2006 PLP 3106 (YLR)

AKHTAR ZAMAN MALGHANI, J.

In this constitutional petition the petitioner has challenged validity of order dated 23-7-2004 passed by Special Judge, Anti-Terrorism Court-I, Quetta, whereby; application filed by the accused/private respondents under section 540, Cr.P.C. for calling Noor Ahmed as Court witness and sending empties to the Ballistic Expert for examination to ascertain whether the empties were fired by one or more weapons, was allowed.

2. Briefly stated, facts of the case are that a case vide F.I.R. No.57 of 2003 was registered under sections 302/147/148/149, P.P.C. against the private respondents in levies station, Khanozai, District Pishin. After usual investigation the challan was submitted before the Special Judge, Anti-Terrorism Court-I, Quetta. It appears from the record that during progress of prosecution evidence the accused/respondents moved an application under section 540, Cr.P.C. for calling Noor Ahmad son of Ahmed Khan as Court witness as well as sending the crime empties secured from the place of occurrence to the Ballistic Expert in order to ascertain the number of weapons from which these empties were fired. The learned trial Judge after hearing the parties allowed the application vide order dated 23-7-2004. Hence this petition.

3. We have heard the learned counsel for the petitioner as well as learned counsel for the private respondents and learned Advocate General. We have also gone through the impugned order. It is vehemently contended by the learned counsel for the petitioner that after passing of the order by the Special Judge, Anti-Terrorism Court, same was challenged before this Court and on 30-7-2004 this Court suspended the impugned order but despite such suspension, which was communicated to the Court on 31-7-2004, the empties were sent for examination and a favourable report was obtained, which report in view of order of this Court dated 30-7-2004, was a nullity in law. He further contended that Noor Ahmad, who was sought to be examined by the accused party as a Court witness, was father-in-law of one of the deceased persons and not a cited witness. He himself has not come forward go give evidence nor lodged any report, as such; his statement was not so much material to attract the provisions of section 540, Cr.P.C. As regards sending of crime empties for examination, the learned counsel urged that the application under section 540, Cr.P.C. was moved when prosecution evidence was almost complete and in the application it has not been shown as to how evidence of Ballistic Expert was necessary for the just decision of the case and more particularly when no weapon of offence was recovered, yet the learned Anti-Terrorism Court directed for sending the empties recovered from the scene of occurrence to the Ballistic Expert to ascertain the fact as to whether the same were fired from one or more weapons, thereby; attempting to create evidence in order to help the accused party to build-up their case, to the disadvantage of prosecution and in a way the learned Judge assumed the role of investigator, which has never been the object and purpose of section 540, Cr.P.C. conferring discretion on the Court to examine any person whose evidence appears to be essential for arriving to a just conclusion. In support of his arguments the learned counsel placed reliance on the judgment reported in PLD 1949 Lahore page 100.

4. On the other hand, the learned counsel for the private respondents contended that the application under section 540, Cr.P.C. was allowed by the Anti-Terrorism Court on 23-7-2004 and on the same day the Public Prosecutor was directed to send the empties for Ballistic Expert's opinion and the empties were accordingly sent on 29-7-2004, whereas; the order of this Court which was effective till 3-8-2004, was communicated to the trial Court on 31-7-2004 when the empties were already dispatched to expert and rest of the proceedings were done by the expert. without knowledge of the order of this Court, as such; there was no violation. He further contended that according to the prosecution version six persons were holding Klashnikovs and two were holding pistols whereas the deceased persons in total received five injuries and in this back ground the application was moved which was allowed by the trial Court after concluding that evidence of the expert was essential for reaching to truth, by exercising its power under section 540, Cr.P.C. which gives discretion to the Court and such discretion once exercised by the trial Court cannot be challenged by invoking constitutional jurisdiction of this Court. He further contended that the impugned order is neither whimsical nor arbitrary to warrant interference by this Court. The learned counsel in support of his contentions referred to the judgments reported in 1995 PCr.LJ page 730, PLD 1987 Lahore page 252; PLD 1984 Supreme Court page 95, 1993 SCMR page 550, PLD 1994 Lahore page 93, PLD 1983 Lahore page 139, 1987 SCMR page 56, 1974 SCMR page 64, PLD 1981 Quetta page 15 and 1985 SCMR page

491. However, it was stated at bar that the application to the extent of examination of Noor Ahmed as Court witness is not pressed.

5. The learned Advocate General supported the impugned order.

6. We have carefully considered the respective contentions put forth by the parties' learned counsel. There is no cavil with the proposition that the Court under section 540, Cr.P.C. has plenary powers for summoning a person as witness or re-examining any person already examined at any 'stage of the proceedings, if such evidence appears essential for just determination of controversy involved in the matter. The first part of section gives the discretionary powers to summon or recall any person whereas the second part imposes an obligation on the Court to summon and examine or re-call and re-examine any such person, if his evidence appears essential to the just decision of the case. But where witnesses who had been summoned as Court witness under section 540, Cr.P.C., were neither named in F.I.R. nor examined by police nor their names were mentioned in the calendar of witnesses nor any witness examined in the case has mentioned any one of them, it could not be said that their evidence have appeared from the record to be essential. By summoning these witnesses it can always be alleged that the trial Court has passed the order to assist the party in building up his case and thereby cast a shadow on it of not being impartial. The Court while exercising powers under section 540, Cr.P.C. is required not to abandon its high place of an impartial arbiter and should always refrain from acting as an investigating agency or assuming role of investigator, however; altruistic motive may be. In the judgment reported in 1991 MLD page 17, while dealing with the discretionary powers of the Court under section 540, Cr.P.C. it was observed as under:-- "But the trial Judge in exercise of his wide powers conferred on him by section 540, Criminal Procedure Code shall always refrain himself from acting as an Investigating Agency embarking upon a roving enquiry in a case by summoning certain persons as Court witnesses. A trial Judge an impartial arbiter cannot assume the role either of an Investigating Officer or a prosecutor while acting under that section even though he may be motivated by pious reasons and his enthusiasm of doing justice in the case." Likewise; in the judgment reported in PLD 1975 Lahore Page 1431 the Honourable Judges held that the Court is not presumed to take over the role of investigator while exercising the powers conferred on it under section 540, Cr.P.C. In another case reported in 1998 PCr.LJ page 2059, where on re-investigation of the case a D.S.P. had held the accused innocent but could not submit his report to the Court because challan had already been submitted to the Court., The accused applied to the Court to exercise its power under section 540, Cr.P.C. to call the D.S.P. It was held that the D.S.P. was one of the investigating officers of the case and not himself a witness in. the case and had no personal knowledge about the facts of the case, the evidence of said D.S.P. was not essential to just decision of the case because neither it would help accused nor serve any useful purpose.

7. In the instant case admittedly at the time of filing of application and making order no evidence was available before the learned trial Court to judge whether such evidence was essential to just decision of the case but on the application of accused persons the learned trial Judge directed for sending the empties to Ballistic Expert for examination, thereby; attempting to create evidence by assuming role of investigator, not permissible under section 540, Cr.P.C. It may be seen that during investigation only empties were recovered from the place of occurrence but no weapon of offence was secured, therefore; the empties could not have been used against the accused persons as corroboratory evidence, as such; it was not essential to send these empties to Ballistic Expert to see whether same were fired from one weapon or more than one to disadvantage of the prosecution, more particularly when we see the same in the light of unfortunate aspect of our society and the possibility of getting favourable report by either party cannot be ruled out.

8. Expert evidence has neither any independent evidentiary value nor the same can form sole basis for conviction or acquittal of the accused. In the judgment reported in PLD 1964 Peshawar page 59, while considering the report of Ballistic Expert their Lordships observed as under:-- "It follows from the above discussion, that though the evidence of ballistic expert has a corroborative value, it alone cannot be made a basis of conviction. However, morally convinced a Judge may feel as to the truth of a particular fact, unless there is a legal proof of its existence, he cannot take it as "proved", and moral certainty or suspicion, however, grave, cannot be allowed to take the place of proof. In this connection I may profitably quote the words of caution of Mr. Justice Darling in the trial of Steinie Morrison when addressing the jury, he said:-- "All that about the revolver, and so on, is very suspicious, gentlemen, but you know you must not convict a man on one suspicion; you must not convict him on a thousand suspicions; you must not add a thousand suspicious circumstances together and say, 'that is proof'. Now you must find somewhere a solid anchorage upon which you can say, 'I am secure of this basis."

9. In view of above discussion, we; are of the view that sending of crime empties for examination of the expert was not essential for the just decision of the case and the learned Judge erred in law by allowing the application under section 540, Cr.P.C.

10. After having gone through the report we smell foul play. It may be noticed that the impugned order was suspended on 31-7-2004 but it has been claimed that the articles were already sent to the Ballistic Expert on 29-7-2004 and in this regard reliance is placed on the Letter No.7077-78/PB(CB) dated 29-7-2004 addressed to the Assistant Inspector General of Police, Criminalistic Division, Government of Sindh, Karachi by Superintendent of Police, Crime Branch, Quetta. Copy whereof is available on judicial record of the trial Court. It does not indicate as to when it was received by the trial Court as it did not bear signature or initial of the Presiding Officer or any other official of the Court. The letter also shows that the place where name of the officer, by whose hand the empties were being sent, was to be incorporated, has been left blank. Similarly the report of Ballistic Expert also does not indicate the name of the officer who handed over the empties in the office of Ballistic Expert and the relevant column has been left blank, creating a doubt as to whether the articles were taken to the expert by police official or by the accused party. The urgency which has been shown in the instant case in sending the articles by the Crime Branch without intervention of Court and examination of the empties by the expert within a few days also raise a number of questions in the mind. Any how after suspension of order by this Court which became operative as soon it was passed, any exercise carried out by the crime branch or expert would have no legal sanctity and the report is a nullity in law.

11. The learned trial Court while allowing the application placed reliance on the judgment reported in PLD 1987 Lahore Page 252, which has no application to the facts of the instant case as in that case the empties and crime weapons both were available before the Court. It is also indicative from the impugned order that the learned Judge has not found the proposed evidence essential to just decision of case but allowed the application after coming to the conclusion, in his own words "it might help the Court".

12. So far objection regarding maintainability of constitutional petition is concerned; we may observe where exercise of the discretion was wholly unjust, unreasonable or perverse this Court can interfere with the impugned order in its supervisory jurisdiction. In the case in hand as already observed the learned trial Court while allowing the application assumed the part of investigator and acceptance of the application amounts to be a device for creating evidence in favour of one party disadvantageous to other party which has never been intention of the law and the discretion exercised by the learned Judge was wholly unjust and unreasonable warranting interference by us in exercise of constitutional jurisdiction. So far case-law relied by the learned counsel for the private respondents is concerned, the same is distinguishable on facts. In view of what have been stated above, we; are inclined to declare the impugned order dated 23-7-2004 as illegal, void and nullity in law. Consequently the same is set aside. Parties are left to bear their own costs. H.B.T./32/Q Petition allowed.