2007 P Cr (PLP)

TARIQ SHAMIM, J.

Through this criminal revision, the order passed by the learned Additional Sessions Judge, Kasur on 26-7-2006 summoning Mistri Muhammad Ishaq and Mst. Mukhtaran Bibi as Court-witness under section 540 of the Code of Criminal Procedure in a case under sections 302, 324, 148, 149, P.P.C. pending against respondents Nos.2 to 9.

2. The brief facts of the case are that the petitioner lodged F.I.R. No.197 of 2004 dated 26-6-2004 for offences under sections 302, 148, 149, P.P.C. at Police Station Khudian Tehsil and District Kasur stating therein that his son Shaukat Ali who was suspected by the accused of theft of a buffalo of a relative of Muhammad Aslam alias Bodi accused, was shot at by Muhammad Tahir with a rifle resulting in his death in the presence of the complainant/petitioner and others while the other accused indulged in indiscriminate firing. Since the petitioner was not satisfied with the investigation conducted by the police, he preferred a private complaint against the accused/respondents Nos.2 to 9 on the same facts as narrated by him in F.I.R. After the accused had been summoned and charge had not been framed, prosecution evidence was recorded and after closing the same, statements of the accused were recorded under section 342, Cr.P.C. However, the defence subsequently, filed an application under section 540, Cr.P.C. for summoning Mistri Muhammad Ishaq son of Rehmat Ali and Mst. Mukhtaran Bibi widow of Muhammad Aslam alias Bodi (since a proclaimed offender) as Court-witnesses, which was contested by the petitioner on the ground that the said witnesses could be produced as defence witnesses but the trial Court accepted the application. Hence, this petition.

3. The learned counsel for the petitioner contended that in accepting the application of the defence the learned Court had committed material irregularity and illegality and had provided an opportunity to the defence to fill up lacuna which had prejudiced the prosecution case and that the order was bad in law, arbitrary, against the facts and void and as such liable to be set aside.

4. The learned counsel representing respondents Nos.2 to 9 has controverted the stand taken by the petitioner.

5. I have heard the learned counsel and perused the record with their able assistance.

6. Munawar Hussain, Inspector Incharge Investigation Cell, while appearing as C.W.4 before the learned trial Court in his testimony stated that Mistri Muhammad Ishaq had his shop at Khilji Pull near the place of occurrence and claimed to have eye-witnessed the incident resulting in the murder of the deceased Shaukat Ali. His statement was recorded by the Investigating Officer during the investigation who further stated that Mst. Mukhtaran Bibi wife of accused Aslam alias Bodi also appeared before him on his first visit to the spot and supported the plea taken by her accused husband before the police. It, therefore, follows that Mistri Muhammad Ishaq and Mst. Mukhtaran Bibi who were examined by the Investigating Officer during the course of investigation of the challan case are acquainted with the circumstances of the occurrence. Their evidence is thus, essential to a just decision of the case in the background of the investigation. However, a distinction has to be drawn here with respect to their being summoned as Court-witnesses or defence witnesses keeping in view the testimony they are likely to furnish before the trial Court. Mst. Mukhtaran Bibi is not an eye-witness of the occurrence and while appearing before the Investigating Officer had advanced the plea taken by Aslam alias Bodi accused. In that background the witness is essentially a defence witness and her testimony would prejudice the prosecution case and put the accused in an advantageous position as the accused would have an opportunity to cross-examine their own witness. It cannot be denied that section 540 of the Code of Criminal Procedure in the second part provides mandatory authority to the trial Court as the word "shall" has been used to emphasise its import and binds the Court to examine any witness if his evidence is essential for a just decision of the case. However, in the instant case, for reasons stated above summoning of Mst. Mukhtaran Bibi as a Court-witness is neither expedient nor in the fitness of things. She can be summoned by the learned trial Court as a defence witness to which, even otherwise, the learned counsel for the petitioner has no objection.

7. In so far as Mistri Muhammad Ishaq is concerned he was originally joined in the investigation by the police as a person acquainted with, the circumstances of the crime on account of proximity of his shop from the place of occurrence. This witness cannot be dubbed as a nominee of the accused-respondents and therefore, summoning him as a Court-witness is neither against law nor prejudicial to the case of the complainant in any manner.

8. For what has been discussed above, I partly accept this revision petition, set aside the impugned order to the extent of summoning of Mst. Mukhtaran Bibi as a Court-witness while maintaining the order to the extent of summoning of Mistri Muhammad Ishaq as a Court witness.

9. The petition stands disposed of in the above terms. N.H.Q./M-143/L Order accordingly.