2002 P Cr (PLP)

2. The petitioners .had moved an application under section 540 of the Cr.P.C. asking for re-summoning/recalling of a prosecution witness namely Dr. Asif Ali, Medical Officer, Rural Health Centre, Doltana, District Rawalpindi for re-examination.

3. It is the case of the petitioner that he had sustained injuries during the occurrence and was medically examined by the said doctor. Who had prepared the medico-legal report on the same day which has been attached as Annexure "C" with the petition. That even in the charge-sheet under section 173, Cr.P.C., the injury. statement/MLR of the petitioner was appended with the challan and the doctor was cited as a witness in respect thereof. However, when Dr. Asif Ali was examined as a prosecution witness on 9-4-2001, he omitted to mention about the injury statement in respect of the petitioner and about his examination and the M.L.R. prepared by him after examining the petitioner Sharafat Hussain. That when on 24-5-2001 the Investigating Officer Bashir Ahmad was examined as a prosecution witness (P.W.14), he stated nothing in this connection during his examination-in-chief. However, when cross -examined, he admitted having received Medico-legal Report of Sharafat Hussain with the challan.

4. For bringing this fact on record, the petitioner on 2-5-2001, therefore, applied for re-summoning of Dr.. Muhammad Asif, but this was refused. It was the view of the learned trial Court that Dr. Asif Mehmood was never cross-examined on the factum of injury to Sharafat and thus, they have availed the opportunity which should not be again provided. Because it would amount to filling up the lacunas of the defence. It was further observed that defence had the opportunity of producing Dr. Asif Mehmood as a defence witness for bringing on record the factum of the injury of the accused/petitioner Sharafat Hussain. The Court offered to call him as a defence witness if requested under, section 265-F(ii) of the Cr.P.C.

5. Section 540 of the Cr.P.C. reads as follows:-- "

540. Power to summon material witness or examine person resent.

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."

6. Section 540, Cr.P.C. consists of two parts. The first part gives a discretionary power to the Court, while the other part imposes an obligation on it, and the obligation is placed by saying that the Court shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

7. The object of this section is as much the prevention of the escape of the guilty person through inadvertence of the prosecution as well as the vindication of the innocence of the accused because of the carelessness or ignorance of any party.

8. In this particular case, nothing new had to be brought on record. The prosecution, whose duty it is to collect evidence and place it before the Court, had in the charge-sheet under section 173, Cr.P.C. appended the medico-legal report of the accused/petitioner reflecting the injury suffered by him. He was examined by the doctor, and nothing in this respect can now be added or taken away except that the medico-legal report of the petitioner has to be formally placed on record through the statement of Dr. Asif Mehmood who had either inadvertently or otherwise forgot to mention about it. If it was on account of inadvertence then this factum ought to be brought on record for giving the Court a true picture of the event and if it was suppressed even then the defence had the right to ask the Court for bringing it on record through the re -examination of the doctor.

9. When the prosecution is required to collect all facts and place it before the Court, it should not omit to bring this fact also before the Court. To say that the said doctor could be called as a defence witness, does not sound proper because he remains a prosecution witness and the medico-legal reports are appended with the charge-sheet. The prosecution witness retains his character as such and same is the case with a defence witness. ,.,in this case reliance may be placed on the following cases:-- (1) Jewan and 9 others v. The State 1980 PCr. LJ 570, (2) Pervez Ahmad v. Munir Ahmad and another 1998 SCMR 326, (3) Mst. Aamna Bibi v. Kashif-ur-Rehman and another 1995 PCr.LJ 730, (4) Muhammad Iqbal Khetana v. The State 1992 MLD 930, and (5) Muhammad Rauf Anwar v. The State and others 1992 PCr. LJ 729.

10. Under the circumstances, the petition is allowed and the order impugned is set aside with directions to the trial Court to recall Dr. Asif Mehmood for his re-examination in the interest of justice. N.H.Q./S-313/L Revision petition allowed.