2002 PLP 1043 (YLR)

Naveed Anwar Naveed for the Complainant. Muhammad Jehangir Wahla, A.A.‑G. with Ch. Muhammad Azam for the State. Facts of the case are that on the night of 9‑9‑1999 three accused persons, who were named in the F.I.R. alongwith two unknown persons criminally trespassed into the house of the complainant, committed the murder of his wife and also caused injuries on the person of the complainant and his son, thereafter, the challan was submitted against the accused after their arrest and now the trial is in progress. Rana Shaukat Hayat, D.S.P and Muhammad Afzal, Inspector Range Crime also investigated this case. They were given up by the prosecution as having been won over, thereafter, learned counsel for the accused had submitted an application under section 540, Cr.P.C. far summoning those witnesses as C.W but the trial Court through the impugned judgment dated 12‑4‑2002 dismissed the application of the accused.

2. Learned counsel for the petitioner submits that both the above mentioned police officials were the prosecution witnesses, that the trial Court without assigning any cogent reasons has dismissed the application of the petitioner, that accused were found innocent in the instant case, that trial Court was legally bound to summon them as C.W. in order to reach at a just conclusion. He has relied upon 2002 P.Cr.LJ 78 and 614, 2001 P.Cr.L.J 1046 and 2001 SCMR 308.

3. On the other hand, learned counsel for the complainant submits that petitioner can summon these two witnesses in his defence there is no need to summon them as C.W. He further submits that investigation in this case was conducted by Rana Shaukat Hayat. D.S.P from 25‑3‑2000 to 2‑8‑2000, later on, investigation was conducted by Muhammad Afzal, Inspector Range Crime from 4‑8‑2000 to 18‑8‑2000, that one of the accused is foot Constable and the said two police officials were given up by the prosecution as having been won over, although their names find mention in the calander of witnesses, that these two police officials in order to save F.C had connived with the accused party and wrongly declared them as innocent in this case. He has relied upon 1993 MLD 1401, 1997 PCr.LJ 1727, 1994 PLR 1004, 1997 MLD 1571 and 1995 SCMR 821.

4. Learned A.A.G and learned State counsel support the contentions of learned counsel for the complainant.

5. I have heard learned counsel for the parties. It has not been denied by the complainant side that Rana Shaukat Hayat, D.S.P, Range Crime had investigated this case from 25‑3‑2000 to 2‑8‑2000 on the order of D.I.‑G. Gujranwala, thereafter, the investigation was conducted by Muhammad Afzal, Inspector, Range Crime from 4‑8‑2000 to 18‑8‑2000, he declared the accused persons innocent in this case and the D.S.P concurred with the findings of Muhammad Afzal Inspector. These two witnesses were mentioned in the calander of witnesses. It is the duty of the Court to bring on record all the evidence either it goes in favour of the accused or against them and the same is the position on the side of the complainant party.

6. I have also gone through section 540, Cr.P.C. which is reproduced below:‑ "

540. Power to summon material witness or examine person present.‑‑‑Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness; or re‑call and re examine any person already examined; and the Court shall summon and examine or re‑call and re‑examine any such person if his evidence appears to it essential to the just decision of the case."

7. After hearing the learned counsel for the parties and going through the above said section, I am of the considered opinion that impugned order dated 12‑4‑2002 passed by the learned trial Court is illegal, unjustified and against the record and the same is set aside. He will summon both Rana Shaukat, Hayat D.S.P and Muhammad Afzal, Inspector, Range Crime, as Court‑witnesses in this case for the just decision of the case: With these observations, this revision petition stands disposed of. H.B.T./A‑485/L Order accordingly.