1997 P Cr (PLP)

Maulvi M. Sultan Alam for Petitioner. Bashir Ahmad (by Javed Ahmad Chauhan) for the State. Dates of hearing:. 6th and 7th May, 1996. The petitioner through this petition filed under section 439, Cr.P.C. calls in question the order, dated 6-7-1995 passed by the learned Additional Sessions Judge, Vehari whereby the application filed under section 540, Cr.P.C. was dismissed.

2. The necessary facts giving rise to the instant petition are that a case F.I.R. No.275/92, dated 1-10-1992 under section 302/34, P.P.C. was registered with Police Station Luddan District Vehari at the instance of Muhammad Yousaf for committing the murder of Muhammad Younus, against the petitioner herein, Machhia Niaz, Munir and Mazhar having been armed with .12 bore gun. The investigation was thoroughly conducted and all the aforesaid persons were found involved in the instant crime and they were challaned to face the trial. The trial had commenced and the evidence was being recorded when the application dated 18-6-1995 under section 540, Cr.P.C. was moved by the petitioner stating therein that Rustam Ali S.H.O. had stated on 18-5-1995 during the trial to the effect that .12 bore gun bearing No. 1919 as licensed in the name of Muhammad Younis, deceased, and the same was not deposited in the police station after the death of the licensee. The said gun was shown to be recovered from the possession of the petitioner. The aforesaid number of the gun was erased and planted the same to involve the petitioner in a false case. The prayer was made seeking the order to send the recovered gun to the Forensic Science Laboratory to trace the number of the gun so that the petitioner may prove his innocence in the trial because the case of the petitioner from the inception of it was that the police had taken into possession the gun from the car of the deceased and was planted upon the petitioner.

3. I have heard the learned counsel for the petitioner as well as the learned counsel for the State assisted by the learned counsel for the complainant.

4. The averment made in the application, dated 18-6-1995 is that the alleged .12 bore gun recovery of which has been shown to be made from the petitioner, number of which was erased, belong to Muhammad Younis deceased and it was in broken condition and the petitioner has been involved in the case on account of false recovery. The minute examination of the record put before me makes it abundantly clear that the alleged gun was in broken condition and number of it was also erased and could not be read. The application was made under section 540, Cr.P.C. which is reproduced below for ready reference:-- "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 such person if his evidence appears to it essential to the just decision of the case. "

5. A bare reading of the afore-referred section makes it sufficiently clear that the trial Court is quite competent, at any stage of the trial, to summon any person as a witness if his testimony becomes essential to meet the ends of justice. The report of the Forensic Science Laboratory is also indicative of the fact that the gun was in broken condition and the number was also erased. The defence is at liberty, through the cross-examination or otherwise to bring sufficient material on the file to show that the aforesaid gun was actually belonging to the deceased and the recovery of which was fabricated, to make the point for the consideration of Court to summon the officials of the Forensic Science Laboratory and the Court may only summon the witnesses, the evidence of whom, becomes very essential to meet the ends of justice because primary function of the Court, apart from the technicalities is to arrive at just conclusion strictly in accordance with law. It is obligatory for the trial Court to see that the accused is being given full opportunity of a fair trial. The Forensic Science Laboratory has already given its report. The learned counsel for the petitioner has relied upon Muhammad Rauf Anwar v. The State 1992 PCr.LJ 729 in support of his contentions, which is absolutely distinguishable to the facts and the circumstances of the case. I without going into the intricacies of law and the merits of the c9se so that it may not prejudice the case of either party, hold that the report of the Forensic Science Laboratory is already on the file and no such material has been brought before me to hold that the aforesaid gun again be sent to the Forensic Science Laboratory .to trace out its number as the number of the allegedly recovered gun has already been reported to have erasen. I do not seen any merit in this revision petition so the same is dismissed accordingly. N.H.Q./M-185/L Petition dismissed.