2008 PLP 1053 (MLD)

MUHAMMAD AHSAN BHOON, J.

The petitioner, through this Criminal Revision, calls in question the order, dated 3-3-2008, passed by the learned Additional Sessions Judge, Faisalabad, whereby he dismissed petitioner's application under section 540, Cr.P.C. for summoning of Nasir Abbas, Inspector RIB as Court witness.

2. Briefly the prosecution case is that the petitioner is an accused in case F.I.R. No.75, dated 3-3-2006, offence under section 302, P.P.C. read with section 34, P.P.C. registered at Police Station, Tarkhani Tehsil Sammundari District Faisalabad, being tried by the learned Additional Sessions Judge, Faisalabad. The petitioner-accused on closure of prosecution evidence moved an application under section 540, Cr.P.C. For summoning of Nasir Abbas Inspector, RIB as Court witness in the trial, who conducted second investigation of the above said case, which was dismissed by the learned Additional Sessions Judge, Faisalabad vide his order, dated 3-3-2008, against which the present criminal revision has been preferred.

3. Petitioner in person states that Nasir Abbas Inspector, RIB, on an application submitted by Shaukat Ali son of Abdul Latif, conducted the investigation of the above said case under the order of the Additional Inspector General of Police (Investigation), Punjab, Lahore, who on the basis of some material collected by him found the accused-petitioner innocent.

4. On the other hand, learned DPG assisted by learned counsel for the complainant have opposed the prayer made by the petitioner and argued that prosecution evidence has been completed and petitioner has all the right to produce above said witness as defence witness and prayed for dismissal of the present petition.

5. I have heard the petitioner in person, learned DPG assisted by learned for the complainant and have gone through the file.

6. Although it is an admitted fact that Nasir Abbas, Inspector, RIB conducted the investigation of the case yet he was not cited by the prosecution as witness in the calendar of witnesses. However, during the trial it surfaced in the evidence that he had conducted the investigation and collected the material and on the basis of the same formed his opinion. In these circumstances, I am of the considered view that his evidence is essential to do complete justice. Reliance can be had to The State v. Muhammad Yaqoob and others (2001 SCMR 308), wherein their Lordships held, which is re-produced below, for facility of reference:-- "It is thus manifest that calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose but it is the duty of the Court to do the complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object. It is salutary principle of judicial proceedings in criminal cases to find out the truth and to arrive at a correct conclusion and to see that an innocent person is not punished merely because of certain technical commission on his part or on the part of the Court. It is correct that every criminal case has its own facts and, therefore, no hard and fast rule or criteria for general application can be laid down in this respect but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of section 540, Cr.P.C. It is obligatory on the Court to examine such a witness ignoring technical/formal objection in this respect as to do justice and to avoid miscarriage of justice." It would be important to mention here that the right of cross-examination is a valuable right granted under the law to the accused and an accused could not be forced to produce prosecution witness in his defence whereby one is deprived from his valuable legal right. In the circumstances mentioned above, I am inclined to allow this revision petition. Resultantly, the impugned order, dated 3-3-2008 passed by the learned Additional Sessions Judge, Faisalabad is hereby set aside and the learned trial Court is directed to call/summon Nasir Abbas, Inspector, RIB, as Court witness and record his statement provide opportunity to both the parties to cross-examine the witness and thereafter to proceed in accordance with law. H.B.T./A-32/L Petition allowed.