2005 PLP 943 (YLR)

Tariq Mahmood Khan for Respondent No.3. Shahzad Aslam Khokhar for the State. During the trial of a case registered through F.I.R. No.241 of 2002, at Police Station Liaqatpur, District Rahimyar Khan, under sections 302/460/109/216/337‑F(v), P.P.C. before the learned Additional Sessions Judge, Liaqatpur, learned D.D.A. had given up the witnesses, namely Mazhar Ghaus No. 772‑C and Ch. Nazir Ahmad, Judicial Magistrate, Khanpur considering them unnecessary.

2. Riaz Ahmad, complainant moved an application on 4‑3‑2004 for the summoning of Ch. Nazir Ahmad, Judicial Magistrate, Khanpur under section

540. Cr.P.C. According to the informant/complainant evidence of Ch. Nazir Ahmad, Judicial Magistrate, Khanpur was material for the decision of the case because he was to prove the proceedings of identification parade. It was complained in the application by the informant that the learned D.D.A. had although given up the witnesses as unnecessary, yet Ch. Nazir Ahmad, Judicial Magistrate was an important witness whose absence would cause prejudice to the case of the prosecution. The learned. Additional Sessions Judge, Liaqatpur who was seized of the case, after considering the arguments of the learned counsel appearing on behalf of the parties, allowed the application on 13‑3‑2004. Aggrieved from the aforesaid order, one of the accused, named Gul Muhammad, has filed this criminal revision to get the impugned order set aside on the grounds that the Public Prosecutor, who was the sole person authorized by section 493 of the Cr.P.C. to conduct the trial of the case could move such an application to the trial Court and that the application on behalf of the complainant was not competent; that the permission had caused prejudice to the petitioner in his defence, as the petitioner had conducted cross examination to the witnesses of the prosecution with this consideration that the prosecution was not going to produce the aforesaid witness.

3. In reply to the arguments of the learned counsel for the petitioner, learned counsel for respondent No. 3/complainant has vehemently urged that the complainant was empowered by law to pursue his case, which was reported by him to the police and the commencement of the proceedings had taken place at his instance. As the witness to be produced was an important person to be examined for the proof of identification parade was given up by the aforesaid learned DDA, due to some misunderstanding, therefore, the Court dealing with the case, could rectify such error and the revision against such an order was incompetent.

4. Learned counsel for the State has also supported the version of the learned counsel for the complainant.

5. I have considered the arguments of the learned counsel appearing on behalf of the parties and have perused the record.

6. No doubt, the learned DDA, on 27‑2‑2004 had given up Ch. Nazir Ahmad, Judicial Magistrate, Khanpur as being unnecessary, yet learned trial Court was not helpless and could not be a silent spectator with blind eyes and deaf ears, to the facts and circumstances of the case. It has to regulate and to conduct the case according to law, and has not only to follow the procedure but has to take steps by passing different orders on different occasions and events, to keep the balance of justice straight. The errors committed due to some misunderstanding can be rectified by the learned trial Court by its order. The name of the witness, Ch. Nazir Ahmad, Judicial Magistrate, was entered into the list of witnesses of the prosecution and the learned trial Court had found the prayer of the complainant reasonable when it had found that the witness who was an important and material witness to the facts of the case was being wrongly left over by the learned DDA, therefore, the learned trial Court had permitted the examination of the aforesaid witness. Section 540, Cr.P.C. empowers the Court, conducting the inquiry, trial or other proceedings, to summon any person as a witness. The only condition, which has been imposed and attached to it, is that the evidence of the witness, must appear essential for the just decision of the case. As the evidence of the witness was material one, so the learned trial Court had rightly exercised its power under section 540, Cr.P.C.

7. It may be pointed out that the powers granted under section 540, Cr.P.C. can be exercised by the learned trial Court even suo motu, when it considers evidence of such witness at any stage, subject to its satisfaction, a stepping stone for the just decision of the case vide 2001 SCMR 424. (Imran Ashraf and 7 others v. The State).

8. As regards the other objection of the learned counsel for the petitioner that the application could not be filed by the complainant/informant, it is of no avail because it can be treated that the applicant had only informed the Court with regard to the error, which was being committed due to misunderstanding of the learned DDA. In PLD 1979 Lahore 740 (Barkat Ali v. The State) the application filed by Nasrullah, complainant, was accepted for re summoning of an eye witness, which was given up by the Special Public Prosecutor although the prosecution case was finally closed and completed. The summoning of the aforesaid witness was not to cause‑ any prejudice to the accused because he had not entered into their defence to bring the evidence. He is entitled to produce his defence evidence and would have the chance to cross‑examine the summoned witness. I have also examined the other aspect of question of prejudice allegedly being caused to the petitioner. I have found that the statements of the witnesses were already recorded when the learned DDA had given up, the aforesaid witness, so assertion of the learned counsel for the petitioner that the cross‑examination on the remaining witnesses was conducted with this presumption was found unfounded. Therefore, I have found no illegality having been committed by the learned trial Court while passing the impugned order. Accordingly, this criminal revision is dismissed. H.B.T./G‑82/L Revision dismissed.