2019 P Cr (PLP)

MUHAMMAD WAHEED KHAN, J.

Through the instant criminal revision filed in terms of Section 435 read with section 439, Cr.P.C., the petitioner has assailed the order dated 27.10.2018 passed by learned Additional Sessions Judge Chunian, District Kasur whereby application filed by the petitioner Sher Muhammad under section 540, Cr.P.C. for summoning of Mst. Nazia Bibi as PW was dismissed.

2. The brief facts of the case are that the petitioner had filed the private complaint against the accused persons/respondents Nos.2 to 15 as his cross version lodged in FIR No.213/15 had been cancelled by the police. During the trial in private complaint, the petitioner had filed an application under section 540, Cr.P.C. stating therein that Mst. Nazia Bibi whose name inadvertently could not be mentioned in the list of witnesses and since she is the essential witness for just decision of the case, so by accepting the application under section 540, Cr.P.C. she may be summoned as PW. The learned trial court dismissed the above said application filed by the petitioner on the ground that it has been filed at belated stage and neither the name of Mst. Nazia Bibi has been given in the list of witnesses nor her cursory statement was recorded.

3. Learned counsel for the petitioner submits that Mst. Nazia Bibi is an important witness of the incident as according to the statement of Sher Muhammad petitioner who appeared as PW-1 before the learned trial court stated that the accused while entering into his house tried to kidnap his daughter namely, Mst. Nazia Bibi, so her statement would be important for the just decision of the case. The other witnesses also made statements on the same line. Learned counsel further submits that during the investigation of the cross version the said Mst. Nazia Bibi made a statement before the police under section 161, Cr.P.C. and the same is available in the police file. In support of his contentions, learned counsel appearing on behalf of the petitioner has placed reliance on Pervez Ahmad v. Munir Ahmad and another (1998 SCMR 326) and Shahbaz Masih v. The State (2007 SCMR 1631), and submits that learned trial court has plenary powers under section 540, Cr.P.C for summoning the person as witness or re-examining any person already examined at any stage of the proceedings, if such evidence appears essential for just determination of controversy involved in the matter.

4. The learned counsel appearing on behalf of the respondents Nos.2 to 15 though opposed the instant criminal revision but requested that he has got no objection in acceptance of instant criminal revision, if direction may be issued to learned trial court for early conclusion of the trial as the main case titled Muhammad Sharif v. Sher Muhammad etc is near to completion and the petitioner is trying to linger on the case.

5. I have heard the arguments advanced by the learned counsel for the parties and have gone through the record.

6. Section 540, Cr.P.C. reads as under:- "

540. Power to summon material witness or examine persons present. "Any Court may at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case." There can be no dispute with the proposition that section 540, Cr.P.C. has two parts. The first part confers wide jurisdiction on the Court 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 person already examined. The second part places an obligation on the Court to summon and examine or recall or re-examine any such person if his evidence appears to be essential to a just decision of the case. In exercising discretion under the first part, the Court will have regard to the basic principles of a fair trial, which are well established. While under the second part, the Court has no discretion. The over-riding consideration over the second part is the duty of the Court to do justice. If the Court comes to the conclusion that the evidence of any person is essential to the just decision of the case, the evidence of that person must be made part of the record of the case in accordance with law. This legal proposition has been exhaustively explained/clarified in the case of Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95), therefore, reference to various portions of the judgment would be helpful. It has been observed at Page No.118 of the judgment, which is reproduced as under:- "This provision is divided into two parts: one where it is only discretionary for the Court to summon a Court-witness suo motu or on application, and the second part where it is mandatory for the Court to do so. The main condition to be satisfied with regard to the second part is that the evidence to be summoned under this part should appear to the Court to be essential to the just decision of the case. As has already been observed the evidence in question relating to Nikah was undoubtedly essential for the just decision of the case. In the circumstances of this case the failure of the learned trial Judge to act under the said part of section 540, Cr.P.C. has not only deprived the Appellate Courts of essential material for the just decision of the appeal, but has also occasioned miscarriage of justice." The observation at page 120 of the said judgment reads:-- "The failure of the parties to produce sufficient evidence after introducing this subject should not have deterred the trial Court in performing the duty under the second part of section 540, Cr.P.C. The trial Court has, as discussed above failed to do so and therefore, on this account also the case merits remand for fresh trial."

7. To determine the fact that any part of evidence is being essential or otherwise, it would not be necessary for the Court to hold a separate inquiry so as to reach a conclusion whether an item of evidence is essential for the just decision of the case. It would be enough if it appears so to the Court from any material and infers from the material including that which is already available to the Court in any form, admitted evidence or material otherwise lying on the judicial and other files before it. This legal proposition has also been discussed exhaustively by the august Supreme Court of Pakistan in the case of The State v. Muhammad Yaqoob and others (2001 SCMR 308) wherein it has been observed as under:- "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 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 omission 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."

8. The story of cross version in case FIR No.213/15 revolves around Mst. Nazia Bibi as the accused/assailants wanted to kidnap her but due to the intervention of the other witnesses the accused persons could not accomplish their task. The other aspect of the case is that during the course of investigation Mst. Nazia Bibi made a statement under section 161, Cr.P.C. to the police, which is available on the file. There is a force in the arguments of the learned counsel for the petitioner that the name of the said Mst. Nazia Bibi could not be mentioned in the list of witnesses inadvertently while filing the private complaint and accordingly her cursory statement could not be recorded. So, keeping in view the circumstances of the case, the statement of said Mst. Nazia Bibi is essential for the just decision of the case and summoning her as a witness would be justified under the second part of section 540, Cr.P.C.

9. For what has been discussed above, the instant criminal revision is allowed and the order dated 27.10.2018 passed by learned Additional Sessions Judge, Chunian is hereby set aside. Resultantly, application filed by the petitioner Sher Muhammad under section 540, Cr.P.C. for summoning of Mst. Nazia Bibi as PW is allowed.

10. Since the case is pending for a considerable period, therefore, learned trial court is directed to conclude the trial expeditiously, preferably within a period of two months from the date of receipt of this judgment. SA/S-21/L Revision allowed.