2000 PLP 193 (MLD)

Sardar Muhammad Ishaque Khan for Petitioner. Qazi Muhammad Amin, M. Amir Butt and Malik Muhammad Kabir for A.A.‑G. for Respondents. Date of hearing: 21st May, 1999. Respondents Nos.2 to 5 are facing trial in a case registered on behalf of the petitioner under sections 302, 364 and 34 of the Pakistan Penal Code vide F. I. R. No. 128, at Police Station City Chakwal. Briefly, according to allegations contained in the F.I.R. that on 7‑7‑1996, at about 3.00 p.m., Mst. Asima Kaneez, the daughter of one Sajjad Hussain, a neighbour of the petitioner/complainant, who because of strained relations with her husband was living with her father. She asked Talat Mehdi, the son of the petitioner, for accompanying her to the District Courts as she intended to file a suit for dissolution of marriage. Talat Mehdi, accordingly, left for District Courts, Chakwal, alongwith Mst. Asima in his car. At about 4‑30 p.m., the petitioner was informed that, while Talat Mehdi alongwith two others were coming back from District Courts after leaving Mst. Asima Kaneez there, they were allegedly ambushed by respondents Nos.2 to 5 and they forcibly shifted Talat Mehdi to their car and left for Chakora. The petitioner, thereupon,went to District Courts in search of his son and was informed that sometime back respondent Nos.2 to 5 had come in their car in which Talat Mehdi was sitting in the middle. They took Mst. Asima Kaneez with them in the same car and had left towards Talagang.

2. Later on, both Mst. Asima Kaneez and Talat Mehdi were found dead and accordingly respondents Nos.2 to 5 were charged for their murder and are being tried for the said offence. During the trial, the prosecution produced Exh.P.10 the plaint for dissolution of marriage, stated to have been drafted on the day of occurrence and Exh.P.ll, the power of attorney in favour of Sardar Zamir Khan, Advocate. Both these documents were purportedly signed by Mst. Asima Kaneez deceased in vernacular. After the conclusion of prosecution evidence, during his statement recorded under: section 342 of the Code of Criminal Procedure, Sajjad Hussain Shah, the respondent No.4, produced certain documents which included the documents purportedly signed by Mst. Asima Kaneez, deceased, in English. The petitioner, thereupon, moved the learned trial Court for producing photo and attested copies of the plaint filed in a suit for recovery of dower tiled against one Syed Abbas Hussain Shah, the former husband of Mst. Asima Kaneez and power of attorney in favour of her counsel. Both these documents are stated to had been signed by Mst. Asima Kaneez in vernacular. It was also prayed that after admission of these documents in evidence they may be sent to Forensic Science Laboratory for expert opinion for determination of the signatures of Mst Asima Kancez. The said application was turned down by the learned Additional Sessions Judge, Chakwal, by his order, dated 28‑9‑1998. Being aggrieved of the said order, the petitioner has brought the instant revision petition claiming that for proper adjudication of the case it was necessary that those documents are allowed to be produced in evidence.

4. The petition has been contested on behalf of respondents Nos.2 to

5. Malik Muhammad Kabir, A.A.‑G. appearing on behalf of the State, however, contended that under the provisions of section 540 of the Code of Criminal Procedure the Court is fully empowered to allow production of these documents even at the conclusion of the trial as the purpose of the trial is to achieve the ends of justice. In this respect he relied upon Nusrat alias Nusree v. The State (PLD 1994 Lahore 93), wherein it was held by this Court that the Courts of law should not leave themselves to the mercy of the parties, the witnesses or the counsel but are required to actively participate in the proceedings to determine the truth. He also referred to Muhammad Azam v. Muhammad Iqbal etc. PLD 1984 $C 95, wherein it was held by the Court that the second part of section 540 of the Code of Criminal Procedure was mandatory provision and the Court can on its own accord on an application summon any witness. Similar view was adopted in the other case cited as Mst. Aamna Bibi v Kashif‑ur‑Rehman and another (1995 PCr.LJ 730), wherein it was also laid down that the Courts have unlimited powers to examine or recall witnesses in order to arrive at the truth.

5. Sardar Muhammad Ishaque Khan, Advocate, the learned counsel representing the petitioner contended that the crucial point in the case was as to whether Mst. Asima Kaneez had gone to District Courts on the fateful day for filing a suit for dissolution of marriage but by producing certain documents of which no prior notice was given to the prosecution the defence has tried to create a false impression. It was contended that the documents produced by Sajjad Hussain accused during his statement recorded under section 342 of the Code of Criminal Procedure without taking oath, the copies of which were neither supplied to the prosecution nor any notice for production thereof was given. These documents were in fact produced by surprise which entitles the prosecution to rebut the same. As the defence cannot, be taken by surprise, similar principle applies in the case of prosecution. In this connection, he relied upon Abdul Ghafoor v. The State and 2 others (PLD 1983 Lahore 139), to urge that the purpose of judicial proceedings is to find out the truth and to arrive at a correct decision. He also referred to Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95) claiming that the trial Court is required to summon the entire available evidence in a controversy.

6. Qazi Muhammad Amin, Advocate, opposing the petition on the other hand, contended that the trial has already been concluded and at this stage, the prosecution cannot be allowed to fill in the lacunas and as pointed out by the learned trial Court, the case can be decided on the basis of available evidence. He also contended that evidence of handwriting expert is neither the only nor the best method of proving the handwriting or signatures ,of a person. It is at best only an opinion. In this respect he relied upon Syed Shabbir Hassain v. The State (1968 SCMR 1126). He, therefore, contended that permission to prosecution to produce the documents at this stage is likely to further delay the conclusion of the trial. 7, It is true that the trial has already reached to its end and its conclusion should not be delayed unnecessarily but the fact remains that the main purpose of the trial is to reach at a just conclusion. It is the duty of the Courts to do justice within the ambit of law and should not mere on technicalities create a situation which may create impediments in advancement of justice. The provisions of section 540 of the Code of Criminal Procedure are quite exhaustive. These provisions fully empower the Court at any stage of the proceedings to allow the evidence which appears to it essential for the just decision of the case. The copy of the plaint and power of attorney which the prosecution now intends to produce are part of the previous judicial record which at this stage cannot be prepared or manufactured by any party. The trial Court, therefore, should have allowed the admission of such documents notwithstanding that the prosecution had already closed its case. These documents may not be very essential for decision of the case but certainly these will help the Court in arriving to a just conclusion. 8.???????? In view of the above, the impugned order dated 28‑9‑1998, passed by the learned, Additional Sessions Judge, Chakwal, is set aside. The two documents namely, copies of the plaint and of power of attorney purportedly signed by Mst. Asima Kaneez be allowed to be admitted in evidence in accordance with the provisions of law. As regard examination of the signatures of Mst. Asima Kaneez, deceased, by an expert it shall be for the trial Court to determine if the circumstances of the case require examination by a handwriting expert or as held in Usman Ghani v. Haji Muhammad Amin Khan (PLD 1975 Lahore 299) and Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others (1999 SCMR 85), the matter can be disposed of by examination of the same by the Court itself in accordance with the provisions of Article 84 of Qanun‑i‑Shahadat, 1984. Nevertheless the conclusion of the trial should not be delayed in any case and efforts should be made for disposal of the case by an early date. The instant petition is allowed accordingly. N.H.Q./S‑402/L????????? Revision petition allowed.