2019 M L D 2048
[Balochistan]
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
The STATE through Regional Director Anti-Narcotic Force Balochistan---Appellant
Versus
ABDUL WAHAB and 11 others---Respondents
Criminal Appeal No.238 of 2019, decided on 9th August, 2019.
(a) Criminal Procedure Code (V of 1898)---
----S. 540---Control of Narcotic Substances Act (XXV of 1997), Preamble---Power to summon material
witness or examine persons present---Scope---Appellant was aggrieved of trial court's order whereby his
application under S. 540, Cr.P.C. for re-summoning Investigation Officer to submit reports of Federal
Government Analyst containing the detail of analysis process/protocol was dismissed---Validity---Trial
remained pending for two years; evidence of prosecution was complete; statement of accused under S.
342, Cr.P.C. was recorded and the case was fixed for final arguments when the application was filed---
Reports of Federal Government Analyst were prepared after two years from the date of framing of charge
upon the accused---Accused did not know about the reports at the time of framing of charge and
recording of his statement under S. 342, Cr.P.C.---Accused have had to be confronted with all the
evidence deposed by the witnesses against him and all the duly exhibited documents, otherwise non-
exhibited documents could not be used against him for the purpose of conviction---Complainant, at
belated stage, could not be permitted to examine or place on record any document in the shape of detail
of process/protocols through proposed witnesses, which description was not mentioned in the calender of
witnesses---Court while exercising power under S. 540, Cr.P.C. did not assume the role of prosecutor nor
the said power could be used to fill the lacunas of the prosecution case, as the court was supposed to act
as arbitrator or judge---Appeal was dismissed. (b) Criminal Procedure Code (V of 1898)---
----S. 540---Interpretation of S. 540, Cr.P.C.---Power to summon material witness or examine persons
present---Scope---Provisions contained in S. 540, Cr.P.C. can be bifurcated into two parts, the first part is
discretionary in nature, wherein the summoning of a witness depends upon the sole discretion of the
court, while the second part is mandatory, and leaves the court with no discretion to refuse to summon a
witness, as his evidence is material and essential for a just and fair decision of the case.
(c) Criminal Procedure Code (V of 1898)---
---S. 540---"Power to summon material witness or examine persons present"---Purpose---Power
conferred upon the court, under the provisions of S.540, Cr.P.C. can be used to find out the truth but
cannot be exercised to fill up the gaps and lacuna left by either party.
Muhammad Khan v. The State 2003 PCr.LJ 1778 ref.
(d) Criminal Procedure Code (V of 1898)---
----S. 265-C---Supply of statements and documents to the accused---Scope---Non supply of essential
documents before framing of charge vitiates the trial. [p. 2053] F
Nadeem Ahmed Khan v. The State 2007 PCr.LJ 233 ref.
Shamsuddin Achakzai, Special Prosecutor, ANF for Appellant/ State.
Date of hearing: 15th July, 2019.
JUDGMENT2019 M L D 2048 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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ROZI KHAN BARRECH, J.--- Through instant appeal filed under Section 48 of Control of Narcotic
Substances Act, 1997 (the "CNS Act") the appellant (state) through Regional Director ANF has
challenged the validity of order dated 24.06.2019 ("impugned order") passed by learned Judge Special
Court CNS, Balochistan Quetta ("trial court") whereby the trial court has turned down the application
filed by the appellant under Section 540, Cr.P.C. for examining the witnesses and placing documents on
record.
2. Briefly stated facts of the case are that ANF authorities registered FIR Nos. 06, 15, 16, 19, 21, 22,
23, 28 and 56 of 2017 of Police Station ANF Quetta registered against different accused persons. After
completion of investigation, challans were submitted before the trial court. During trial the prosecution
examined all the witnesses. Thereafter statements of accused were recorded under Section 342, Cr.P.C.
and the case was adjourned for final arguments. Meanwhile the learned Special Prosecutor ANF filed
separate applications along with incomplete challans in the above mentioned cases with prayer to call for
the I.O. to submit the reports of the Federal Government Analyst (FGA) containing the detail of analysis
process/protocol. After hearing the arguments of learned counsel for the parties the trial court dismissed
the applications through common order dated 24.06.2019 (impugned herein), hence this appeal.
3. We have heard the learned Special Prosecutor ANF in the light of the law and facts on record.
4. The provisions contained in section 540, Cr.P.C. confers jurisdiction upon the Court to summon
material witnesses which reads as under;
"540. Power to summon material witness or examine persons present---Any Court may, at any stage of
any inquiry, trial or other proceeding under this Code, summon any person as a witness, or
examine any person in attendance, though not summoned as a witness, or recall and re examine
any person already examined; and the Court shall summon and examine or recall and re-examine
any such person if his evidence appears to it essential to the just decision of the case."
The provisions contained in section 540, Cr.P.C. can be bifurcated into two parts, first part is
discretionary in nature, whereas the summoning of a witness depends upon the sole discretion of the
Court, while the second part is mandatory, and left the Court with no discretion to refuse to summon a
witness, whereas his evidence is material and essential for just and fair decision of a criminal case.
5. The powers conferred upon by the Court, under the provisions contained in section 540, Cr.P.C,
could be used to find out the truth but could not be exercised for filling up the gaps and lacuna left by
either party. Reliance can be placed on the case of "Muhammad Afzal v. The State" (2001 PCr.LJ 72) as
well as "Muhammad Khan v. The State" (2003 PCr.LJ 1778).
6. Trial of an accused is strictly conducted in accordance with the mandatory provisions contained in
the Code and not only the Court but also parties thereto, shall observe the mode and the manner which
has been enumerated therein the Code for every action and act.
7. It is also mandatory upon the prosecution to submit before the Court all the statements of P.Ws
recorded under Section 161, Cr.P.C. and documents on which it would place reliance, the copies thereof
shall be provided to the accused before framing of charge, as contained in section 265-C, Cr.P.C. which
reads as under;
"265-C. Supply of statements and documents to accused.---(1) In all cases instituted upon police
report, copies of the following documents shall be supplied free of cost to the accused not later
than seven days before the commencement of the trial, namely;
(a) the first information report;
(b) the police report;
(c) the statements of all witnesses recorded under sections 161 and 164, and
(d) the inspection note recorded by an Investigating Officer on his first visit to the place of occurrence2019 M L D 2048 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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and the note recorded by him on recoveries made, if any:
Provided that, if any part of a statement recorded under section 161 or section 164 is such that its
disclosure to the accused would be inexpedient in the public interest, such part of the statement
shall be excluded from the copy of the statement furnished to the accused.
(2) In all cases instituted upon a complaint in writing;
(a) the complainant shall;
(i) state in the petition of complaint the substance of the accusation, the names of his witnesses and
the gist of evidence which he is likely to adduce at the trial, and
(ii) within three days of the orders of the Court under section 204 for issue of process to the accused,
file in the Court for supply to the accused, as many copies of the complaint and any other
document which he has filed with his complaint as the number of the accused; and
(iii) copies of the complaint and any other documents which the complainant has filed therewith and
the statements under section 200 or section 202 shall be supplied free of cost to the accused not
later than seven days before the commencement of the trial."
8. Admittedly the case pertains to the year 2017 wherein the trial remained pending for two years and
evidence of prosecution stood completed, thereafter the case was adjourned for recording the statement
of accused under section 342, Cr.P.C. and now the case is fixed for final arguments. The application
under Section 540, Cr.P.C. was filed by the Regional Director ANF to exhibit the FGA's report in respect
of protocols/process when the case was fixed for final arguments. It is the prosecution's case that after
recovery of narcotics from the accused persons, the ANF authorities prepared separate sealed parcels for
chemical analysis. The same were sent to Officer Incharge Federal Narcotics Testing Laboratory Quetta
on 17th May 2017 in respect of FIR No. 15 of 2017, 25th May 2017 in respect of FIR No. 16 of 2017 and
21 June 2017 in respect of FIR No. 19 of 2017, whereafter the Federal Narcotics Testing Laboratory
Quetta prepared the reports of all the cases and sent the same to the trial court on different dates i.e.
23.05.2017, 9.6.2017, 31.8.2017 and 22.05.2017. The Investigating Officer submitted the challans before
the trial court along with the above reports of the FGA as well as the list of witnesses in the calendar of
challan and during trial the prosecution has produced/exhibited FGA reports through witnesses
(investigating officers of the cases).
While supplying the documents of the cases, the said reports as well as statements of witnesses
recorded under Section 161, Cr.P.C. have been provided to accused and the defense counsel who
prepared the cases of the accused in view of the above documents.
While recording statements of the accused under Section 342, Cr.P.C. the trial court also put a
question to the accused in respect of the above reports. Subsequently the prosecution obtained the details
of process/protocols from the Federal Narcotics Testing Laboratory Quetta on 01.03.2019, 13.02.2019,
14.02.2019, 19.2.2019 and 23.02.2019 and submitted the above reports through supplementary challans.
9. The above documents were prepared after two years from date of framing of the charge upon the
accused and obviously while framing the charge and recording the statements of the accused under
Section 342, Cr.P.C. the accused did not know about the said documents.
10. Likewise, the accused have had to be confronted with all the evidence deposed by witnesses
against him and all the duly exhibited documents, otherwise could not be used against the accused in
order to convict him on such evidence. It may be seen that when copy of the statement of the witnesses
and the documents are to be exhibited by any witnesses the copies of same had not been provided to the
accused at the commencement of trial before framing of the charge, thus at this belated stage the
complainant could not be permitted to examine and place on record any document in shape of
second/detail of process/protocols from the Federal Narcotics Testing Laboratory, Quetta, through the
proposed witnesses, which description were neither mentioned in the calendar of witnesses in previous2019 M L D 2048 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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challans nor provided to the accused before framing of charge and at the time of recording their
statements under Section 342, Cr.P.C. The said documents were prepared after submission of the report
under Section 173, Cr.P.C. so at this stage of trial it would not be fair to place on record a document,
authenticity of which is still to be determined just for the benefit of the prosecution. Non-supply of such
essential documents before framing of charge vitiate the whole trial. Reliance is made in this respect on
the case of Nadeem Ahmed Khan v. The State (2007 PCr.LJ 233).
11. The Court while exercising powers under section 540, Cr.P.C. should not assume the role of a
prosecutor nor said power can be used to fill in the lacunas of the prosecution case, as the Court is
supposed to act as arbiter or Judge and therefore, neither a party nor an investigator is expected to fill in
the lacunas left by the party.
For the reasons given herein above, the appeal is accordingly dismissed in limine.
SA/74/Bal. Appeal dismissed.
;2019 M L D 2048 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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