2001 PLP 746 (YLR)

Najeeb Faisal for Petitioner. Burhan Moazzam Malik for Respondents. The petitioner has filed a private complaint, which is pending in the Court of Mr. Zawar Ahmad, Additional Sessions Judge, Lahore, in which respondents Nos.2 to 7 were summoned and the charge was framed. Statement of prosecution/witnesses of the complainant were recorded and statement of Rana Abdul Ghaffoor, A.S.-I., (P.W.15) was recorded on 29-1-2001. He recorded the statement of injured Shahid who later on succumbed to injuries. Statement of P.W.15 could not be completed and the case was adjourned to 30-4-2001, on which date the witness was recalled and examined on oath. During this statement P. W.15, Rana Abdul Ghafoor, A.S.-I., stated as under:

"Thereafter, I accordingly recorded statements of both the injured, who also, while corroborating the complaint, nominated accused Sajjad." But the statement recorded by him, of Shahid who subsequently died, was not exhibited hence it cannot be read unless the statement is exhibited which can be treated as a dying declaration. The value of statement is to be seen by the Court at the time of arguments but due to the failure to place the statement on the record an important piece of evidence has not come on record. The complainant filed an application on 7-5-2001 in which he stated that the counsel for the complainant was busy before another Court when he entered into the Court, the examination-in- chief of Rana Abdul Ghafoor, A.S.-I. (P.W.15) had already been completed. He was being cross-examined, and due to absence of learned counsel for the petitioner at the time of examination-in-chief, the statement recorded by the witness (P.W.15) of the deceased could not be placed on record and could not be exhibited, which is necessary for the just decision of the case, he may be recalled under section 540, Cr.P.C. This application was decided by learned Additional Sessions Judge, vide order, dated 9-5-2001 and dismissed the application as the prosecution cannot be allowed to fill in the lacunas.

2. Learned counsel for the petitioner contended that the dismissal of the application by the learned Additional Sessions Judge is illegal and unlawful and contrary to law. Any witness can be recalled under Article 33 of the Qunun-e-Shahdat as the party who has produced a witness re-examined him. He has also stated under Article 33 of the Qanun-e Shahdat Order, 1984 the abovesaid statement was admissible. He has further stated that it was necessary to place on record, the statement of Shahid injured who subsequently died, for reading it in evidence hence the calling of Rana Abdul Ghafoor, A.S.-I., P.W.15, under section 540, Cr.P.C. was necessary to reach a just conclusion.

3. On the other hand, learned counsel for the respondents has contended that challan was submitted but the petitioner/complainant filed a private complaint in which the proceedings were initiated. Now he cannot claim the recalling of a witness, which has been cited by the prosecution in the challan of case. He has shown no confidence in the police, now he wants to get recorded the statement of Rana Abdul Ghafoor, A.S.-I., P.W.15, who has recorded the statement of Shahid injured. He has further contended that prosecution cannot be allowed to fill up the lacunas under the garb of re-summoning of a witness. The prosecution was afforded full opportunity but if some lacuna is left now it cannot be filled in. He further contended that the application was filed by the complainant, and it was not forwarded by the public prosecutor. Hence the application was not maintainable. He has further contended that the junior of the counsel for the complainant was present hence they cannot claim that the counsel was not present. Re-examination cannot be made as they want to tutor a P.W. and produce in their support document to fill up the lacuna. He has placed reliance on 1998 PCr.LJ 1553 and 2000 PCr.LJ 372:

4. Learned counsel for the respondents contended that the principle has been laid that the prosecution cannot be allowed to fill, up the lacunas, hence this revision petition is liable to be dismissed.

5. I have heard learned .counsel for both the sides at length. Admittedly, Rana Abdul Ghafoor, A.S.-I., P.W.15, during the investigation of the case recorded the statement after getting permission from the doctor whether Shahid injured was fit to make the statement or not. The doctor opined that the injured was fit to make the statement. This fact has already been brought on the record in the examination-in-chief but due to the absence of learned counsel for the petitioner, at the time of examination-in- chief, the statement recorded by this witness could not be exhibited. This is necessary piece of evidence and the prosecution cannot be strangulated under the cover of filling up the lacunas. The recalling of Rana Abdul Ghafoor, A.S.-I., P.W.15 is necessary, recorded the statement, a long time ago, copy whereof was supplied to the accused respondent well in time under section 265-C, Cr.P.C. which, through him, is required to be exhibited and it is not filling up lacunas of the prosecution because the accused was well -aware of the statement even before the framing of the charge. If, due to the absence of learned counsel. for the petitioner, this statement has not been exhibited it will prejudice the case of the prosecution. The prosecution has equal right to produce evidence and cannot be throttled if due to some human error any piece of evidence which is already on the record is not brought that can be allowed to be brought subsequently, if the prosecution evidence has not been closed. Under section 540, Cr.P.C, the Court has been given wide powers to call a witness the statement of which is necessary for the just decision of the case. If the Court comes to a conclusion that the statement of witnesses is necessary for the just decision of the case the Court is bound to call him but when the Court comes to a conclusion that statement is not necessary for just decision of the case it is discretion of the Court to call of not the witness under section 540, Cr.P.C but the case in hand the statement which has already been recorded as a necessary piece of evidence which will help the Court in, reaching the just decision of the case cannot be brushed aside under the pretext of filling up the lacunas. I feel that bringing of this statement on the record is necessary for just decision of the case and the refusal by the learned Additional Sessions Judge vide order, dated 9-5-2001 is illegal and unlawful. It will also be relevant to point out -that the prosecution evidence is still going on and it has not yet been concluded. The prosecution under section 265-F can produce in evidence which it desires. Hence before the closing of the prosecution evidence, any oral or documentary evidence the prosecution intends to produce, cannot be stopped but after the conclusion of the prosecution evidence it is the duty of the Court to ascertain whether the production of further evidence is necessary for just decision of the case or not. As the case falls in the first category even under section 540, Cr.P.C. the placing record the statement of Shahid, deceased which is dying declaration is necessary for just decision of the case and the revision petition recall Rana Abdul Ghafoor, A.S. -I., P.W.15, and re-examine him on this score alone. It will not cause any prejudice to the accused as they will be afforded another opportunity to cross-examine the same witness on this point. This order will not prejudice the case of any of the party as at the time of arguments it is the trial Court which has to decide whether the statement made by Shahid is admissible and what is the value of that statement. It is left on the trial Court to see the value of the dying declaration and its admissibility at the proper time. The revision petition is allowed and the trial Court is directed to re-examine Rana Abdul Ghafoor, A.S.-I., P.W.15, immediately before the conclusion of the prosecution evidence. H.B.T./S-238/L Revision allowed.