1997 P Cr (PLP)

Ss. 540 & 439

Penal Code (XLV of 1860), S.302/34

Summoning of given up prosecution witnesses as Court-witnesses

Validity

Eye-witnesses who had been given up by the prosecution on the ground of having been won over were basically prosecution witnesses and prosecution in such a situation could not be forced to examine them

Rule of prudence required that such type of witnesses need not be examined as Court-witnesses on account of their credibility intrinsically having become doubtful

Keenness of the defence to examine such won-over witnesses had further made their testimony partisan and interested

Provisions of 5.540, Cr.P.C. should not be invoked in such-like cases lest it should introduce perversity in the system of criminal administration of justice

No patent or latent defect having been found in the order of Trial Court refusing to summon the said prosecution witnesses as Court- witnesses, it did not warrant interference in the revisional jurisdiction of High Court

Revision petition was dismissed in limine accordingly.-- [Witness]. PLD 1979 Lah. 691; 1987 PCr.LJ 244; 1989 PCr.LJ 1518 and 1989 PCr.LJ 2631 ref. Mian Abdul Qadoos for Petitioner. The petitioners are facing trial in a case registered under section 302/34, P.P.C. vide F.I.R. No.351 of 1994, dated 1-9-1994 for the murder of one Faqir Hussain son of Shah Muhammad. During the trial two eye-witnesses namely Muhammad Aslant and Shaukat Ali were given up by the prosecution at the written request of the complainant Mst. Ghulam Fatima that they have been won-over. The petitioners moved an application under section 540, Cr.P.C. in the Court below that the aforesaid given up witnesses be summoned and examined as prosecution witnesses. The learned trial Court dismissed the aforesaid application on 24-11-1996 whereupon the petitioners moved another application under section 540, Cr.P.C. for the summoning of those witnesses as Court-witnesses. That application was also dismissed by the learned trial Court vide order. dated 4-3-1997 which has been impugned in this revision petition on the ground that it is arbitrary and against all the fair canons of justice. Learned counsel for the petitioners has submitted that all the material evidence should be brought before the Court to meet the ends of justice. In the instant case, both the given up witnesses were admittedly eye-witnesses and as such their examination was essential to arrive at a correct decision. The mere fact that they were given up by the prosecution as having been won-over would have not pursuaded the learned trial Court to refuse their examination as Court-witnesses. In fact their examination would have provided an opportunity to both sides to cross-examine them thereby, helping truth to come to light. Finally, it was contended that the discretion vested in the Court under section 540, Cr.P.C. should be liberally exercised to promote the ends of justice. In support, reliance was placed on PLD 1979 Lah. 691, 1987 PCr.LJ 244 Lahore, 1989 PCr.LJ 1518 and 1989 PCr.LJ 2631 Lahore.

2. I have considered the foregoing facts and find that the complainant in this case is the mother of the deceased and at her request, the two eye-witnesses named above were given up on the ground that they had been won-over. In the first instance, the accused wanted to examine them as prosecution witnesses, for which they had moved an application under section 540, Cr.P.C. which was dismissed on 24-1-1996. Thereafter, the present application was moved to examine those witnesses as Court-witnesses. However, that application was also dismissed, hence this revision petition. .

3. Admittedly, the given up P.Ws. were basically prosecution witnesses. They were given up having been won-over. In such a situation, the prosecution could not be forced to examine them. The rule of prudence would require that such type of witnesses need not be examined as Court-witnesses because their credibility intrinsically become doubtful. The keenness of the defence to examine such won-over witnesses further makes their testimony partisan and interested. Hence the provisions contained in section 540, Cr.P.C. should not be invoked in such like cases lest it may introduce perversity in the system of criminal administration of justice.

4. In view of my above discussion, do not find any patent or latent defect with impugned order, so as to call for interference in the revisional jurisdiction of this Court. The revision petition being meritless is dismissed in limine. N.H.Q./A-135/L Revision petition dismissed.