Power to summon material witness

2020 YLR 313 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 540Power to summon material witnessWitness, given up by prosecutionScope

Accused filed application for summoning the marginal witness of memo as court witness because the prosecution had given up the said witness

Validity

Prosecution had given up one of the marginal witnesses

Prosecution usually avoided cumulative evidence for establishing a memo, if it was satisfied with only one marginal witness

Prosecution had the choice to decide about the number and order of witnesses to be produced before the Trial Court and it could not be forced to examine all the witnesses of the calendar of witnesses

Revision petition was dismissed.

2013 PCrLJ 1623 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 540Power to summon material witnessPrincipleTrial Court allowed complainant to produce three witnesses in support of prosecution case

Accused contended that witnesses allowed by Trial Court neither appeared before Investigating Officer during investigation, nor complainant mentioned their names in his examination-in-chief

Validity

Complainant failed to substantiate that witnesses in question appeared before Investigating Officer and they had recorded their statements or they had appeared at any stage of investigation and they were witnesses of specific fact or act and recording of their statements was essential for just decision of the case

Additional witnesses could not be summoned just to fulfill desire of complainant

Proceedings of trial had already consumed more than three years

Discretion under first part of S.540, Cr.P.C. had to be exercised judicially and on sound material keeping in view all aspects of the case

Such discretion was not to be exercised to favour one or the other party and the power could not be exercised as matter of rule

If such power was used in routine manner it would tantamount to opening floodgates where parties might start calling any witness to fill in lacunas in their evidence

No justification existed under law or there was no compulsion on the part of Trial Court to summon additional witnesses during trial

High Court set aside the order passed by Trial Court

Revision was allowed in circumstances.