Abdul Bari V. Amir Muhammad and 3 others,

2020 M L D 1798 [Balochistan] Before Rozi Khan Barrech, J ABDUL BARI ---Petitioner versus AMIR MUHAMMAD and 3 others ---Respondents Criminal Revision No.23 of 2020, decided on 16th March, 2020. (a) Illegal Dispossession Act (XI of 2005) --- ----Ss. 3, 4 & 5--- Criminal Procedure Code (V of 1898), S. 540---Illegal dispossession--- Summoning of witness ---Scope ---Petitioner filed application under S. 540, Cr.P.C., for calling the concerned SHO to tender the proposed document as a witness, which application was dismissed by the Trial Court ---Validity ---If it appeared to the court that a person's evidence was essential to the just decision of the case then there was no discretion to prevent such a person from being examined--- Power under S. 540, Cr.P .C., to summon a witness might be exercised either by suo motu or on an application--- Person who might not have been examined at the time of investigation or whose name was not included in the calendar of witnesses or in the challan could be summoned under S. 540, Cr.P.C.--- In the present case the parties were in dispute over the property, which they claimed to be the owners of on account of petitioners alleged dispossession from the same ---Petitioner filed a complaint under Ss. 3, 4 and 5 of the Illegal Di spossession Act, 2005 against the respondents for his alleged dispossession--- No doubt, the document which the petitioner wanted to place on record i.e. report of SHO dated 16.12.2019 was not filed at the time of filing the complaint --- Perusal of the same prima -facie revealed that allegedly the accused/respondents tried to encroach the unsettled property and the petitioner intended to establish the conduct of the respondents as land grabbers through the said document ---Trial Court did not make an effort to satisfy itself or to consider the two essential ingredients; firstly, whether the proposed person was a material witness and, secondly, whether he was essential for a just decision of the case---Trial Court was required to take the entire material and the circumstances of the case into consideration, so as to form an opinion whether summoning of the proposed witness was essential for a just decision of the case---Trial court, while passing the impugned order, did not consider the principles and law laid dow n for deciding applications under S. 540, Cr.P.C and thereby failed to exercise jurisdiction vested in it, besides the illegality and material irregularity ---Grounds for dismissing the application under S. 540, Cr.P.C., were neither tenable in law nor in c onsonance with the principles enunciated in that regard--- Application was allowed by the High Court setting aside the impugned order and Trial Court was directed to call the proposed witness to place the said document on record according to law. Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474 and Shahbaz Masih v. The State 2007 SCMR 1631 rel. (b) Criminal Procedure Code (V of 1898) --- ----S. 540--- Summoning of witness ---Scope ---Most critical and fundamental considerations for a court while deci ding such an application were twofold; firstly, it was to form an opinion as to whether the person was a material witness and secondly, that examining such a witness was essential for a just decision of the case ---Timing of summoning such a person to be examined as a witness was irrelevant, provided the court was satisfied that the evidence would be essential to meet the ends of justice and for a just decision of the case ---Likewise, it was also not a bar to examine such a material witness if, during the in vestigations, his/her statement was not recorded under S. 161, Cr.P.C., or he did not appear in the calendar of witnesses. Syed Manzoor Shah for Petitioner. Ajmal Khan Kakar and Sahibzada Nisar Ahmed for Respondents Nos.1 and 2. Shumaila Iftikhar and Wajahat Khan Ghaznvai, State Counsel for PG/Respondents Nos.3 and 4. Date of hearing: 13th March, 2020. JUDGMENT ROZI KHAN BARRECH, J. ---Through the instant revision petition, the petitioner has called in question the validity of the order dated 9.02.2020 (hereinafter "the impugned Order") passed by the learned Additional Sessions Judge, Kuchlak, (hereinafter "the trial Court") whereby the application under section 540, Cr.P.C., filed by the applicant/petitioner was dismissed.

2. Brief facts of the case are that the petitioner filed a complaint before the trial Court under sections 3, 4 and 5 of the Illegal Dispossession Act, 2005 (hereinaft er "the Act") against respondents Nos. 1 and 2 on account of illegally dispossessing him from his immovable property.

3. During trial, the petitioner also filed an application under section 540, Cr.P.C. for calling the concerned SHO to tender the proposed document as a witness.

4. After hearing arguments of the learned counsel for the parties, the learned trial Court dismissed the application under section 540, Cr.P.C., on 19.02.2020. Hence this petition.

5. I have heard the learned counsel for the parties and have gone through the record with their able assistance.

6. Section 540 of the Cr.P.C. vests the power in a court to summon a material witness or examine a person present. The section provides that this power of the Court may be exercised at 'any stag e' of an inquiry, trial or other proceedings under the Criminal Procedure Code. This power may be exercised by summoning any person as a witness, or examining any person in attendance not summoned as a witness, or to recall and re -examine any person alread y examined. The section can be divided into two parts. The first part vests a discretion while the second part places a mandatory obligation on the court if the pre -requisites are satisfied. If it appears to the court that a person's evidence is essential to the just decision of the case, then there is no discretion to prevent such a person from being examined. The power under section 540 of the Cr.P.C. to summon a witness may either be exercised suo motu or on an application. Reliance in this regard is pla ced on a case titled as Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474 and Shahbaz Masih v. The State 2007 SCMR 1631.

7. In the light of the above, it is obvious that the power under section 540 of the Cr.P.C. can either be exercised by the Court suo motu or on an application of one of the parties to the trial at any stage. A person who may not have been examined at the time of investigation, or whose name is not included in the calendar of witnesses or in the Challan, could be summoned under se ction 540 of the Cr.P.C. The most critical and fundamental considerations for a court while deciding such an application are twofold; firstly, it is to form an opinion as to whether the person is a material witness and, secondly, that examining such a witn ess is essential for a just decision of the case. The timing of summoning such a person to be examined as a witness is irrelevant, provided the Court is satisfied that the evidence would be essential to meet the ends of justice and for a just decision of t he case. Likewise, it is also not a bar to examine such a material witness if, during the investigations, his/her statement was not recorded under section 161, Cr.P.C., or does not appear in the calendar of witnesses.

8. Similarly, section 265 -F, Cr.P.C, i s quite comprehensive. This section has been added in the Code notwithstanding the already existing section 540, Cr.P.C. in order to ensure the concept of a fair trial and in order to achieve this purpose, equal opportunity has been provided to both, the a ccused as well as the prosecution for summoning the evidence. Subsection (7) of section 265- F, Cr.P.C. grants even a right to accused to apply for summoning any witness and production of documents; therefore, balance has to be struck between the parties. S ection 265 -F, Cr.P.C. caters for such situation where the Court may ascertain from complainant the name of any person likely to be acquainted with the facts of the case and to be able to give evidence for prosecution. This section does not provide specifically that only those witnesses can be examined whose statements have been recorded under section 161, Cr.P.C. or their names have been mentioned in the cha Ian in column of witnesses. The intent of the legislature is very much clear from the language of the entire section that the Court can examine any person who is acquainted with the facts of the case, therefore, the Court is not bound to record the statements of only those witnesses who are listed in the calendar of witnesses only, but in order to arrive at a just conclusion, the Court can call any person likely to be acquainted with the facts of the case after ascertaining it from the public prosecutor or the complainant subject to the general provisions that summoning of any such witness does not cause delay or defeat the ends of justice. It would be the second option of the Court as to what extent it considers or relies on the statement of such witness.

9. In the instant case the parties are in dispute over the property, which they claim to be the owner s of, on account of petitioners alleged dispossession from the same. The petitioner filed a complaint under sections 3, 4 and 5 of the Act against the private respondents for his alleged dispossession. No doubt, the document which the petitioner wanted to place on record i.e. report of SHO PS Kuchlak dated 16.12.2019 was not filed at the time of filing the complaint, but perusal of the same prima- facie reveals that allegedly the accused/respondents tried to encroach the unsettled property and the petitioner intended to establish the conduct of the private respondents as land grabbers through the said document.

10. In my humble view, the trial Court while dismissing the application filed by the petitioner misinterpreted the provisions of section 540, Cr.P.C. and failed to take relevant factors into consideration. The factors weighed by the trial Court are not germane for the purposes of exercising powers and jurisdiction under section 540, Cr.P.C. The learned trial Court dismissed the application under section 540, Cr.P.C. mainly on the ground that "placing of such report on the record would not help for just and proper decision of the case, rather it will delay the case regarding which the Hon'ble High Court of Balochistan has already given directions in Crimi nal Revision No.106 of 2019 that the case be disposed of within short possible time".

11. It is obvious that the learned trial Court did not make an effort to satisfy itself or to consider the two essential ingredients; firstly, whether the person proposed was a material witness and, secondly, whether he was essential for a just decision of the case. The learned Court was required to take the entire material and the circumstances of the case into consideration, so as to form an opinion whether summoning of the proposed witness was essential for a just decision of the case. The trial Court, while passing the impugned order, did not consider the principles and law laid down for deciding applications under section 540, Cr.P.C. and thereby failed to exercise jur isdiction vested in it, besides the illegality and material irregularity as highlighted above. The grounds for dismissing the application under section 540, Cr.P.C. are neither tenable in law nor in consonance with the principles enunciated in this regard, particularly by the august Supreme Court. For what has been discussed above, the instant petition is allowed and the impugned order dated 19.02.2020 passed by learned Additional Sessions Judge, Kuchlak is set aside and the learned trial Court is hereby directed to call the proposed witness to place the said document on record according to law. The petition is allowed. JK/107/Bal Petition allowed.