1997 P Cr (PLP)

PLD 1979 Lah. 691 ref. (b) Criminal Procedure Code (V of 1898)

S. 540

Summoning of material witness

Reference of statement of a witness

At the time of the dismissal of an application under S.540, Cr.P.C. the statement of any witness cannot be referred to which obviously would prejudice the merits of the case. Rahat Masood Tipu for Petitioner. Altaf Ibrahim Qureshi for the State. On the basis of the registration of F.I.R. No.280/93 at Police Station Sadar, Chichawatni, District Sahiwal, Jafar petitioner-accused alongwith his co -accused is facing the trial under section 302/324/34, P.P.C. before the trial Court. During the trial the eye-witnesses namely Muhammad Anwar complainant and Muhammad Akram have been given up by the prosecution as having been won over. All the accused of the case filed the application to summon both the aforesaid eye-witnesses under section 540, Cr.P.C. as Court witnesses in the interest of justice so that the true facts emerged. The application was resisted by the prosecution. The trial Court referred to the statement of P.W.4 in cross-examination wherein a suggestion was put on behalf of the accused and was denied by P.W.4 that Muhammad Anwar complainant and Muhammad Akram (P.Ws.) were not present at the time of occurrence and expressed that the said suggestion was enough to make out that the aforesaid eye-witnesses Muhammad Anwar and Muhammad Akram as such were not essentially to be examined to reach at the right conclusion. Feeling aggrieved the accused persons have filed this revision petition.

2. I have heard the learned counsel for the parties and gone through the record before me. Relying on the ruling published as Mahboob Khan v. The State PLD 1979 Lah. 691 learned counsel for the petitioner-accused has correctly expressed that declining the application under section 540, Cr.P.C. in the circumstances has semblance of inclination towards prosecution and that interest of justice demanded that they be examined as Court-witnesses. The most important aspect of the matter, which has stolen the eminence is that Muhammad Anwar given up P.W. is the complainant of the case. He as well as Muhammad Akram given up P.W. are the eye-witnesses of the case. They have been given up by the prosecution as having been won over. If they are produced as Court witnesses the trial Court shall be in a better position to reach at the right conclusion especially when both the parties shall have the legal right to cross- examine them and through the weapon of cross-examination their veracity can well be analysed and judged. The dismissal of the application filed by the petitioner by the trial Court is devoid of the judicial considerations. At the time of the dismissal of the application under section 540, Cr.P.C. the statement of any witness cannot be referred to which obviously would prejudice the merits of the case. Hence I brushed aside the stand taken by the learned counsel for the prosecution that the application under section 540, Cr.P.C. has correctly been dismissed.

3. For what has been said above I accept this revision petition, accept the application filed by the accused-petitioner under section 540, Cr.P.C. and direct the trial Court to examine Muhammad Anwar complainant and Muhammad Akram (P.Ws.) as Court-witnesses already given up by, the prosecution as having been won over by the accused. N.H.Q./J-105/L Petition accepted.