P L D 1955 Baluchistan 12 (PLP)

R. K. M. SAKER, J. C.

The Public Prosecutor on behalf of the Crown has submitted a revision petition under the provisions of section 439, Criminal P. C. against an order of the Sessions Judge in Baluchistan (dated 5th August 1954), who declined to interfere in revision with an order passed by the E. A. C. and Magistrate First Class, Quaetta, whereby he declined to summon a certain witness. Briefly stated the facts of this case indicate that a request was made to the trial Court for the summoning of an expert witness to give evidence with regard to hand-writing. The trial Court, for reasons which were recorded, declined to summon the witness. Subsequently a second application was made and the learned Magistrate passed an order dated 19th June, 1954, again declining to summon the witness, though in this order he gave no specific reason except to refer to the same reasons which he had given in his previous order. The Public Prosecutor then approached the Sessions Court in revision. The learned Sessions Judge Came to the con clusion that the trial Court was in a position to give its decision on the other evidence recorded. The learned Sessions judge therefore held that there was no need to accept the revision petition and to direct that this expert witness should not be examined. The learned Public Prosecutor contends that the learned Sessions judge has erred in holding, inter alia, that the summoning of this witness- would lead to further delay in the disposal of the case. He therefore contends' that this argument has no bearing upon the question before the Court and should not have influenced it in deciding not to summon the witness. The learned Public Prosecutor further contends that because the trial Court has given no reasons for declining to summon the witness in its order of the 19th June, 1954 its ; order is ultra vices. It has been claimed that the second application to the trial Court was presented under certain changed circumstances which were not considered by the trial Court. In the first place, while I am inclined to agree that reasons of delay are no good grounds for declining to summon a witness whose evidence might be essential for the decision of the case. I have every sympathy with the views of the Sessions judge in this regard. I consider that the history of this case is lamentable, and I can only come to the conclusion that, for reasons unknown, the prosecution are endeavouring to delay this case unnecessarily. The case was first brought to my notice when an application for transfer was made in this Court-a similar application having failed in the Court of the District Magistrate Quaetta-Pishin. The grounds for seeking transfer were identical to the grounds now before me, namely that the learned Magistrate was prejudiced against the prosecution in declining to summon this witness. The record further indicates that not less than two applications were made in the Court of the Magistrate for the examination of this expert witness ; and- when he declined to summon him, the prosecu tion proceeded to approach the Sessions Court in revision and having failed in that Court, they now present their case before me. In other words, the proceedings now before me are the sixth attempt on behalf of the prosecution to endeavour to summon this expert witness. There is the inevitable conclusion that the prosecution have employed every possible device to delay the administration of justice. This case has been prosecuted in the Court since 1951 and but for the inordinate delay caused by the prosecution the trial should have been concluded long ago. In so far as this revision petition is concerned, there are two concurrent findings of fact, and it is an accepted principle that rarely, if ever, will this Court interfere by way of revision in such cases. The question at issue is the application of section 540, Criminal P. C. to this case. This section is divided into two parts, the first giving discretion to any Court at any state of the proceedings to summon a witness, while the second rakes it incumbent upon a Court to summon a witness whose evidence is considered essential. In both parts of this section, however, it is clear that the orders of a Court are discretionary. While a Court must summon a witness under the second part of the section, it will only do so if it is satisfied that the evidence of such a witness is essential. If therefore the trial Court comes to the conclusion that the evidence of a witness is not essential, it is at liberty to decline to summon such a witness. Moreover, parties to a case cannot dictate to a Court over the summoning of witnesses under section 540, Criminal P.C. The discretion to summon vests solely in the Court alone and no compulsion can be placed upon any Court to summon a witness, particularly where, for reasons stated in writing, the Court has come to the conclusion that the evidence of the witness concerned would not be necessary. I have no reason to believe that either of the two lower Courts has exercised its discretion in an improper manner or that this is a fit case in which I should interfere. The revision petition before me is accordingly dismissed. A. H. Petition dismissed.