2012 PLP 550 (MLD)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

By means of instant appeal filed under section 48 of the Control of Narcotic Substances Act, 1997, the appellants have called in question the vires of impugned order dated 29-11-2010, passed by learned Judge Special Court CNS, Faisalabad; whereby application filed by the appellants under section 540, Cr.P.C. seeking summoning of certain persons as court witnesses, was declined.

2. Brief facts of the case, necessary for disposal of the appeal in hand, are that Kashif alias Shahid alias Chachi, Malik Yaseen and Muhammad Azam, appellants, were booked in case F.I.R. No.33, offence under section 9(c)/15 of the Control of Narcotic Substances Act, 1997, registered on 30-12-2009. After adopting all codal formalities, the report under section 173, Cr.P.C. was submitted and the learned trial court recorded evidence of the prosecution and the case was adjourned for recording the statements of the accused/appellants under section 342, Cr.P.C. when an application under section 540, Cr.P.C. was moved on their behalf seeking summoning of (i) Dr. Javed Iqbal, Medical Officer, DHQ Hospital, Faisalabad, (ii) SSP Motorway M-2 North, (iii) Abdul Rehman Patrolling Officer, (iv) Muhammad Baqir Shah Patrolling Officer, (v) Liaquat Driver/Assistant Patrolling Officer, (vi) Mobushar Hussain Senior Patrolling Officer, (vii) S.H.O., Police Station Naulakha, Lahore, (viii) Incharge Ward AXE Department, (ix) Editor Daily Express and (x) Editor Daily Jang, as court witnesses. The learned trial court in terms of order dated 29-11-2010, dismissed the application, however, summoned Dr. Javed Khalid, Medical Officer, DHQ Hospital, Faisalabad along with Incharge Ward. The order dated 29-11-2010, has been assailed by the appellants by means of instant appeal.

3. The learned counsel for the appellants submits that the impugned order dated 29-11-2010; whereby request of the appellants qua summoning of certain persons as court witnesses was declined, is not sustainable in the eyes of law, which has been passed in utter disregard of the settled law on the subject and pronouncements of the superior courts of the country. It is also argued that the learned Judge, Special Court CNS, Faisalabad, fell in error while dismissing the application nevertheless it has been the prosecution case that the accused/appellants were arrested at Salam Interchange in presence of Motorway Police Officials. Similarly, learned counsel next submits that on the application under sections 22-A, 22-B, Cr.P.C. filed by Mst. Zareena Bibi, mother of appellants Nos.1 and 2, S.H.O., Police Station Naulakha, Lahore, while filing reply/police report, admitted that he had received information on wireless that ANF Faisalabad, had conducted raid upon the house of the appellants. In this peculiar scenario, learned counsel urges, declining the request of the appellants for summoning these persons as court witnesses, is against the law and the learned trial court failed to exercise its judicial powers in accordance with norms of criminal justice. Learned counsel next argues that fundamental principle of administration of justice is that the courts are bound to apply the law correctly and to justly administer the rights and remedies of citizens. It is next argued on behalf of the appellants that as per section 540, Cr.P.C. the court has been vested with unlimited powers to summon the persons as witnesses, necessary to arrive at just conclusion, as is in the case in hand. In the end prayer for setting aside the impugned order dated 29-11-2010 has been made.

4. As against above, learned Special Prosecutor ANF has opposed the contentions advanced by learned counsel for the appellants with the averments that nevertheless it is the duty of the court to summon persons as witnesses to arrive at just conclusion as enshrined in section 540, Cr.P.C, however, firstly provisions of section supra are not mandatory in nature and secondly nobody can be given unconditional right to get summon the witness of his own choice as court witness. It is next argued that if the appellants are very much interested in the evidence of the witnesses named in the application, they may produce them as defence witnesses, as has been rightly observed by the learned trial court. It is next contended that the impugned order dated 29-11-2010 of the learned trial court has been passed keeping in view the law on the subject and no exception can be made to the same.

5. We have given our anxious consideration to the arguments advanced by learned counsel for the appellants as well as learned Special Prosecutor ANF and have gone through the record with their assistance.

6. There is no denial to the fact that solitary purpose of judicial proceedings in criminal cases is to find, out the truth and to arrive at a correct conclusion and to see that no innocent person is punished. Section 540, Cr.P.C. deals with power of the court qua summoning of witnesses. It would be advantageous to reproduce the section supra, which reads as under:- "

540. Power to summon material witness or examine persons 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 recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case." Admittedly when court is satisfied that evidence of the witnesses produced by the prosecution is sufficient to arrive at just conclusion, there is no compulsion for summoning of any other witness. Perusal of impugned order dated 29-11-2010, passed by the learned trial court reflects that in addition to evidence already recorded, Dr. Javaid Khalid Mehmood, Medical Officer, DHQ Hospital, Faisalabad and Incharge Ward were the necessary witnesses to be recorded. Prima facie, the other witnesses prayed for to be summoned in the application rejected through the impugned order under challenge i.e. (i) SSP Motorway M-2 North, (ii) Abdul Rehman Patrolling Officer, (iii) Muhammad Baqir Shah Patrolling Officer, (iv) Liaquat Driver/Assistant Patrolling Officer, (v) Mobushar Hussain Senior Patrolling Officer, (vi) SHO, Police Station Naulakha, Lahort, (vii) Incharge Ward AXE Department, (viii) Editor Daily Express and (ix) Editor Daily Jang, would be examined in defence. If the appellants are interested in their evidence then as has been rightly observed by the learned trial court, they are at liberty to ask the court seeking permission to produce them as defence witnesses. Having seen the impugned order passed by the learned trial court from every angle, on the touchstone of relevant law on the subject, we see no infirmity in the same. The instant appeal is devoid of legal justification, which is accordingly dismissed.

7. Before parting with this judgment we may observe here that the appellants would be at liberty to avail the opportunity of producing the aforesaid persons in defence to supplement defence version, if so advised. N.H.Q./K-5/L Appeal dismissed.