1980 PLP r (PCRLJ)

This is a petition under section 439, Cr. P. C., by Abdur Rashid, petitioner, against the order of an Additional Sessions Judge, Lahore, rejecting the petitioner's application under section 540, Cr. P. C. for summoning three witnesses as Court witnesses.

2. The brief facts of the case are that on 8‑12‑1976 one Jahangir was murdered, in respect of which his brother, Muhammad Sharif, lodged an F. I. R. at Police Station, Baghbanpura, Lahore, the same day at 4‑30 p.m. alleging that the said murder had been committed by Abdur Rashid petitioner and Muhammad Asghar alias Bhola co‑accused. The motive stated in the F. I. R. was that one Alam Butt had been murdered earlier in respect of which Jahangir deceased was an eye‑witness and that Abdul Rashid petitioner and his co‑accused Muhammad Asghar had asked Jahangir deceased on 5‑12‑1976 not to depose against the, accused of that case, but the deceased had refused to do so, as a result. of which he was murdered. The eye‑witnesses cited in the F. I. R. were Muhammad Sharif, Abdul Waheed and Iqbal Javed. During investigation of this case the Investigating Officer found the motive as set up by Muhammad Sharif informant as false. The Investigating Officer found that the complainant party bore a grudge against Abdur Rashid petitioner, as the daughter of one Bashir, a brother of the deceased, had developed illicit connections with one Yousaf, a brother of Abdor Rashid, petitioner, and before the occurrence a joint photograph of both bf them had been found by Jahangir deceased and his brother Bashir and they had lodged their protest against Abdur Rashid petitioner and his brother Yousaf before Malik Aslam and Imam Bakhsh, two respectables of the locality. It was also found that Abdur Rashid petitioner had betrothed his brother with his sister‑in‑law in Gujrat, which offended the complainant party and that is why Abdur Rashid petitioner had been involved due to the said grudge. The Investigating Officer also found that Muhammad Asghar alias Bhola co‑accused and not the petitioner was responsible for the fatal injury to Jahangir deceased, though in totally different circumstances from that stated in the F. I. R. In view of these circumstances, the investigating agency did not challan Abdur Rashid petitioner, but placed his name in Column No. 2 of the challan. In the summary of brief facts stated in the challan, the details of the investigation made by the police showing the innocence of Abdur Rashid petitioner, the details of the occurrence‑ relating to the photograph and the objections lodged by Jahangir deceased and his brother Bashir with Malik Aslam, Imam Bakhsh and Malik Inayat Lumbardar and the commission of murder by Muhammad Asghar alias Bhola in totally different circumstances, were all mentioned. It was finally stated that the investigating agency had found Abdur Rashid petitioner as innocent, which fact had been verified by the D. S. P. during his inspection, and therefore it was not challaning him and had placed his name in Column No. 2‑of the challan, but in view of the fact that the petitioner's name was mentioned in the F. I. R. his case was being left at the mercy of the Court. With the challan, a list of witnesses was furnished, but the names of the independent witnesses who had appeared in defence of the petitioner's case to show that he had not participated in the occurrence and that there was a specific motive why he had been falsely implicated, were not included therein.

3. When the challan came up before the Additional Sessions Judge, he summed Abdur Rashid petitioner to face the trial. When the trial began, the prosecution produced witnesses to support the original case of Muhammad Sharif informant and not the case as found by the police during their investigation. After the close of the prosecution evidence on 23‑1‑1980, Abdur Rashid petitioner lodged an application under section 540, Cr. P. C. in Court for the evidence of Malik Aslam, Imam Bakhsh and Malik Inayat to be examined as Court witnesses. On 26‑1‑1980 the said application was dismissed by the learned Additional Sessions Judge. On 27‑1‑1980 the statement of the petitioner and his co‑accused under section 342, Cr. P. C. were recorded. The case was then set down for the evidence of the defence for 28‑1‑1980. On the said date, an application was made for staying the proceedings of the case to enable the petitioner to move the .High Court in revision against the impugned order dated 26‑1‑1980. The said application was dismissed on 29‑1‑1980 and the case was again set down for recording of the defence evidence 30‑1‑1980. On the said date, the petitioner filed an application before the trial Judge for summoning Malik Aslam, Imam Bakhsh and Malik Inayat as defence witnesses through Court process and also filed the present revision petition before this Court against the impugned order dated 26‑1‑1980, which latter petition is now before me for disposal.

4. I have heard the arguments of the learned counsel for the petitioner, the complainant and the State and have also perused the record. The question that arises in the instant case is whether Malik Aslam, Imam Bakhsh and Malik Inayat, the independent witnesses referred to by the police in the brief facts of the challan, who are likely to displace the case of Muhammad Sharif complainant, should be allowed to be summoned as Court witnesses. These three persons are some of the independent witnesses whom the police, during investigation, examined and as a result of which they held that the case against Abdur Rashid petitioner did not stand proved and they placed his name in Column No. 2 of the police challan.

5. The provisions which relate to the examination of witnesses in trials before the High Court and the Sessions Court are contained in Chapter XXII‑A of the Code of Criminal Procedure. Under subsection (1) of section 265‑F of the Code of Criminal Procedure, the Sessions Judge has to "take all such evidence as may be produced in support of the prosecution" and under subsection (2) of the same section, he has to ascertain from the Public Prosecutor the names of all persons who are "likely to be acquainted with the facts of the case" and are "able to give evidence for the prosecution", for the purposes of summoning such persons to give evidence before him. The question, therefore, that arises is, what is the prosecution case. Is it the case of the complainant Muhammad Sharif, as set forth in the F. I. R. or is it the case of the police, as set forth in the challan filed in Court under section 173, Cr. P. C. Obviously, it is the latter. It is not the case of the prosecution that Abdur Rashid petitioner had also committed with Muhammad Asghar co‑accused, the offence, as alleged by Muhammad Sharif complainant; on the contrary, it is their case as submitted in the challan filed in Court, that Abdur Rashid petitioner had not committed the offence nor was he present at the spot at the time when the offence was committed and that Muhammad Sharif complainant had a motive to falsely implicate Abdul Rashid petitioner in view of some illicit relationship which Yusaf, a brother of Abdur Rashid petitioner, had with the niece of the deceased, in respect of which both the complainant and Jahangir deceased had felt insulted. As a result of the police finding, Abdur Rashid petitioner was not challaned and his name was placed in Column No. 2 of the challan. In these circum stances, therefore, there can be no doubt that, under section 265‑F (2), Cr. P. C., the Court had to elicit from the Public Prosecutor the names of all such persons likely to be acquainted with the facts of the prosecu tion case as was submitted by the police in their challan and who were able to give evidence in respect thereof, so that it could summon such persons to give evidence before it. In Stephen Seneviratne v. The King (AIR 1936PC289) it has been ruled "It is a wrong idea that the prosecution must call witnesses irrespective of consideration of number and reliability or that it should discharge the functions both of prosecution and defence. If it does so, confusion is very apt to result, more specially so when the prosecution calls witnesses and proceeds automatically to discredit them by cross‑examination. Witnesses essential to the unfolding of the narrative, on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution." In view of this very authoritative pronouncement of the Privy Council, it cannot be doubted that Malik Aslam, Imam Bakhsh and Malik Inayat, witnesses whom the petitioner desired to call as Court witnesses, were witnesses essential to the unfolding of the narrative on which the prosecution case was based and that they should have been called as ordinary prosecution witnesses, whether in the result the effect of their testimony was for or against the case for the prosecution. The public prosecutor, by calling witnesses in support of the complainant's case as prosecution witnesses, in effect actually called witnesses who did not support the prosecution case, but witnesses who were opposed to the same. In short, the public prosecutor by his gross negligence, destroyed the true case of the prosecution and proved the complainant's case, which the investigating agency had found to be false.

6. The practice of the prosecution agency in dealing with cases where the first informant's case, during investigation, has been found to basically or materially false, has neither been uniform nor clear. In very rare cases, the prosecution branch has shown independence and courage by submitting a challan clearly stating that the case of the first informant has been found to be false during investigation, that the true facts of the case and the culprits found responsible for the offence, during investigation, are those as submitted by them in the challan, that they have already discharged or desire to secure the discharge of such of the assailants who have falsely been involved by the informant in hi F. I. R. and that they have challaned those persons only, whom they have found to be guilty and that the list of the witnesses submitted by then with the challan is that of persons who shall support the case as found by them to be true. More often than not, the prosecution branch, out of fear, if not outside pressure, has submitted both the conflicting versions in the challan, sometimes placing the names of such persons mentioned by the informant as culprits, whom they have found to be innocent, in Column No. 2 of the challan and sometimes not even doing that and generally submitting a list of witnesses with the challan without an particular regard as to which of the two versions it is intended to support The said practice has grown up due to the absence of any proper rule or direction in the Police Rules or the Code of Criminal Procedure, specifically dealing with such cases. The instant case in which the prosecution branch referred to the two versions in the challan, placing the name of Abdur Rashid petitioner in Column No. 2, but opening the "Pandoras Box" for him by placing his case at the mercy of the Court and then submitting a list of witnesses with the challan of persons supporting the first informant's case, shows the utter muddle‑headed thinking which governs the determination of the line of action to be adopted when placing such cases before the Court. The prosecution branch should be clear and decisive in their line of action. If the investigating agency has found a case, as submitted by the informant, as true, the prosecution branch should recommend it and the challan should clearly support the said case. If it has found otherwise, the prosecution branch should not commend the informant's case for the consideration of the Court. And if the investigating agency has found a totally different version than that submitted by the informant and a totally different set of persons as the real culprits or some of them as named by the informant and some who are not, the prosecution branch should only commend the true case as found by the investigating agency before the Court an unequivocally support it with the proper evidence in its possession. It should not run with the hound and hunt with the hare by placing the case of those persons whom the investigating agency has found innocent, at the act it coup mercy of the Court, for, if anything, that is the most unmerciful perform.

7. Subsection (2) of section 265‑F of the Code enables the trial Judge to oversee the working of the Public Prosecutor to ensure that proper witnesses who are acquainted with the facts of the prosecution case are produced. Even otherwise the inherent duty of a Judge to offer proper guidance to a Public Prosecutor at appreciate places, not only because he has a right to oversee his working, but also because he has a duty to the State and the public to ensure that the trial is orderly and conducted in proper channels, has already been stated in Irshad Ahmad v. Abdur Rahim (1979 P Cr. L J 685) and need not be repeated.

8. Turning to the case in instance, it cannot be denied that the three witnesses, whose evidence the petitioner desired to call as Court witnesses are essential to the just decision of the case within the meaning of section 540 of the Code of Criminal Procedure. The failure of the trial Judge to examine them as Court witnesses has occasioned a miscarriage of justice. The trial Court should have examined these three witnesses on the application of the petitioner dated 23‑1‑1980. The proper stage for their production would have been before the petitioner and his co‑accused were examined under section 342, Cr. P. C. However, that stage has passed, but they can still be examined under section 540, Cr. P. C.

7. For the foregoing reasons, this petition is accepted. The trial Judge shall now summon the said three witnesses and examine them as Court witnesses under section 540, Cr. P. C.

8. The lower Court record should immediately be sent back to the trial Judge for immediate disposal of the case before him. Petition allowed.