2017 P Cr (PLP)

ATHAR MINALLAH, J.

The petitioner is the complainant in FIR No.33/2013 dated 23-01-2013, registered at Police Station Golra Shareef, Islamabad (hereinafter referred to as the "FIR"). The facts, as narrated in the FIR, are that the petitioner resides in Sector E-11/2, Islamabad, and is employed as a Manager in a Bank having its branch office in F-10 Markaz, Islamabad. It is alleged that on 13-01-2013 two persons came to his house and one of them threw acid on him and ran away. Hence, the FIR was registered under section 324 read with section 34 of the Pakistan Penal Code, 1860 (hereinafter referred to as the "PPC").

2. During the trial, a report under section 173 of the Criminal Procedure Code (hereinafter referred to as the "Cr.P.C.") was filed. The Trial Court recorded the statements and examined the prosecution witnesses, except the complainant and the Investigating Officer. At this stage the prosecution moved an application under section 540 of the Cr.P.C. for summoning the wife of the complainant/petitioner as a witness, who is stated to have witnessed the occurrence. The learned Sessions Judge (West) Islamabad, dismissed the application vide order dated 07-01-2015. Aggrieved by the dismissal of the application vide order dated 07-01-2015, the instant Revision Petition under section 435/439-A read with section 561-A of Cr.P.C. has been filed.

3. Mr. Jan Mohammad Khan, learned counsel for the petitioner, has contended that; the impugned order has not been passed in accordance with law; the impugned order is not a speaking order and is based on irrelevant considerations; the relevant factors for deciding an application under section 540 of the Cr.P.C. were not taken into consideration; the learned trial court, while passing the impugned order, has failed to exercise jurisdiction vested in it and has misconstrued and misinterpreted the provisions of section 540 of the Cr.P.C.; the learned court, while passing the impugned order, was required to take the facts and circumstances of the case into consideration and, thereafter, to determine whether the summoning or examination of a material witness was essential to the just decision of the case or not; this essential factor was not taken into consideration; the application under section 540, therefore, cannot be treated as having been decided and, therefore, the same is without authority and jurisdiction.

4. Syed Muhammad Tayyab, Advocate High Court, appeared on behalf of respondent No.1 and contended that; the instant petition has been filed by the petitioner/complainant and not by the prosecution, while the latter had filed the petition under section 540 of the Cr.P.C. before the trial court; the instant petition is not competent, as the same has been filed under three different provisions of the Cr.P.C.; the petitioner/complainant is merely attempting to fill the lacunas of the prosecution case, thereby causing harassment to the respondents; the learned Court has passed the impugned order in accordance with law and, therefore, no interference is warranted.

5. Mr. Sajjad Haider Malik. Advocate, appeared on behalf of the respondents Nos.2 and 3 and contended that filling any lacuna pointed out by the complainant in the prosecution's case with additional evidence could not be allowed at such a late stage; the proposed witness had neither joined the investigation nor was she was placed in the calendar of witnesses; the Challan had been filed and the proposed witness was not mentioned therein; reliance has been placed on "Muhammad Khan v. The State" 2003 PCr.LJ 1778, "Muhammad Usman and 2 others v. The State" 1991 MLD 17, "Abdul Khaliq v. Ansar Mehmood" 2009 YLR 486.

6. The learned counsel have been heard and the record perused with their able assistance.

7. The impugned order has been passed by deciding and dismissing the application filed by the prosecution under section 540 of the Cr.P.C. The alleged offence is heinous in nature and, therefore, the proceedings and trial cannot be treated lightly, as both the complainant/petitioner as well as the respondents have the right to a fair trial. The right to a fair trial can only be protected if the proceedings culminate in a just decision of the case. The question for consideration before this Court is to the extent of considering whether the learned Trial Court, while passing the impugned order and dismissing the application under section 540 of the Cr.P.C. has correctly appreciated the law, whether it has taken the relevant factors into consideration and whether any interference is required to ensure justice? As it is an admitted position that the application dismissed vide the impugned order dated 07-01-2015, was filed under section 540 of Cr.P.C., therefore it would be beneficial to examine the scope and ingredients of the said provision and, thereafter, consider whether the learned Court had correctly appreciated and applied the law.

8. Section 540 of the Cr.P.C. vests the power in a court to summon a material witness or examine a person present. The section provides that this power of the Court may be exercised at 'any stage' of an inquiry, trial or other proceedings under the Cr.P.C. This power may be exercised by summoning any person as a witness, or examining any person in attendance not summoned as a witness, or to recall and re-examine any person already examined. The section can be divided into two parts. The first part vests a discretion while the second part places a mandatory obligation on the court if the pre-requisites are satisfied. If it appears to the court that a person's evidence is essential to the just decision of the case, then there is no discretion to prevent such a person from being examined. The power under section 540 of the Cr.P.C. to summon a witness may either be exercised suo motu or on an application. The Shariat Bench of the Supreme Court, in "Muhammad Azam v. Muhammad Iqbal", PLD 1984 SC 95 has interpreted the provisions of section 540 of the Cr.P.C. and has held that the Court has no jurisdiction to refuse but was obliged to admit evidence, if it appears to it that doing so would be essential for a just decision of the case. The august Supreme Court in a chain of judgments has interpreted the provisions of section 540 of the Cr.P.C. and has enunciated the principles and law in this regard. The principles as enunciated may be summarized as follows:- i. The power cannot be used either to advance the case of the prosecution or that of the defense. ii. It is obligatory upon the Court to allow the production and examination of evidence, where it is essential for the just decision of the case. iii. Once it appears to the Court that the evidence was essential for a just decision then delay in moving the application was not relevant. iv. The Court has suo motu powers to exercise jurisdiction under the provisions if it appears to it that doing so would be essential for a just decision. v. The application under section 540 of Cr.P.C. cannot be dismissed summarily by holding that either the witness was not mentioned in the Challan or that it was belated or it might fill up lacuna in the prosecution case, unless the totality of material placed before the Court was considered to find out whether exercising powers would be essential for a just decision of the case. vi. The Court has to form its opinion as to whether the evidence of any person is essential to the just decision and any order passed ought to reflect an application of a judicial mind. vii. The Court is vested with wide powers and the same can be exercised at any stage of the case. viii. The Court shall form its opinion by taking into consideration the facts and circumstances of each case. ix. The Court has to exercise such powers judiciously and for a just decision of the case. Where a Court finds after an application of mind that the investigations carried out were defective then in such an event it cannot sit idle and becomes a duty to exercise all the enabling provisions under the law including section 540 of Cr.P.C. x. The object and purpose of exercising powers under section 540 of Cr.P.C. is to reach the truth and meet the ends of justice. xi. Courts must guard against exploitation of this power by the parties, so as not to allow one of them to be in a position of advantage.

9. Reference is made and reliance placed for the above principles and law on judgments "Muhammad Azam v. Muhammad Iqbal" PLD 1984 SC 95, "Muhammad Murad Abro v. The State", 2004 SCMR 966, "Muhammad Saleem v. Muhammad Azan and another", 2011 SCMR 474, "Nawabzada Shah Zain Bugti and others v. The State", PLD 2013 SC 160, "Painda Gul and another v. The State and another", 1987 SCMR 886, "Dildar v. The State", PLD 2001 SC 384, "Sh. Muhammad Amjad v. The State", PLD 2003 SC 704, "Abdul Salam v. The State", 2000 SCMR 102 and "Shahbaz Masih v. The State", 2007 SCMR 1631.

10. In the light of the above, it is obvious that the power under section 540 of the Cr.P.C. can either be exercised by the Court suo motu or on an application of one of the parties to the trial at any stage. A person who may not have been examined at the time of investigation, or whose name is not included in the calendar of witnesses or in the Challan, could be summoned under section 540 of the Cr.P.C. The most critical and fundamental considerations for a court while deciding such an application are twofold; firstly, it is to form an opinion as to whether the person is a material witness and, secondly, that examining such a witness is essential for a just decision of the case. The timing of summoning such a person to be examined as a witness is irrelevant, provided the Court is satisfied that the evidence would be essential to meet the ends of justice and for a just decision of the case. Likewise, it is also not a bar to examine such a material witness if, during the investigations, his/her statement was not recorded under section 161, Cr.P.C., or does not appear in the calendar of witnesses.

11. Perusal of the impugned order reveals that the learned court misinterpreted the provisions of section 540 of the Cr.P.C. and failed to take relevant factors into consideration. The factors weighed by the learned court are not germane for the purposes of exercising powers and jurisdiction under section 540, Cr.P.C. The learned court dismissed the application under section 540 merely on the grounds that the statement of the proposed witness was not recorded earlier, that the complainant had not endeavored to have his wife examined as a witness, or to have her statement recorded during the investigation; that he had failed to lodge a private criminal complaint and had made no attempt to include the name of the proposed witness at the earlier stage of the investigation and trial. The learned Court, therefore, on these grounds concluded that examining the proposed witness was 'unauthorized, immaterial and inadmissible' in the instant case. It is obvious that the learned trial court did not make an effort to satisfy itself or to consider the two essential ingredients; firstly, whether the person proposed was a material witness and, secondly, whether she was essential for a just decision of the case. The learned Court was required to take the entire material and the circumstances of the case into consideration, so as to form an opinion whether summoning of the proposed witness was essential for a just decision of the case. It is stated that at the time of occurrence of the crime, she was present at the scene. She appears to have been the only person who may have witnessed the crime. The Court had to consider whether she was a material witness and whether examining her was essential for a just decision of the case. The learned court, while passing the impugned order, did not consider the principles and law laid down for deciding applications under section 540 of the Cr.P.C., and thereby failed to exercise jurisdiction vested in it, besides the illegality and material irregularity as highlighted above. The grounds for dismissing the application under section 540 of the Cr.P.C. are neither tenable in law nor in consonance with the principles enunciated in this regard, particularly by the august Supreme Court.

12. This Court is not impressed with the argument raised by the learned counsel for the respondents that the petitioner/complainant could not have invoked the jurisdiction of this Court, as the application under section 540 of the Cr.P.C. had been moved by the prosecution before the trial court and not the petitioner. There is no force in this argument. The learned Trial Court was under a statutory duty to have applied its judicious mind within the parameters laid down under section 540 of the Cr.P.C. The powers could also have been exercised suo motu and, therefore, once the information had been placed before the Trial Court the same was to be considered and decided in accordance with law. Besides other provisions, this Court has expansive powers under section 435 of the Cr.P.C. to satisfy itself as to the correctness, legality or propriety of any finding or order and regularity of any proceedings of the lower court. The powers can be exercised by the court on its own motion and, therefore, it is not relevant as to which party places the information before the court. The purpose of such power and jurisdiction is to enable the High Court to secure the ends of justice. There is also no force in the argument that the petitioner/complainant could not have invoked three different provisions and, therefore, on this sole ground the petition is contended to be incompetent. It is well settled law that even the wrong mention of a section does not render a petition incompetent or vitiate the proceedings. Reliance in this regard may be made to "Rauf B. Kadri v. State Bank of Pakistan and another", PLD 2002 SC 1111. As far as the case law relied upon by the learned counsel for the respondents Nos.2 and 3 is concerned, the same has been found to be distinguishable. Besides the facts and circumstances being distinct in the said cases, the same have no relevance in the instant case or would by any stretch of the imagination be construed as having an overriding effect over the principles enunciated and laid down by the Supreme Court. 13. for what has been stated above, the instant petition is allowed and the impugned order, dated 07-01-2015, is hereby set aside. The application under section 540 of the Cr.P.C. shall be deemed to be pending before the learned Court and the same shall be considered and decided in accordance with the principles and law as highlighted in this order. JK/50/Isl. Revision allowed.