1998 PLP 326 (SCMR)

MUNAWAR AHMAD MIRZA, J.

This petition for leave to appeal is directed against judgment dated 23rd September, 1997 passed by learned Single Judge in Chambers of Lahore High Court.

2. Short facts relevant for purposes of present petition are that on 28th January, 1992, based upon statement of Pervaiz Ahmad brother of deceased Javed Akhtar, F.I.R. No.31 of 1992 was registered with Police Station, Mustafabad, District Kasur under section 302/324/148/149, P.P.C. After submission of challan, the accused including respondent No.1 are facing trial before learned Additional Sessions Judge, Kasur. Prosecution had adduced evidence, when towards 20th October, 1994 complainant submitted an application under section 540, Cr.P.C., duly endorsed by District Attorney for summoning Director, Technical Services Punjab, Lahore as Fire-arm Expert to ascertain whether element recovered from the body of deceased during post mortem was led being remnant of a bullet or .a pellet. Accused-respondents contested the application which was ultimately allowed by the trial Court vide order dated 14th April, 1997. Operative portion is reproduced below:- "The application was submitted on 20-10-1994 and it was disposed of on 14-11-1994 as discussed above and thereafter complainant side went into revision before Honourable High Court and detailed study of the order of Honourable High Court revealed that the application should be decided well in time before the conclusion of the case, thus in view of the observation of his lordship Mr. Justice Ch. Khurshid Ahmad, honourable Judge Lahore High Court, Lahore dated 13-2-1996 the application submitted by the complainant is granted and summon the Director, Technical Services Fire-arms Expert, Punjab, Lahore for his evidence. Sealed Phial be also summoned from the Police Malkhana".

3. Respondents Munir Ahmad, etc., aggrieved from the above order had preferred Criminal Revision No. 102 of 1997 before Lahore High Court which was contested by the petitioner. Eventually, learned Single Judge in Chambers of Lahore High Court by means of judgment dated 23rd October, 1997 accepted the revision petition and setting aside the order of trial Court dated 14th April, 1997 dismissed the application of the petitioner filed under section 540, Cr.P.C. The above-referred judgment dated 23rd September, 1997 has been assailed through present petition. .

4. Mr. Ghulam Nabi Bhatti, Advocate Supreme Court appearing for the petitioner (complainant) contended that examination of Director, Technical Service, Punjab, Lahore as Fire-arm Expert was necessary to arrive at fair conclusion 'and safe administration of justice to ascertain whether element recovered from the body of deceased was factually 'lead' being remnant of a bullet or a pellet. According to him, no delay would be caused in procuring said evidence.

5. Mr. Ghulam Bari Saleemi, learned counsel appearing for the accused respondents vehemently opposed the petition. It was canvassed that complainant side was unnecessarily delaying the proceedings by adopting various tactics. Learned counsel argued that weapon was recovered almost one and half year after the incident and has no nexus with ascertainment of fact whether element recovered from body of deceased was led being remnant of a bullet or a pellet.

6. We have considered the arguments in the light of available record and relevant provisions of law. It may be seen that section 540, Cr.P.C. provides plenary powers to the Court for summoning a person as witness or re examination of any person already examined at any stage of the proceedings if such evidence appears essential for just determination of controversy involved in the matter. On thorough scrutiny of all aspects, we feel that examination of Director, Technical Services, Punjab, Lahore as Fire-arm Expert only for purposes of ascertaining nature or bullet or pellet would promote ends of justice; without causing any prejudice to accused person. Learned Single Judge in Chambers of Lahore High Court in our opinion, has seriously erred in exceeding 8 to exercise jurisdiction by interfering with discretionary order of Trial Court dated 14th April, 1997, allowing examination of a Fire-arms Expert. Accordingly, we are persuaded to convert the petition into appeal and set aside judgment dated 23rd September, 1997 passed by learned Single Judge in Chambers of Lahore High Court. Besides, to obviate delay and ensuring expeditious disposal of the case, it is directed that prosecution shall produce said witness at its own responsibility. Trial Court shall record statement of above referred witness and defence evidence with promptitude and take all necessary measures to conclude the case as far as possible within one month. N.H.Q./P-7/S Appeal allowed