out the truth and to arrive at a correct conclusion and to see that any innocent person is not to be punished merely because of certain technical omission on his part or on the part of the Court if it appears essential to the Court that the evidence is necessary for just decision of the case. Under second part of section 540 of the Criminal Procedure Code it is obligatory to the Court to examine such a witness ignoring technical and formal objections. In this respect reference can be made to the case of State v. Muhammad Yaqoob and others (2001 SCMR 308).

6. Summoning of Investigating Officer as a Court witness, party seeking summoning of police officer has to satisfy the Court that evidence of such police officer is necessary for the Court to come to right conclusion on the question of guilt or innocence of the accused. Unless this condition is satisfied refusal to summon police officer as a Court witness would be justified. Reference in this context can be made to the case of Feroze Din v. Bahadur Ali (1995 PCr.LJ 18). The opinion of the investigating officer about the culpability of an accused and about the innocence of others implicated in the case is not only irrelevant but also inadmissible and not binding on the Court as laid down in the case of Arman Ali and 2 others v. The State (1992 SCMR 2055). The Court after having gone through these aspects of the case had found no justification for summoning the police officers as Court witness which evidence of the said police officer could not be shown to be necessary for the trial Court to come to the right conclusion on the question of the guilt or innocence of the petitioner. Reliance in this case can be placed on Haji Muhammad Abdullah v. The State (1995 SCMR 821).

7. For the foregoing reasons there is no illegality in the impugned order passed by the learned lower Court in reaching to the conclusion that the summoning of the police officers as Court witness is not essential to reach to the just conclusion of the case, hence this criminal revision being devoid of force is dismissed. However, the accused person cannot be deprived of his rights of defence and he has every right to produce any person in defence as a defence witness therefore, if so advised the petitioners may apply to the Court for summoning of the police officers at their expenses as defence witnesses and the application if filed by the petitioners, the Court will decide the same strictly in accordance with law. H.B.T./A-80/L???????????????????????????????????????????????????????????????????????? Revision dismissed.