2007 P Cr (PLP)

ABDUL SHAKOOR PARACHA, J.

Muhammad Amin and Muhammad Latif both sons of Muhammad Boota who being accused were facing trial in case registered vide F.I.R. No.640 dated 13-9-2002 for offence under sections 302/148/149, P.P.C. at Police Station Chak Jhumra, District Faisalabad. Through this revision petition under section 439, Cr.P.C. the petitioners impugn the order, dated 9-3-2005 passed by the learned Additional Sessions Judge, Faisalabad whereby the learned Judged refused to summon Usama Mumtaz Raja, S.P. Saddar as defence witness.

2. Learned counsel for petitioner contends that Usama Mumtaz Raja, S.P. Saddar conducted the investigation, therefore, he was necessary and relevant witness for the just decision of the case; further that under subsection (7) of section 265-F, Cr.P.C. it was mandatory for the Court to issue process for compelling the attendance of any witness for examination or the production of any document or other thing, unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice.

3. Conversely, learned State counsel defended the impugned order and contends that Usama Mumtaz Raja S.P. Saddar did not conduct the investigation of the case and he was not relevant and necessary witness, application was moved by the accused to summon Usama Mumtaz Raja, S.P. Saddar as defence witness only with a purpose to delay the trial, therefore, revision petition is liable to be dismissed.

4. I have heard the arguments of the learned counsel for parties and perused the record. Under subsection (7) of section 265-F, Cr.P.C. it was mandatory for the Court to issue process for compelling the attendance of Usama Mumtaz Raja, S.P. Saddar as a witness for examination. Unless application is made for summoning of witness for the purpose of vexation or delay or to defeat the ends of justice, the Court may refuse to call defence witness but at the same time the Court is obliged to record reasons for declining to issue process for production of defence witness. To my mind the Court had not recorded any solid reasons in writing for declining to issue process for production of above stated defence witness. It is the right of the accused-petitioners to produce as many as witnesses as they like in their defence. According to them, Usama Mumtaz Raja, S.P. Saddar, had conducted the investigation of the case. In this view of the matter, he was relevant and necessary witness for the purpose of defence of the accused-petitioners. Whether the evidence of Usama Mumtaz Raja, S.P. Saddar, is helpful to the accused-petitioners and could be relied upon is a question which can be decided at the time of disposal of the main case. It is premature to say that the opinion of the police is either binding on Court nor have any evidentiary value. Learned Additional Session Judge, Faisalabad, has committed material illegality by refusing to summon Usama Mumtaz Raja, S.P. Saddar as defence witness. This being so, impugned order, dated 9-3-2005 passed by learned Additional Sessions Judge, Faisalabad is set aside. Trial Court is directed to summon Usama Mumtaz Raja, S.P. Saddar, as defence witness.

5. Disposed of. H.B.T./M-479/L????????????????????????????????????????????????????????????????????????????????? Revision allowed.