2005 PLP 1351 (YLR)

This criminal revision has been filed against the order dated 26-10-2004 passed by the learned Additional Sessions Judge, Lahore, whereby he allowed an application moved under section 540, Cr.P.C. read with Art.161 of the Qanun-e-Shahadat Order, 1984, by Muhammad Nadeem (respondent No.1) who is one of the accused facing trial in a murder case. It was prayed in the said application that the "weapon allegedly recovered from the petitioner along with lead bullet recovered from the body of the deceased may kindly be sent to Forensic Science Laboratory in order to know if the lead bullet was fired from the pistol or not in the interest of justice so that no innocent person may be punished". The said application was resisted by the present petitioner who is the complainant of the case. After hearing the arguments of the parties the learned Additional Sessions Judge, accepted the application. The operating part of the order of the learned Additional Sessions Judge, which is contained in paragraphs Nos.6 and 7 are being reproduced as under:-- "

6. From post-mortem report, it is clear that one metallic piece was recovered from occipital bone region of the deceased which was kept in a phial. This phial was handed over by Ahmad Ali constable before the Investigating Officer who took into possession vide memo. Exh.P.A. duly attested by Jahanzaib P.W.7. This P.W.7 has made a reference of this phial in his statement. On perusal of record it is noted that this metallic piece is not sent to the F.S.L. for its matching with any weapon recovered from the accused persons. Of course, experts of F.S.L. could make an opinion whether the metallic piece matches or not with the weapons recovered from the accused and therefore, this opinion will lend a hand of great help for reaching just conclusion of the case.

7. It is true that the instant application is moved after the closure of the prosecution evidence. But the delay is not hurdle for proceeding with such application. Under law, the Court is competent, at any stage of the case, to recall for such report. Reliance is placed upon "1980 PCr.LJ 1923(Lahore); PLD 1987 Lahore 252 and AIR 1933 Sind 491". Hence the petition is hereby accepted. The S.H.O. is hereby directed to send the metallic piece for its matching with the weapons allegedly recovered from the accused persons." Aggrieved of the said order the petitioner has filed the instant revision petition.

2. Syed Zahid Hussain Bukhari, the learned counsel for the petitioner/ complainant in support of this revision petition argued that the application under section 540, Cr.P.C. read with Art.161 of the Qanun-e-Shahadat Order, 1984 had been filed with an inordinate delay of three years when the prosecution evidence had almost been concluded that the petition was aimed at filling in lacuna of the defence and that the effect of the impugned order would be that investigation would commence afresh; that the delay in filing the petition was on account of the fact that some manipulation had been made by the party whereafter the application had been moved. The main thrust of the arguments advanced by Syed Zahid Hussain Bokhari, was that in section 540, Cr.P.C. the Court can only summon a person i.e. a human being and not any other evidence. He also submitted that the impugned order had put the accused person in an advantageous position vis-a-vis the prosecution which according to him was against the spirit of section 540, Cr.P.C.

3. On the other hand Mr. Muhammad Afzal Siddiqui, the learned counsel for respondents Nos.1 to 4 i.e. the accused persons who are facing the trial, argued that there was no delay in making the application inasmuch as the fact that the lead bullet recovered from the body of the deceased had not been sent for analysis to Forensic Science Laboratory came to light for the first time on 14-9-2004 on which date the Investigating Officer had been examined; that it was the right of the accused person to have demanded matching the lead bullet with the weapon with which it had been allegedly fired and that the said analysis and report of the Forensic Science Laboratory was essential for a just decision of the case. He argued that the impugned order dated 26-10-2004 was absolutely legal and did not call for any interference by this Court. In support of his plea Mr. Muhammad Afzal Siddiqui, relied on Ghulam Yasin v. Muhammad Bashir and 5 others PLD 1987 Lahore 252 and Khairullah and another v. State 1994 SCMR 1066.

4. Ch. Aamir Rehman, the learned Additional Advocate-General who had appeared on Court's call vociferously supported the impugned order and submitted that the said order had been passed according to the demands of justice and the same was perfectly legal.

5. I have considered the arguments of the learned counsel for the parties at considerable length and perused the record.

6. A plain look at section 540, Cr.P.C. would show that it is an enabling provision which has been enacted to enable the Court to get to the truth as ascertainment of truth is primary obligation of the Court. As would appear from the reading of section 540, Cr.P.C. itself, it consists of two parts. The first part is permissive and gives discretionary powers to the Court to summon or recall any person or witness. However, the second part of this section is mandatory inasmuch as it casts an obligation on the Court to summon, examine, call and recall any such person mentioned in the first part if his evidence is essential for just decision of the case.

7. It is not denied that the Investigating Officer had examined in this case on 14-9-2004 and it had been only in cross-examination that he stated that the lead bullet recovered from the body of the deceased and sealed in a phial had not been sent to the Forensic Science Laboratory for matching the same with the alleged recovered weapon. The application under section 540, Cr.P.C. read with section 161 of Qanun-e-Shahadat Order, 1984 was moved on 22-9-2004 i.e. a week after examination of the Investigating Officer, thus it cannot be said that there is any delay much less any inordinate delay in filing the said application. It is to be determined by the trial Court itself as to whether the failure of the Investigating Officer to send the lead bullet was intentional or unintentional but one thing which is absolutely clear is that the conclusion of the learned trial Court that the opinion of the Forensic Science Laboratory " will lend a hand of great help for reaching a just decision of the case" cannot be termed as absurd or fanciful. It cannot be said that the proposed opinion of Forensic Science Laboratory would be irrelevant. The mere fact that the prosecution evidence has almost been concluded will not be very material, inasmuch as the stage of the trial has never been considered a relevant consideration if the evidence sought to be brought on record may help the Court in reaching a just conclusion. What, however, is to be safeguarded by the Court is that this power is not exploited by the parties making the application or that the opposite party is not put in a position of advantage vis-a-vis the other. The Court is always guided by what the ends of justice demand. In the instant case by making application the accused person himself had put his position at great peril inasmuch if the report of the Forensic Science Laboratory is found to be positive its consequences for the accused person are not difficult to imagine.

8. Insofar as the contention of the learned counsel for the petitioner that section 540, Cr.P.C. talks only about a person and that too only a natural person is concerned, there does not appear to be much substance in it. In this context it would be advantageous to quote the case of, Muhammad Azam v. Muhammad Iqbal and others PLD 1984 Supreme Court 95 wherein while elaborating the scope of section 540, Cr.P.C. the Honourable apex Court inter alia observed that it would be not correct to say that process of reaching conclusion whether or not it is essential for the just decision of the case to summon an item of evidence is merely an exercise of discretion. Because while appreciating the material or circumstances in which a conclusion has to be reached one way or the other, the Judge goes through an exercise in which logical constraints are to be followed and he cannot in his discretion follow the course contrary to what the clear logic of the situation demands. It would thus be seen that the Honourable Apex Court speaks of summoning an item of evidence and does not give restricted meanings as canvassed by the learned counsel for the petitioner. In the case of Ghulam Yasin v. Muhammad Bashir and 5 others PLD 1987 Lahore 252, wherein a similar contention had been raised, this Court while repelling the same observed that it was correct that in section 540, Cr.P.C. only the word "person" has been used but this would not mean that a Court has no power to call any Fire-Arms Expert to get the matching report of the lead bullet with the fire-arm.

9. Even otherwise, it has to be kept in mind that section 540, Cr.P.C. being an enabling provision has to be interpreted liberally and its restrictive interpretation would undermine the very purpose for which the said provision had been enacted.

10. Insofar as the apprehension of the petitioner that some tampering might have been made by the accused party is concerned, suffice it to say that if the petitioner is dissatisfied with the report of the Forensic Science Laboratory he can always challenge the same on any ground which he may like to urge before the learned trial Court. The trial Court in such an eventuality will not be precluded from entertaining the grievance of the petitioner strictly in accordance with law.

11. In view of what has been discussed above, I find no merit in this revision, which is accordingly dismissed. H.B.T./M-898/L Revision dismissed.