1999 P Cr (PLP)

"Dr. Irshad informed me that he came to know about the murder of the deceased through one Advocate who used to visit the dispensary of the deceased for check‑up purpose." Haji Amanullah in his examination‑in‑chief has deposed in the following terms:‑‑ "I and Abdul Fattah were sitting with complainant, suddenly telephone call came there, which was made by Dr. Irshad Ahmed." Faiz Muhammad P.W., Sub‑Inspector of Police, Police Lines, Khairpur deposed as under:‑‑ "I recorded the statement under section 161, Cr.P.C. of P.Ws. Dr. Irshad Ali, Haji Amanullah Shaikh and Abdul Fatah Shaikh." Whereas Syed Irshad Ali Shah in his evidence recorded by trial Court deposed as follows:‑‑ "Mr. Muzaffar Ali told me that he had gone to clinic of Dr. Abdul Hameed for the check‑up of his blood‑pressure where he found the dead body of Abdul Hameed. I accompanied Muzaffar Ali to the clinic of Abdul Hameed ... I, thereafter, informed on telephone to Shaikh Wali Muhammad in presence of Muzaffar Ali, Advocate." This witness has further deposed:‑‑ The accused Abdul Ghani was produced before the police by Nazir Ahmed, Head Moharrar of the office of S.P. Khairpur. House of Nazir Ahmed is situated adjacent to the house of deceased Abdul Hameed." It would be advantageous to refer to section 540, Cr.P.C. which reads as under: "

540. Power to summon material witness or examine persons present.‑‑‑ Any Court may, at 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." I have minutely examined the impugned order whereby trial Court has rejected the application mainly on the ground that names of the P.Ws. are not mentioned in the F.I.R. as well as calendar of witnesses submitted by the police and that application has been filed only to delay the proceedings of the case. In view of the evidence referred to hereinabove it is crystal clear that names of the witnesses mentioned in the application and sought to be examined have transpired' in the evidence recorded by trial Court. The application was filed with the only purpose so that the P.Ws. may be summoned and examined. The examination of the witnesses in any case is not to prejudice the case of either party because accused persons will have the ample chance to cross- examine them which is the only source through which truth can be had from the mouth of the witness. The evidence so furnished by the P.Ws. is to be examined and analysed by the trial Court at the time of judgment of the case. Section 540, Cr.P.C. gives full discretion to the Court to act for the ends of justice and the application was moved with the request that witnesses may be summoned and examined in Court. This section enables and in some circumstances also casts an obligation on the Court to summon the witnesses who would otherwise not be brought before the Court. Here in this case it is alleged by the learned A.A.‑G. that police with ulterior motive have deliberately withheld names of the P. Ws. from the list of witnesses in the challan and the complainant has also alleged that A.S.‑I. of the case has deliberately tried to favour the accused and has not recorded the statements of the witnesses with the result that prosecution will suffer irreparable loss. In view of the evidence recorded by the trial Court wherein names of these witnesses have been mentioned by the P.Ws. already examined, keeping in view the provisions of section 540, Cr.P.C., the application ought to have been allowed by the trial Court and the reason given by the trial Court for rejecting the application that it will delay proceeding of the case, in any case is not tenable. The case cited by learned A.A.‑G. is relevant and applicable to the facts of the present case. For the above reasons I allow this revision application and set aside the impugned order of the trial Court. The trial Court shall issue coercive process for procuring presence of the witnesses mentioned in the application so that they may be examined without loss of time. With this order, M.A. 1969 of 1997 stands dismissed having become infructuous and the ad interim order already passed is hereby recalled. N.H.Q./A‑299/K Revision petition allowed