2003 P Cr (PLP)

2002 PCr.LJ 372 and 2002 SCMR 1455 ref. Nishat Ahmad Siddiqui for Petitioner. Syed Altaf Hussain Bukhari for the State. Through this petition under section 439, Cr.P.C. the petitioner seeks setting aside of the impugned order, dated 2‑11‑2002 by which two applications moved by the prosecution one for the summoning of P.W.2 for re‑examination and other for summoning of Audit Officer, Chief Officer of the Municipal Corporation and Administrator of Municipal Corporation have been accepted.

2. Brief facts of this case are that the petitioner is facing the trial in case F.I.R. No.25 dated 9‑6‑1994 under section 409, P.P.C. read with section 5(2) 47 P.C.A. registered at Police Station A.C.E., Multan and the trial is pending before the learned Special Judge, Anti‑Corruption, Multan. After the conclusion of the evidence of both the parties according to the learned counsel for the petitioner and also the final arguments were also heard, an application was moved on 9‑4‑2002 for the summoning of Nazir Ahmad P.W.2 for the purpose of re‑examination and also another application was moved on 10‑9‑2002 by which other witnesses mentioned above were also requested to be summoned for the purpose of recording of their statements.

3. Learned counsel for the petitioner contends that the lacunas having been come into notice of the prosecution, in order to fill up the same, both the applications have been moved whereas material which the prosecution intends to produce has already been exhibited as Exh.P.1 through P.W.2 Nazir Ahmad, hence, summoning of the witnesses is not at all necessary and will cause prejudice to the case of the petitioner as they were neither associated in the investigation nor their names do find mentioned in the calendar of witnesses. It is also contended that the finding of the learned Additional Sessions Judge while accepting the applications is illegal and unlawful. He has relied upon 2002 PCr.LJ 372 and 2002 SCMR 1455.

4. Learned counsel for the State has opposed this petition on the ground that the document Exh.P.1 has already been placed on the record but in order to prove its contents only applications were moved for summoning of the witnesses under section 540, Cr.P.C. and it will not prejudice the case of the petitioner. It is also contended that recording of the statements of these witnesses is necessary for the just and proper decision of the case.

5. I have heard the learned counsel for the parties and have also gone through the impugned orders. The statement of P. W.2 was recorded on 21‑5‑2001 but no request was made for the re‑examination of P.W.2 in the cross‑examination and even the case was closed on 12‑10‑2001 by producing all the witnesses. The statement of the accused under section 342, Cr.P.C. was also recorded on 17‑10‑2001, whereafter the final arguments were heard on 26‑3‑2002 and the case was fixed for the announcement of judgment, when the application under section 540, Cr.P.C. was moved on 9‑4‑2002 which application was still pending, that another application was moved under section 540, Cr.P.C. by the prosecution on 10‑9‑2002 for summoning the witnesses but no reason had been mentioned in the said application for not moving the same before the conclusion of the prosecution evidence. Both these applications were moved even after the final arguments were heard, which clearly means' that these were moved in order to till up the lacunas in the prosecution evidence. No doubt the powers under section 540, Cr.P.C. can be exercised by the Court at any stage, but it is established principle that the A witnesses cannot be summoned under section 540, Cr.P.C. in order to fill up the lacunas in the evidence. In such circumstances, both the impugned orders are set aside, the applications moved by the prosecution in the learned trial Court under section 540, Cr.P.C. are dismissed and this revision petition is accepted. N.H.Q./T‑114/L Revision petition allowed.