2016 PLP 129 (YLRN)

S.540

Penal Code (XLV of 1860), S.302

Qatl-i-Amd

Material witness, summoning of

Scope

Application filed by accused for summoning a material witness as Court witness was dismissed by Trial Court

Validity

Record showed that during investigation, the witness concerned had appeared before investigating officer and narrated certain facts towards the occurrence

Such witness as well as his statement had become relevant and important for just decision of the case

Trial Court should have given proper consideration to such fact and in the light of S.540 Cr.P.C., adopted required mode for examination of such witness

Order passed by Trial Court was not justified, hence set aside and witness in question was allowed to be summoned and his evidence be recorded not as Court witness rather as defence witness

Revision was allowed in circumstances. [[Para. 3 of the judgment] Hasan Mahmood Khan Tareen, D.P.G. for the State. JUDGMENT MUHAMMAD TARIQ ABBASI, J.

This criminal revision is directed against order dated 27.9.2011, passed by the learned Addl. Sessions Judge, Vehari, whereby an application moved by the petitioner for summoning and recording Allah Rakha as a court witness has been refused.

2. The facts are that during the trial of a criminal case registered vide FIR No.430 dated 7.10.2010 under sections 302, 324, 148, 149, P.P.C. at Police Station, Luddan, District Vehari, the present petitioner, being an accused moved an application, whereby he sought summoning and recording of Allah Rakha, a Taxi Driver as a court witness, on the ground that during the investigation of the case, the Investigating Officer had recorded statement of the above-named person on 7.11.2010, but with mala fide his name was not included in the calendar of the witnesses, despite the fact that he was an important witness, hence his statement for reaching at a just conclusion was very necessary. The learned Trial Court through the impugned order had held that as statement of the above-named had already been brought on the record as Ex.DD, hence not necessary for just decision of the case and as such had dismissed the petition.

3. Consequently, the instant revision petition has been preferred with the contention that the impugned order being a patent illegality is not sustainable in the eye of law; that when admittedly the above-named during investigation had appeared before the Investigating Officer and his statement was also recorded, he was a very relevant and important witness but erroneously the learned Trial Court had observed otherwise.

4. The learned DPG as well as learned counsel for the complainant (respondent No.2) has vehemently opposed the petition.

5. Arguments heard and record perused. "Power to summon material witness or examine persons present

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."

7. In the matter in hand, when it has been brought on the record that during the investigation, the above-named had appeared before the Investigating Officer, and narrated certain facts towards the occurrence, then surely he as well as his statement become relevant and important for just decision of the case. Therefore, the learned Trial Court should have given proper consideration to the said fact and in the light of the abovementioned provision, adopted the required mode for his examination.

8. Resultantly, the impugned order, could not be termed as justified, hence set aside. Consequently, summoning and recording of the above-named is allowed but not as a court witness rather as a defence witness. MH/M-25/L Revision allowed.