2000 PLP 102 (SCMR)

SH. IJAZ NISAR, J.

Leave is sought against the order of the Lahore High Court, Lahore, dated 18-6-1999, passed in Criminal Revision No.294 of 1998.

2. The relevant facts are that on the report of Ashiq Hussain case F.I.R. No 12 of 1993, dated 10-1-1993, under sections 302 and 324/34, P.P.C. was registered aginst Abdul Salam, petitioner herein and others. The petitioner's brother Abdul Sattar had also received firearm injuries during the occurrence. The petitioner approached the police for the registration of a cross case, but the police declined his request on the ground that Abdul Sattar's injuries were self suffered. Consequently, he applied to the District Magistrate, Faisalabad, for the constitution of a Medical Board for the medical examination of Abdul Sattar. Acceding to his request a Medical Board comprising Dr. Bashir Hussain Kahloon, M.S. District Headquarter Hospital, Fisalabad, Dr. Kifayat Ullah and Dr. Amjad Javed Sandhu, was constituted. According to the petitioner, the Board opined that the injuries suffered by Abdul Sattar could not be self inflicted. Whereupon, the petitioner filed a private complaint against Amanat Ali, Muhammad Anwar, Muhammad Ashraf, Muhammad Ikram and Ashiq Hussain, under sections 148/149, 337(a)(f) and 324, P.P.C. During the trial the petitioner submitted an application for summoning the Chairman of the Medical Board alongwith the record of medical examination of Abdul Sattar, which was dismissed by the learned Additional Sessions Judge, Faisalabad on 1-7-1998, on the ground that the petitioner could not be allowed to fill in lacuna in his case. The other ground which weighed with the learned trial Court was that the name of the witness sought to be summoned by the petitioner was not mentioned in the list of witnesses appended with the complaint.

3. Feeling aggrieved, the petitioner filed a revision in the High Court, which was dismissed on 18-6-1999 on the ground that the learned counsel failed to point out any perversity, arbitrariness, capriciousness or material illegality justifying tinkering therewith." Hence, this petition.

4. It is contended that since Dr. Bashir Hussain Kahloon, Chairman of the Medical Board, was a material witness, the trial Court should have summoned him under section 540, Cr.P.C. notwithstanding the omission of his name from the list of the witnesses. Admittedly, there is a cross-version of the case in the shape of complaint for the injuries suffered by Abdul Sattar, brother of the petitioner, which according to the Medical Board could not be self-suffered.

5. Section 540 Cr. P.C. empowers the Court to summon or examine any person as a witness at any stage of an inquiry or trial, if it considers him to be a material witness and whose evidence appears to be essential to the just decision of the case. The power is not subject to any condition and can be exercised whether or not a person is cited as a witness m the challan case or the complaint, as the case may be. The only requirement is that he should be a material witness and his evidence should be essential to the just decision of the case.

6. In the circumstances discussed 'above, we are of the opinion that Dr Bashir Hussain Kahloon, the Chairman of the Medical Board, who had examined Abdul Sattar, was a material witness and his evidence was essential to the just decision of the challan case as well as the complaint case, and as such should have been summoned and examined as a witness to arrive at the true conclusion. The learned trial Court was, thus, not justified to decline to summon him. Accordingly, we convert this petition into appeal, allow it, and direct the learned trial Court to summon Dr. Bashir Hussain Kahloon, Chairman of the Medical Board, alongwith the relevant record and examine him as witness, as requested by the petitioner. N.H.Q/A-188/SC Appeal allowed.