2017 PLP 243 (YLRN)

ERUM SAJAD GULL, J.

The captioned Constitutional Petition has been preferred on behalf of the petitioner to assail the legality of impugned order dated 26.2.2015 through which the learned Additional District Judge Faisalabad dismissed petitioner's criminal revision against the impugned order dated 1.11.2014, whereby, the Judicial Magistrate Section-30, Samundri, dismissed petitioner's application moved in terms of section 540, Cr.P.C., soliciting permission for summoning witnesses and to exhibit certain documents.

2. Brief facts of the case are that the petitioner lodged FIR No. 383 dated 18.06.2011, under sections 420, 467 and 471, P.P.C., at Police Station City Samundari, District Faisalabad, stating that on 06-01-2000 accused Bilqees Bibi, Syeda Jillani (respondents Nos. 5 and 6) and their deceased sister namely Jameela Begum were offered plot No. 80 by CDA Islamabad in the Orchard Scheme Murree Road Islamabad in lieu of their previous allotment. It was further submitted that Mst. Jameela Begum deceased mother of the accused Zafar Iqbal, respondent No.8, died on 05-05-1999 before the plot was offered. But the accused Zafar Iqbal respondent No.8, in connivance with his co-accused real aunts respondents Nos. 5 and 6 did not disclose the factum of demise of Mst. Jamila Begum so that they were able to maneuver the allotment without any legal hurdles. Respondent No. 8 Zafar Iqbal then prepared a forged General Power of Attorney of his mother Mst. Jameela Begum, respondents Nos.5 and 6 in his favour even though his mother was not alive at that time. And from the aforesaid plot, a portion was sold to the petitioner fraudulently against consideration of huge amount, but the plot could not be transferred in favour of the petitioner causing him serious and substantial financial loss.

3. The learned counsel for the petitioner has argued before this Court only to the extent of placing on record some important documents germane for just and fair adjudication of the lis. The counsel argued that the trial court erred in law by not allowing the petitioner to exhibit the important documents, inasmuch as, the whole case of the petitioner revolves around the judicial determination of these crucial documents. Once these documents are allowed to be placed on record, the fraud committed by the respondents will be proved, and if these documents are not permitted to be exhibited, then the petitioner will not be able to prove the elementary issue of serious fraud committed by the (sic) accused/respondents are very influential, therefore, the Police refused to place these crucial and vital documents on record. The learned counsel further argued that all these documents solicited to be exhibited are duly mentioned in the FIR and in the statements of the prosecution witnesses, therefore, the court could not have refused to exhibit per se admissible documents. The learned counsel elaborated that at the time of recording the evidence, the questioned documents were not allowed to be exhibited by the trial court on the ground that they were the photo copies, and at that time certified copies were not available, which have now become available, but the trial court arbitrarily and summarily refused to allow the petitioner to exhibit the said documents causing irreparable loss and grave miscarriage of justice. Hence, it was prayed that this petition be accepted with the consequence that the list of documents annexed with the writ petition and duly mentioned in the FIR be allowed to be exhibited. The counsel relied upon (PLD 2007 Karachi 194) Begum Salma Ahmed v. The State through Chairman, (2012 PCr.LJ 73 Lahore) Rizwan Ahmad and 5 others v. The State and another (2002 SCMR 468) Abdul Hamid Mian v. Muhammad Nawaz Kasuri, (2004 MLD 1040) Muhammad Ishaq v. State and 6 others (2009 YLR 1449 Karachi) Chaman Aslam v. Muhammad Aurangzeb and another (2001 SCMR 308) The State v. Muhammad Yaqoob and others (2001 YLR 746 Lahore) Mst. Shama Akram v. Muhammad Latif @ Teefa @ Liqat and 7 others and (PLD 1994 Lahore 93) Nusrat @ Nusree v. The State.

4. The learned counsel for the respondents and the learned Additional Advocate General argued that the impugned orders of both the courts below have legally and concurrently declined petitioner's prayer with lawful authority and jurisdiction, therefore, this writ petition being misconceived, merits dismissal. It was also contended that the petitioner has no case, inasmuch as, he malafidely filed the application for summoning of witnesses and placing some documents on record just to fill in the lacunas in the case. And if this writ petition is allowed, then this litigation will have no end. To substantiate his contentions, learned counsel for the respondents relied upon (2014 PCrLJ 108 Shariat Court AJ& K) Abraiz Babu and 2 others v. The State and another (2010 PCr.LJ 1051 Lahore) Noor Muhammad v. Amin and others (PLD 2001 Supreme Court 384) Dildar v. The State through Pakistan Narcotics Control Board Quetta.

5. The learned counsel have been heard at length and with their able assistance, the record before this Court was also perused. The case laws relied upon by the counsel for the respondents emanating from different facts and circumstances are not applicable to the case in hand, therefore, the reliance of the learned counsel on the aforesaid judgments is misconceived. Both the courts below dismissed the application of the petitioner primarily on the ground that if the said documents were allowed to be exhibited in the statement of the Prosecutor, the right of the accused would be prejudiced. On perusal of the FIR and the statements of the prosecution witnesses it is evident that detail of the said documents is duly and categorically mentioned, hence the accused/respondents will not be taken by surprise if the said documents are allowed to be exhibited. Admittedly the evidence has not been closed yet and of course the defence can rebut these documents by producing evidence. Even otherwise the court has the power not to rely on the said documents if they are not convincing.

6. The Honourable Supreme Court in the case reported as PLD 2013 Supreme Court 160 Nawabzada Shah Zain Bugti and others v. The State, held that the trial court should not summarily dismiss an application under section 540, Cr.P.C. merely on the grounds that it was filed just to fill lacuna of the case or that it was a belated application. The trial court was under an obligation to scrutinize the material before it and then come to a decision whether the said material placed before the trial court was essential for a just and proper decision of the case or not.

7. It is the duty of the trial court while hearing a case, to dig out the truth of the case and for that the trial court should carefully scrutinize all evidence before it and even call for the evidence that is crucial for the just decision of a case. Under section 540 Cr.P.C. trial court has been given wide discretionary powers to summon all relevant evidence at any stage of the trial, necessary to decide the controversy in question. In the first part of the section 540, Cr.P.C. the court may in its discretion summon for evidence but under the second part, it is compulsory upon the courts to summon the evidence essential for the just decision of the case.

8. Apparently both the courts below have failed to exercise their powers vested in them under the law thereby causing irreparable loss and miscarriage of justice, therefore, case for interference and invalidation of both the impugned orders is made out. While accepting this petition, both impugned orders of the Judicial Magistrate Samundari dated 1.11.2014 and that of the learned Additional District Judge Faisalabad dated 26.6.2015 are set aside with direction to the trial court to decide the application of the petitioner afresh, after scrutinizing/evaluating all the documents which the petitioner wants to exhibit, and thereafter to pass a speaking order as to whether documents intended to be exhibited are necessary for the just and proper decision of the case or not. If the documents desired to be exhibited by the petitioner are even remotely found necessary for a just conclusion of the trial, the said documents should be allowed to be exhibited. Of course, the respondents would also be allowed to further cross-examine the witnesses and to raise any/all objections on the admissibility of the said evidence and to produce defense evidence in rebuttal if they so desire. Petition accepted. Case remanded to the Trial Court. MH/S-120/L Case remanded.