1997 PLP 2978 (MLD)

Ibad‑ur‑Rehman Lodhi for Petitioner. Sh. Zamir Hussain for Respondents. Raja Saeed Akram, A.A.‑G. for the State. Date of hearing: 13th May, 1997. This Constitutional Petition was instituted to challenge the order dated 9‑7‑1996 passed by the learned Sessions Judge, Jhelum, whereby he accepted the revision petition against the order dated 2‑6‑1996 passed by the Magistrate Section 30, Jhelum.

2. The brief facts are that a case under section 324/34, P.RC. was registered on the report of Munawar Hussain against the petitioner for causing fire‑arm injuries to Allah Ditta. After the close of the prosecution evidence, a petition under. section 540, Cr.P.C. was moved by the complainant before the trial Court that Dr. Syed Ali Naqvi, a surgeon of Pakistan Institute of Medical Sciences, Islamabad, be summoned as a Court‑witness, as he had performed an operation upon the injured person and had amputated his one leg as a consequence of the injuries suffered by the aforesaid Allah Ditta during the occurrence.

3. The petition was opposed by the present petitioner on the ground that the name of the surgeon was not given in the list of witnesses; that the evidence of the prosecution has since been concluded and re‑opening of the case would cause prejudice to the defence; and that the examination of the doctor would give premium to the prosecution for its negligence and would tantamount to fill in the lacuna in the prosecution case.

4. The learned trial Magistrate rejected the application whereas the learned Sessions Judge allowed the application vide the impugned order.

5. Learned counsel for respondent No.3/complainant and the State have supported the impugned order on the ground that it was passed to promote the ends of justice that the evidence of Dr. Syed Ali Naqvi was essential in order to determine the nature of the offence committed by the accused while assaulting him; that it would not be an unnecessary burden on the accused side but would clearly define the offence committed by him qua the victim; that the mere fact that the name of the doctor was not given in the list of witnesses would not debar an aggrieved party to move the Court at any stage for seeking justice in accordance with law.

6. I have considered the above submissions. It is true that in the instant case, though the Investigating Agency has acted with usual lethargy in omitting the name of one of the important prosecution witnesses, but perusal of the police record shows that his name was mentioned in the supplementary Challan as a witness but the same was never placed before the Court. In such a situation, the omission on the part of the prosecuting Agency was not so crucial that it may deprive the complainant to bring the statement of the surgeon on record by invoking the provisions contained in section 540, Cr.P.C. Some case‑law was produced from both sides in support of their submissions, but the facts remains that each case has to be decided on its own merits. It is well‑understood that in criminal cases, no principle of universal application can be made out so as to be applicable to all the situations. Each case has to be looked into on its own facts.

7. Looking at the facts of the case in hand with that angle, it would be a dictate of conscience that the proper evidence should be before the Court to decide the matter conclusively in order to satisfy the ends of justice. The provisions contained in section 540, Cr.P.C. in examining, re‑calling or summoning any witness are wide enough to give free hand to a Court of law to see that the justice does not slip out of hands or be defeated only on the technicalities of law. In the instant case, Dr. Syed Ali Naqvi had performed the operation whereby he had to amputate one of the legs of the victim which was injured due to the firing of the petitioner during the occurrence. As such, the examination of the aforesaid doctor was very essential particularly when according to the statement of the Medical Officer while appearing at the trial supported by the documents prepared by him that the victim was referred to the local surgeon, who while recording his note had allowed shifting of patient at his request to the Islamabad Hospital Complex for further treatment. In such a situation, there is an immutable chain closely linking Dr. Syed Ali Naqvi with the handling of the case of victim when the later was taken to him for treatment. Hence there is not an iota of doubt that the evidence of such surgeon is not only important but extremely essential to determine the nature of the injury suffered by the victim and its relation with the offence attributed to the accused. It is the primary duty of the Court to find out the real nature of injury and offence in order to do justice between the parties. The summoning of such a witness would never tantamount to any undue premium either to the prosecution or to the complainant side; but would definitely help in arriving at correct decision in the case. The witness being an expert in the field of surgery, and a disinterested person would be in a better position to help in securing the ends of justice. The learned Sessions Judge while setting aside the order of the learned trial Magistrate and by allowing the revision petition has exercised an authority and a discretion vested in him under section 540, Cr.P.C. in order to promote the ends of justice and for securing the true decision in the case. The discretion exercised by the learned Sessions Judge does not suffer from arbitrariness or illegality. The writ petition has, therefore, no merit and the same is dismissed. N.H.Q./M‑331/L???????????????????????????????????????????????????????????????????????????????? Petition dismissed.