1994 PLP 550 (SCMR)

‑‑‑‑S. 540‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Refusal to summon persons as Court witnesses‑‑ Validity‑‑‑Contention was that the evidence of the persons sought to be summoned as Court witnesses was essential to the just decision of the case‑‑ No infirmity or legal error in the well‑reasoned orders of the Courts below refusing to summon the said persons as Court witnesses could, however, be pointed out justifying interference by Supreme Court at such belated stage‑‑ Leave to appeal was refused in circumstances. Dr. A. Basit, Advocate Supreme Court instructed by Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner. Ch. Muhammad Anwar Ghuman, Advocate Supreme Court for Respondents. Date of hearing: 28th July, 1993. MUHAMMAD RAFIQ TARAR, J: ‑‑Muhammad Akram complainant in a murder case seeks leave to appeal from the order of a learned Single Judge of the Lahore High Court dated 11‑1‑1993 whereby his revision petition against the order dated 10‑12‑1992 of the Learned Additional Sessions Judge rejecting his application for summoning court witnesses, was dismissed.

2. V The complainant/petitioner moved an application under section 540 of the Cr.P.C. in the Court of the learned Additional Sessions Judge for summoning Naukar Hussain, Nasir Ali, Faqir Hussain, Ali Hussain, Pir Muhammad, Ghulam Hussain, Ghulam Muhammad and Illaqa Magistrate as Court witnesses. His case was that the police/investigating agency avoided to record the dying declaration of one of the deceased persons namely Muhammad Afzal when he was admitted in the Hospital and this job had to be performed by one Naukar Hussain (a P.W. who identified the dead body of Muhammad Afzal deceased at the time of post‑mortem examination). The dying declaration recorded by aforesaid Naukar Hussain was attested by Nasir Ali, Faqir Hussain, Ali Hussain and Pir Muhammad. An application was moved before the Illaqa Magistrate for recording the dying declaration who passed "appropriate orders" thereon. About Ghulam Hussain and Ghulam Muhammad aforementioned it was stated in the application that they were "parents of the deceased persons" who filed two writ petitions in the High Court, the record whereof according to the applicant, constituted "material part of the prosecution evidence".

3. The Courts below declined the prayer for summoning the aforesaid persons as Court witnesses on the ground that according to the investigating agency Muhammad Afzal deceased had never made any dying declaration; Naukar Hussain who allegedly recorded the dying declaration did not utter a word about it in his statement under section 161, Cr.P.C.; Muhammad Afzal remained in hospital for couple of days but no medical officer or any other competent person recorded any statement of aforesaid Muhammad Afzal. It was held that the complainant was trying to build up a new case at a stage when as many as 18 witnesses had been examined. The remaining witnesses were only the police officials.

4. Learned counsel for the petitioner contends that the evidence of aforementioned persons is essential to the just decision of the case. He was, however, unable to point out any infirmity or legal error in the orders of the Courts below justifying interference by this Court at this belated stage. The orders are well reasoned and call for no interference. The petition is dismissed. N.H.Q./M‑1875/S Leave refused.