2018 PLP 2490 (YLR)

NAZEER AHMED LANGOVE, J.

The instant petition is directed against the Order dated 15th December, 2016 passed by Additional Sessions Judge, Khuzdar whereby the application filed by the respondent No. 2 under section 540, Cr.P.C, was allowed.

2. Brief facts of the case are that on 09.10.2015 complainant Ahmed Bakhsh lodged a report with levies authorities of Thana Ornach alleging therein that on the fateful day he received information that his brother has died on account of a road accident. It was further alleged that on receiving such information he rushed to DHQ Hospital Khuzdar and found the dead body of his brother. After having buried the dead body and completion of formal affairs, he started inquiring about the death of his brother whereupon it transpired that in fact his brother had been murdered after strangulating him by the accused persons Mukhtiar and Ghulam Mohammad on the seat of vehicle instead of his death in a road accident as narrated by his companions, hence the registration of instant case, arrest of the accused. On completion of investigation, 'challan' of the case was submitted and trial commenced. The prosecution, in order to prove its case produced witnesses namely Ahmad Bakhsh, complainant, Dr. Javed, however important eye-witnesses of this incident could not be produced by the prosecution with the excuse of their non-coming forward on account of fear and threats advanced by the accused, hence the filing of application under section 540, Cr.P.C, with a list of witnesses for permission to produce them instead of those who are not appearing before the court for one reason or the other. The application so filed by the complainant was contested by the learned counsel for the accused persons but the learned trial court eventually allowed the same, hence instant criminal revision petition.

3. The learned counsel for the petitioner argued that the order impugned passed by the learned trial court is contrary to law, facts and principles of natural Justice, as such is not sustainable under the law and is liable to be dismissed. He next argued that names of additional witnesses have not been mentioned either in the 'challan' or in the statements of witnesses under Section 161, Cr.P.C., as such at this belated stage introducing them as witnesses would only be an attempt to fill up the lacunas. The trial court should not have been allowed the application but this important aspect of the case and legal proposition escaped notice of the learned trial court while passing the order impugned which caused miscarriage of justice to the petitioner. On the other hand the learned State counsel opposed the petition by submitting that the learned trial court was under legal obligation to allow witnesses whose evidence is/was necessary for a just and fair decision of the matter which is manifest from the second part of Section 540, Cr.P.C. He added that the accused persons/petitioners are involved in a case of murder. Initially they concealed the facts by giving it the colour of road accident and then forced the eye-witnesses not to appear before the court, as such there was no other option with the complainant except to file application for additional evidence which was rightly allowed by the learned trial court.

4. I have heard the learned counsel for the parties and gone through the record with their assistance which reflects that instant fateful incident took place on 9th October, 2015 with the firsthand information of road accident and then murder by means of strangulation. Important witnesses of this case who had disclosed the actual episode of murder of complainant's brother to him have been extended threats by the accused, as such they are reluctant to appear before the court and record statements.

5. Unfortunate and painful episode of this incident is that young man had been deprived of the remaining years of his life by strangulating him. As per medical report cause of death was suffocation, but no one is ready to come forward and bring the truth before the court. As per contention of the learned State counsel amongst other one of the reason for non-appearance of the witnesses before the court for recording their statements is that the complainant is a poor and helpless person and even still he is under threat, if so, while dealing with such kind of matters courts should remain more vigilant and careful to safe guard the rights of common people.

6. Adverting to the merits of the case and revision petition in hand, it may be observed that in similar circumstances the Hon'ble Supreme Court in case titled as Shahbaz Masih v. State reported in 2007 SCMR 1631 held as under:-- "The contention of learned Deputy Prosecutor-General that court of criminal jurisdiction enjoys plenary power to summon a person to give evidence as witness is undeniable. Court enjoys full powers to summon and examine any person as a witness at any stage of trial; rather it is imperative for the Court within terms of section 540, Cr.P.C. to summon and examine a person when evidence of such person appears to the Court essential to do the just attendance though not called as a witness. The underlying object, always, is to reach truth. However, the question in this case which requires our attention is whether a Court can, in pursuance of section 265-F, Cr.P.C, summon and examine any person as a witness when his statement under section 161, Cr.P.C. or under section 164, Cr.P.C. has not been recorded and his name does not appear in the calendar of witnesses. Contention of learned Deputy Prosecutor-General is that the Court can trials before the High Court and the Court of Session, (Chapter XXII-A) introduced by Law Reforms Ordinance, 1972 (XII of 1972). Therefore, to ascertain true import and purpose of this provision of law, it will be advantageous to read the same conjointly with other relevant provision namely sections 265-C, 265-D and section 265-E provided in the Chapter. Subsection (1) of section 265-C envisages that in all cases instituted upon police report, copies of documents, namely; (a) the first information report; (b) the police report; (c) the statements of all witnesses recorded under sections 161 and 164 and (d) the inspection note recorded by an Investigating Officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any, shall be supplied free of cost to the accused not later than seven days before the commencement of the trial; provided that, if any part of a statement recorded under section 161 or 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused. Subsection (2) of the said section, which, relates to cases instituted upon complaint in writing, inter alia, provides that the complainant shall state in the petition or complaint the substance of accusation, the names of his witnesses and the gist of evidence which he is likely to adduce at the trial, etc. and that the copies of complaint with documents and statements under section 200 or 202 shall be supplied free of cost to accused not later than seven days before the commencement of the trial. The next immediate provisions appearing in this Chapter are sections 265-D and 265-E. Cr.P.C. which, respectively relate to framing of charge and recording of plea. After that comes section 265-F, Cr.P.C., subsection (1) whereof envisages that if the accused does not plead guilty or the court does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution; provided that Court shall not be bound to hear any person as complainant in any case in which the complaint made by a Court. Subsection (2) of the said Section provides that the Court shall ascertain from the public prosecutor or, as the case may, from the complainant the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution and shall summon such persons to give evidence before it. Subsection (3) of said Section, envisages that the Court may refuse to summon witness, if it is of the opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Then subsection (4) provides that when the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence. Thus, reading of above provision of law, as a whole, reflects that the object of section 265-F appears to be that where accused does not plead guilty or he is not convicted on his plea the Court shall issue summons to those persons whom the Public Prosecutor or complainant consider to be acquainted with the facts of the case and be able to give evidence for prosecution so that their evidence is taken by the Court. Nothing is provided in the said Section that it shall be at the discretion of the Public Prosecutor or the complainant, as the case may be, to name any such person whose statement under section 161, Cr.P.C. or 164, Cr.P.C. has not been recorded and whose name does not appear in the calendar of witnesses. Had it been so, the very purpose of section 265-C, Cr.P.C. requiring obligatory supply of documents mentioned therein, well in advance, apparently with no purpose other than to enable the accused to know the prosecution case and meet the charges, if framed, would lapse into unconscionable consequences". In view of above re-produced observations of the Hon'ble Supreme Court, I am of the considered opinion that the trial Court had no jurisdiction to allow the application filed by the complainant under section 540, Cr.P.C. for producing the P.Ws. whose statement under section 161, Cr.P.C. or 164, Cr.P.C. have not been recorded and whose name does not appear in the calendar of witnesses. For the fore-going reasons, Revision Petition No.6 of 2017 is allowed and the order dated 15th December, 2016 passed by Additional Sessions Judge, Khuzdar whereby the application filed by the respondent No.2 under section 540, Cr.P.C., was allowed is set aside. JK/71/Bal. Revision allowed.