2002 P Cr (PLP)

Date of hearing: 10th May, 2002. Mst. Nishan Bibi petitioner has filed instant criminal revision, challenging the validity of order, dated 26‑11‑2001 passed by learned Sessions Judge, Karak in Hadd Case No.38 of 2000, whereby the application moved by Public Prosecutor on 11‑6‑2001 was accepted and Maulvi Sultan Shah, Nikah Khawan and five others were summoned as Court‑witnesses for just decision of controversy involved regarding Nikah of the petitioner with Saeedur Rehman and legitimacy/parentage of a baby born to the petitioner.

2. Facts necessary for the disposal of this criminal revision are, that complainant Lahor Khan son of Mangi Khan resident of Mauza Kando Khel, District Karak made a report at Police Station Karak on 24‑11‑1999 wherein he charged his co‑villagers Faizullah and his brother Abdullah, for abducting his daughter‑in‑law Mst. Nis han Bibi petitioner from his house on the previous night i.e. 23‑11‑1999 in order to compel the petitioner to marry Abdullah accused. It was mentioned in the report that petitioner was married to Saeedur Rehman son of Lahor Khan complainant 6/7 months prior to the occurrence. On the previous night Mst. Nishan Bibi was found missing from the house. The complainant and his son made hectic search but whereabouts of Mst. Nishan Bibi were not known. Now they have come to know that his co villagers, Faizullah and Abdullah sons of Jamad Khan, had a hand in the abduction of Mst. Nishan Bibi. At the statement of the complainant a case was registered against Faizullah and Abdullah co‑accused vide F.I.R. No.267, dated 24‑11‑1999 Police Station Karak under sections 5, 6 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

3. Abdullah co‑accused appeared before Muhammad Amin Klan, S.H.O. Police Station Karak on 3‑12‑1999 and he was arrested. The local police conducted raid on 7‑8‑2000 and Mst. Nishan Bibi was recovered from the house of Intizar, brother of Abdullah co‑accused in Kohat.

4. The prosecution in order to prove its case produced five witnesses in all. Mst. Nishan Bibi in her statement recorded under section 342, Cr.P.C. repudiated the prosecution allegations and denied her marriage with Saeedur Rehman. She stated that due to fear of her father she left the house and stayed in different places where she was subjected to sexual intercourse by some unknown persons. Abdullah and Faizullah co‑accused also denied the prosecution allegations and claimed to have been falsely charged.

5. After recording the prosecution evidence and statements of the accused under section 342, Cr.P.C. learned trial Judge took cognizance of the application in question submitted earlier and allowed the same through the impugned order for the reasons contained therein, which has caused annoyance to the petitioner and she has assailed the same by way of filing instant criminal revision.

6. Appearing on behalf of the petitioner Mr. Mehboob Khan, Advocate attempted to argue that the prosecution has failed to prove its case beyond reasonable doubts and the prosecution has moved the application for producing additional evidence with sole purpose to till in the lacunas and deficiencies in the prosecution case. He also contended that legitimacy of parentage of kid can be proved or disproved by the Guardian Court or Family Court and the learned Sessions Judge proceeded on a wrong premises to exercise his discretion in favour of the prosecution and accept the application. He submitted that the application having been filed at the stage when the matter was fixed for arguments should not have found favour with the learned trial Judge and warranted

7. Malik Muhammad Akhtar, Advocate, learned State Counsel assisted by Mr. Lal. Jan Khattak, private counsel for the complainant, supported the impugned order and maintained that keeping in view the facts and circumstances of the case and the controversy involved, the learned trial Judge had good reasons to accept the application and summon the persons mentioned therein as Court‑witness.

8. Section 540, Cr.P.C. in fact confers jurisdiction upon the Court, rather in appropriate cases imposes a duty upon the Courts for summoning witnesses who are not brought before the Court. So if it comes to the knowledge of the Court that there is a witness or witnesses whose statements are necessary to lead towards the truth and to promote cause of justice in a particular case then the Court can order production of such witnesses. It is the duty of the Court to do justice to the parties within the ambit of law and if the law bestows an authority or the discretion to the Court the same must be exercised in judicial manner and for advancement of justice and not against it. Administration of justice is primarily and essentially an obligation cast on the Courts of law constituted for the purpose. Section 540, Cr.P.C.. is intended to enable the Court to get at the truth, as the ascertainment of truth is the primary duty imposed upon a Judge and he is not absolved from attempting to perform that duty merely because of technicalities. Court under A section 540, Cr.P.C. has plenary powers for summoning a person as witness or re‑examine any person already examined at any time of the proceedings if such evidence appears essential for just determination of controversy involved in the matter. Section 540, Cr.P.C. consists of two parts. The first part of the section gives discretionary power to summon or recall any person or witness mentioned in this part. The second part of. the section imposes an obligation on the Court to summon and examine or recall and re‑examine any such person mentioned in the first part if his evidence appears essential to the just decision of the case. The section gives wide, discretionary power to a Court to examine any witness as a Court‑witness at any stage of the case. The power conferred by this section can be exercised at any stage of the inquiry or trial. Mere delay cannot be taken as a hurdle for refusing to exercise power under section 540, Cr.P.C. if it is otherwise considered essential for the just decision of the case. But moving an application under this section for calling witnesses as Court‑witnesses would not be warranted when it is an afterthought. The Court must avoid filling of gaps left by either party but it must strive to reach a just decision of the case. Pervaiz Ahmad v. Munir Ahmad and another 1998 SCMR 326, Muhammad Rauf Anwar v. The State and others 1992 PCr.LJ

729. Painda Gul and another v. The State and another 1987 SCMR 886, Syed Ali Nawaz Shah Gardezi v. Lt. Col. Muhammad Yusuf Khan PLD 1962 (W.P.) Lab. 558, Malik Muhammad. Anwar v. The State PLD 1991 Kar. 351, Mst. Aamna Bibi v. Kashif‑ur‑Rehman and another 1995 PCr.LJ 730 and The State v. Muhammad Yaqoob and others 2001 SCMR 308.

9. The basic question that arises for consideration in this case is whether the learned Sessions Judge has exercised his discretion within the spirit of section 540, Cr.P.C. A perusal of the record would reveal that initially two brothers namely Abdullah and Faizullah were charged for the abduction of Mst. Nishan Bibi petitioner, daughter‑in‑law of complainant Labor Khan but subsequently the petitioner was nominated as one of the accused. The petitioner in her statement recorded under section 342, Cr.P.C. refuted allegations of the prosecution and denied her marriage with Saeedur Rehman son of the complainant. She also gave an evasive answer to a question regarding birth of a baby and stated that she left the house due to fear of her parents and stayed at different places where she was subjected to the act of sexual intercourse by an unknown person which resulted in her pregnancy and resultant birth of a child. She totally exonerated co‑accused of the crime in question. As the learned trial Judge was seized of a Hadd case and the controversy related to the factum of marriage of the petitioner with Saeedur Rehman and the determination of legitimacy /parentage of the baby, the learned trial Judge was left with no option but to exercise his discretion in favour of the prosecution and accept the application for summoning Nikah Khawan, Nikah Registrar and witnesses of Nikah, as Court‑witnesses, for just determination of controversy involved in the matter. Keeping in view the facts and circumstances of the case, learned trial Judge was quite justified to lean in favour of the prosecution and allow the application. It is not denied that in such‑like cases Courts of law are always inclined to allow applications under section 540, Cr.P.C. in order to do complete justice between the parties. The learned trial Judge does not appear to have gone wrong and misdirected himself in accepting the application. The submission of the learned counsel for the petitioner that the application was moved for no other reason but to fill in the gaps and deficiencies in the prosecution case and learned trial Judge had no solid and cogent reasons to allow the same, is misconceived. The submission of the learned counsel that the application has been filed at belated stage is equally without force. Mere delay cannot be considered as impediment C for refusing to exercise power, under section 540, Cr.P.C. if it is otherwise found essential for the just decision of the case.

10. In the result and for the foregoing reasons finding no substance in this criminal revision I dismiss the same and maintain the impugned order of learned Sessions Judge, Karak. H.B.T./526/P Revision dismissed.