2008 P Cr (PLP)

RANA ZAHID MAHMOOD, J.

Mst. Munawar Sultana filed an application under section 540, Cr.P.C. before the learned trial Court/Additional Sessions Judge, Chiniot, for summoning Pappu alias Kamaniwala and Tahir Addawala in a murder trial pending before the learned trial Court as witnesses of last seen of the deceased in the company of the accused persons including Sajid, a son of the deceased, as allegation against the son is that he murdered his own father to grab property. On the application of the petitioner to Inspector-General of Police the matter was probed into and the allegation was found correct. The learned Additional Sessions Judge, dismissed the application under section 540, Cr.P.C. vide impugned order, hence this revision petition to this Court.

2. Learned counsel for the petitioner has submitted that the application filed by the petitioner, who is sister of the deceased, was based upon the testimony of a Court witness, namely, Yousaf Kharral, a retired Superintendent of Police, Range Crimes, who had appeared before the learned trial Court and had stated that the last seen evidence was also available in this case. During investigation it was found that abovesaid two persons, namely, Pappu Kamaniwala and Tahir Addawala were available and this fact was also recorded by him in the daily diary, dated 25-8-2003. He submitted that since this fact had come on record, therefore, the petitioner filed application under section 540, Cr.P.C. to the learned trial Judge but he dismissed the same on flimsy ground that their names were not mentioned in the calendar neither their statements were recorded by police under section 161, Cr.P.C. therefore, application was without merit. Learned counsel submitted that it was the satisfaction of the trial Judge that for just decision of the case said evidence was necessary to be produced but the learned trial Judge dismissed the application in a subjective manner and submitted that scope of section 540, Cr.P.C. is very wide and there was sufficient material on the file to allow the application, but the same was dismissed arbitrarily. He has prayed for acceptance of the revision petition.

3. The learned Deputy Prosecutor-General assisted by learned. counsel for the accused has opposed the contentions and submitted that no exception can be taken to the impugned order as neither there are statements of said witnesses under section 161, Cr.P.C. nor during span of four/five years the prosecution ever indicated to produce them as witnesses of last seen, and submitted that in fact application in this behalf was filed by the petitioner with mala fide intention to prolong the agony of the accused persons. He submitted with reference to section 265-C Cr.P.C. that said persons did not come in the definition of witnesses. Also submitted that section 540, Cr.P.C. is inapplicable to the case in hand.

4. I have heard learned counsel for the parties and have also perused the available record.

5. Section 540, Cr.P.C. is a provision of wide import and its scope is quite exhaustive and a Court of competent jurisdiction (trial Court) can summon any person who is acquainted, in the opinion of the Court, with the facts in issue in a criminal case for just decision of the case. In the instant case cross-examination on C.W.1., namely, Yousaf Kharral, S.P. (Retd) shows that he was of the opinion on the basis of his investigation that Pappu Kamaniwala and Tahir Addawala were the witnesses of last seen of the deceased in the company of the accused. He recorded said fact in the daily diary, dated 25-3-2003. For just decision of the case, the learned trial Judge could summon said persons as Court witnesses but he declined. The satisfaction of the trial Judge or the Court concerned as mentioned in section 540, Cr.P.C. should be objective and not subjective. It may be mentioned that the definition of witnesses as pointed out by the learned counsel for the accused persons with reference to section 265-C, Cr.P.C. has no relevance as the expression "witness" has been dealt with in this section in the context of statements of witnesses recorded by police under section 161, Cr.P.C. during investigation or recorded by the Magistrate under section 164, Cr.P.C. It, therefore, cannot be said that if a person who is otherwise acquainted with the circumstances or facts of a particular case and his statement under the above provisions of law is not recorded, he could not be termed to be a witness neither can be permitted to be a witness nor can be permitted to be produced before a Court or summoned. As such if this argument of the learned counsel for the respondent is accepted, then the whole scheme of law embodied behind section 540, Cr.P.C. would loose its significance or the section would become redundant. The argument, therefore, has no substance.

6. Since the C.W., the Investigating Officer (a retired Superintendent of Police), during the investigation had come to the conclusion and also recorded in the relevant Zimni that Pappu Kamaniwala and Tahir Addawala were relevant witnesses of last seen evidence about which the learned counsel for the accused had posed questions in the cross-examination to said C.W., therefore, I am of the opinion that the application filed by the petitioner under section 540, Cr.P.C. before the learned trial Judge was neither out of context nor was moved with any ulterior motive to drag the accused persons through prolonged litigation. In the similar circumstances, this Court in the case titled Muhammad Yaqoob v. Sessions Judge, Kasur and others 2003 MLD 1296, had allowed revision petition by setting aside the order passed by the learned trial Judge declining to recall persons acquainted with the facts and circumstances of the case under section 540, Cr.P.C. Following the said case-law, this petition is accepted, the impugned order is set aside with a direction to the learned trial Court to summon the said persons for their statements as prosecution witnesses, in accordance with law. H.B.T./M-293/L Petition accepted.