2022 P Cr (PLP)

The present criminal revision under sections 435 and 439 of the Code of Criminal Procedure has been filed against order dated 10.09.2021 passed by the learned Sessions Judge (Special Judge) ATC, Sahiwal whereby the application moved by the Deputy District Public Prosecutor for re-summoning of Mr. Naseer Rasheed, Magistrate Ist Class, Sahiwal (PW-19) was accepted. Hence, instant petition.

2. Heard. Record perused.

3. The application under section 540, Cr.P.C. submitted by the prosecution was allowed by learned Trial Court primarily on the ground that controversy as to the date on the application for identification parade needs to be addressed. Section 540, Cr.P.C provides for power to summon material witness, or examine person present. This Section reads as under: "

540. Power to summon material witness or examine person 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 re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case".

4. A bare perusal of this Section goes to show that at any stage of proceedings, the Court has ample power to summon and examine a person as a witness or recall or re-examine any person already examined.

5. It is stated by learned counsel for the petitioner that by allowing application for re-summoning of Mr. Naseer Rasheed Magistrate (PW-19) the prosecution cannot be allowed to fill up lacuna. It is relevant to mention here that oversight or mistake during conducting of case cannot be understood as lacuna and so can be corrected. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are proved.

6. Lacuna in the prosecution must be understood as the inherent weakness in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the prosecution cannot be treated as irreparable lacuna. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.

7. We cannot therefore, accept the contention of the petitioner as a legal proposition that the court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches at belated stage. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. The steps which the trial court permitted in this case for re-summoning witness cannot therefore be spurned down.

8. The order impugned needs no interference in exercise of inherent powers. We are satisfied that it is necessary to examine Mr. Naseer Rasheed, Magistrate (PW-19) for the just decision of the case, that neither there is any lacuna which is filled in nor is the accused likely to be prejudiced.

9. The petition is dismissed, with no order as to costs. SA/S-82/L Revision dismissed.