P L D 1967 Lahore 1045 (PLP)

2. The occurrence in this case took place on the 15th of May 1966, at about 9 a. m. in the area of village Usman Khattar, Police Station Sangjani. The F. I. R. was drawn up on the basis of the statement, Exh. P. C., made by the deceased, Raja Amir Muhammad son of Sher Baz Khan before A. S. I. Fazal Dad (P. W. 4) in Health Centre, Khanpur at 1 p. m. on the same day. The deceased breathed his last on the 18th of May 1966, and the statement made by him has been relied upon by the prosecution as his dying declaration The deceased, according to the dying declaration, was attacked by eight persons, while he was proceeding from the house of his Pir after getting an amulet. When he reached near the house of Pir, Mazhar Hussain, he saw Master Khaki Zaman, armed with a gun, Khaki Zaman, Member, son of Gohar-ur‑Rehman, and Gul Aksar, armed with pistols, Elahi Dad, Hussain and Manzur armed with spears, while Safdar and Muhammad son of Gulab (who has also been described as Noor Muhammad in the evidence of P. W. 1) were armed with sticks. All the assailants attacked the deceased. Gul Aksar fired with his pistol, but the deceased ducked, and lay on the ground. While he was so lying, the accused armed with lathis, spears and gun started injuring him. The deceased received a large number of injuries, and was removed to Khanpur hospital, where he made his statement, Exh. P. C. The motive for the attack, as described in the dying declaration is two fold. It is said that the last B. D. Elections had left a feeling of acrimony between the parties, and that the deceased had made a report against Master Khaki Zaman son of Nawab and Gul Aksar that they were running a gambling house in the village, and on his report, the police had raided their premises. In the evidence before the Committing Magistrate, it was alleged by Nawab Khan P. W. that as a consequence of this raid, Gul Aksar and his father were challaned.

3. The accused during the investigation put up a plea that it was not they, but four other persons, who had attacked the deceased. These four persons were, Muhammad Sadiq son of Allah Ditta, Sadiq Hussain son of Hussain Shah, Fazal Elahi son of Gulab, and Muzaffar son of Muhammad Niwaz Bhatti, residents of Thata Khalil, District Rawalpindi. The investigation changed hands from the local police to the C. I. A. Certain defence witnesses were produced before Syed Ajmer Shah, Inspector, C. I. A. (P. W. 12) to support this version. The local police arrested eleven persons in all, i. e. seven persons out of the eight named by the deceased in the dying declaration, and four others, who had been named by Master Khaki Zaman, etc. as the real culprits. Manzur Elahi alias Manzura remained absconding, but later on appeared in Court on the 9th of July 1966, The Investigating Officer found the version of the accused to be false. His enquiries revealed that Sadiq Mochi, one of the four accused named in the counter‑version, was present in the Cement Works at Wah at the time of the occurrence, and that the defence witnesses produced by the accused were connected with the first set of accused. It was clearly stated in the police report that only eight persons were found to have committed the offence, and that Sadiq Mochi, Sadiq Hussain, Fazal Ilahi, and Muzaffar were innocent, but they had been shown in column No. 2, because of an order to that effect. It is not clear, as to under whose orders these four persons were shown in column No.

2. But there is no denying the fact, that the prosecution never treated them as accused persons. The record, however, shows that the four persons, named in the counter‑version, or being treated accused persons, along with other set of eight accused, who had been named in the dying declaration as well as the police report as real culprits. Muhammad Sarwar (P. W. 2) has categorically denied the presence of the second set of four accused at the spot and their participation in the commission of the offence. It is really surprising that neither the learned Magistrate dealing with the case, nor the Prosecution Agency realised the futility of these joint proceedings. Orders were written and signed mechanically without at all adverting to the culpability of these accused. I may observe here that the proceedings against these four accused could not be taken along with the other set of the eight accused, because the former were named in the counter‑version, which aims at the negation of the prosecution story as contained in the report under section 173 of the Criminal Procedure Code. The evidence against both the sets being conflicting and contradictory to each other, a joint enquiry against them would be something beyond the scheme of the Criminal Procedure Code. Sections 208 and 210 of the Code contemplate the examination of the complainant (if any), and the "production of evidence" against the accused, "in support of the prosecution" and not in derogation thereof.

4. The question of the jurisdiction of the Magistrate to deal with the case of the second set of the accused requires further examination. Section 190 of the Criminal Procedure Code, which deals with the cognisance of cases is as follows:‑ "190.‑(1) Except as hereinafter provided any District Magistrate or Sub‑Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence‑‑ (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. It cannot be said that cognizance against the second set of the accused was taken either under clauses (a) or (b) of section

190. The police report definitely exonerates these four accused, and there was no complaint either before the learned Magistrate, whereby he took cognizance of the case against them. We can visualize a case, wherein an accused person was alleged to have some connections with the commission of the offence, but the prosecution, having failed to discover some evidence against him, had placed his name in column No. 2, and he was summoned by the Magistrate after the discovery of some evidence. But in this case, the prosecution had made their position very clear, that they did not treat the persons named in column No. 2, as having any connection with the commission of the offence, and a question arises for consideration, whether at all, these persons could be summoned as accused persons under any of the provisions of section 190 of the Criminal Procedure Code. It was held by the Federal Court in Abdus Sattar Mola v. The Crown (P L D 1953 F C 145) that in a case, where an accused person was not challaned by the police, although his name was mentioned in the F. I. R., the Magistrate would be deemed to be acting under section 190(1) (c) of the Criminal Procedure Code, if he decided to summon that person as an accused, and it would be incumbent upon him to warn the accused concerned under section 191 of the Criminal Procedure Code, that he could have the case transferred from that Court. The proceedings, as against the above four accused are not competent because the Magistrate never took cognisance of the case against them by active application of mind, but even if they were competent, and the Magistrate had summoned them after proper application of his mind, he would' still be debarred from hearing the case, because of non‑compliance with the provisions of section 191 of the Criminal Procedure Code.

5. It is, therefore, incumbent upon the Magistrate to pass proper orders with regard to these four accused after giving the parties an, opportunity to be heard. , The above question was not directly raised before me in these proceedings, but it was suggested that a justification of the impugned order of the committing Magistrate summoning four witnesses, under section 540 of the Criminal Procedure Code, may be found in the fact that the evidence recorded by the police against these four persons had not been produced‑by the prosecution. The Court could have, therefore, resort to the provisions of section 5 0 of the Criminal Procedure Code. I had a feeling that the joint enquiry against the two sets of accused, in the circumstances of the present ease, was not permissible under the law. 1, therefore, asked the counsel to address me on this aspect of the case, and after hearing them, I thought it necessary to give a direction, to the learned Magistrate, in exercise of the revisional powers of this Court, in the terms mentioned above.

6. Now let me revert to the basic question of the legality and propriety of the impugned order of the Magistrate. I find from the lower courts' record (page 47), that an application was filed on the 21st of December 1966, before the learned Magistrate, requesting that the four persons, named in the application, be summoned as prosecution witnesses, or as court‑witnesses, because they would reveal in, court a version, which has been withheld by the prosecution. The Court took cognizance of this applica tion on the 2nd of January 1967, on which date, it passed an order, adjourning the hearing of the application to the 16th of January 1967 for arguments. A one line order was passed on the 16th January 1967, that the witnesses be summoned as court -witnesses for the 26th of January 1967. There is a detailed order also of even date below it. This last order would ordinarily appear to be quite unnecessary in view of the earlier order passed, and it is possible that the Court at a later stage realised the necessity of giving some reasons for its order. This order states that the police had examined these witnesses during the investiga tion, and the copies of their statements before the police had been provided to the accused, but the witnesses had not been produced in Court. None of the order passed on this application shows that the prosecution was given any notice or was heard before the impugned order was passed.

7. It has been argued before me that the prosecution had never owned these witnesses and were, in no way, bound to produce them, because in that event, they would be damaging their own case. The Officer, who signed the report, under section 173 of the Criminal Procedure Code, had clearly stated that these witnesses were examined at the instance of the first set of eight accused, and the version given by then was found to be false. On this premises, it was asserted that they were essentially defence witnesses and the court, in deciding to summon them as court‑witnesses, had actually taken upon itself the functions of the defence counsel. It is argued that in all fairness to the prosecution, the Court should have waited, till the accused had made their statements before it, and indicated as to whether or not, they would like to summon these witnesses in their defence. It was further asserted that by summoning these witnesses, as court‑witnesses, the learned Magistrate has placed the defence in a position of advantage, because they will be in a position to cross‑examine their own witnesses. This course of conduct, it is argued, will result in prejudice to the prosecution.

8. I find force in the contention of the learned counsel for the petitioners. There is no doubt that the Courts have very wide powers to summon court‑witnesses, under section 540 of the Criminal Procedure Code, but the very extent of these powers, imposes upon them a reciprocal responsibility of the same magnitude to use these powers with care and circumspection. The order of the learned Magistrate is clearly prejudicial to the prosecution, and if acted upon, would entail results, which are not postulated by the rules of procedure, which are meant for advancing the cause of justice, and not for hampering it. These witnesses were produced by the accused before the police. They are essentially defence witnesses, and if the defence so chooses, it can produce them before the Committing Magistrate or before the Sessions Judge. Section 540 does not come in to play, where the defence could have the opportunity to produce a certain witness. I may refer here to the case of Chetu v. Ditto (11 P R 1886 (Cr.). In this case, two persons were named by the accused in his statement but before he had made a request for summoning them as his witnesses they were examined under section 540 of the Criminal Procedure Code. Mr. Justice Plowden remarked that the Magistrate had totally misapplied section 540 of the Criminal Procedure Code and observed as follows:‑ "The duty of a Magistrate trying a warrant case is clearly laid down in a Code, and has been further explained in the judgment, reported as Criminal Ruling No. 29 of Punjab Record, 1883. A Magistrate cannot properly revert to section 540 of the Code in order to avoid the responsibility of making up his mind as to the value of the evidence for the prosecution. The power therein conferred upon a Court to summon a witness does not extend to witnesses named for the prosecution or the defence; for such witnesses the Court is bound to summon, unless there be cause to the contrary. Section 540 is a supplementary provision enabling and in certain circumstances, imposing on, the Court, the duty of summoning a material or essential witness, who would not otherwise be brought before the Court."

9. The learned counsel for the petitioner invited my atten tion to the case of Dr. M. Abdul Sami v. State (P L D 1962 Lah, 271). In this case, neither the prosecution was willing to have `N' called as a court- witness, nor was the defence interested in his being examined as such, but the learned Magistrate, holding that it was in the interest of justice to examine `N' under section 540 of the Criminal Procedure Code, summoned him. It was held that the Magistrate had misused his powers under section 540 of the Criminal Procedure Code. The learned Judge hearing the case observed as follows:‑ "A Magistrate trying a criminal case acts as on arbiter between the parties. He is the Judge in the cause and not the investigat ing agency. That is the function of the prosecutor. In discharging his functions, it is the duty of a Judge to administer justice without fear or favour regardless of who, the parties are in the case, but he is not to abandon his high place of an impartial arbiter, and assume role of a prosecutor, however, altruistic his motives may be." It is, therefore, clear that it is only for the purpose of the just decision of a case that a Court can have resort to section 540 of the Criminal Procedure Code for summoning court‑witnesses. He cannot use these powers to advance the cause of the prosecu tion, or that of the defence, and wherever he passes such an order, putting one of the parties in a position of advantage, vis‑a vis, the other, the High Court will be justified in interfering in the exercise of its revisional jurisdiction to correct the error.

10. I, therefore, accept the revision petition, and set aside the order of the learned Magistrate, dated the 15th of January 1967, by which he summoned, Bashir Khan, Mir Afzal, Maula Bakhsh, and Sher Ahmad, as a court‑witnesses. K. B. A. Petition accepted.