2020 M L D 1917
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, J
MUHAMMAD MOHID- DIN---Petitioner
versus
DIRECTOR GENERAL, NAB (Balochistan) and another ---Respondents
Constitutional Petition No.1386 of 2019, decided on 20th December, 2019.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 265- F & 540 ---Evidence for prosecution---Power to summon material witness or
examine persons present ---Scope ---Petitioner, a stranger to the proceedings, filed application
under Ss. 265- F & 540, Cr.P.C. for permission to record his statement as prosecution witness
or court witness ---Validity ---Subsection (2) of S.265- F, Cr.P.C. transpired that the court shall
ascertain from the public prosecutor the name of any person acquainted with the fac ts of the
case---Petitioner was neither complainant nor he had any nexus with the case; had not
provided any document or record of his statement before the investigating officer and had kept silent for five years ---Section 265 -F, Cr.P.C. provided that the complainant or accused
could approach the court for summoning/calling the person who was acquainted with the
facts of the case--- Court though had ample power to record statement of any person
irrespective of whether his statement under S.161, Cr.P.C. was r ecorded or not during
investigation, but that did not mean that a person could approach the court after a delay of several years for permission to record his statement as prosecution or court witness ---
Petitioner had not explained as to why he kept mum and who prevented him to co- operate
with the investigating officer during investigation--- Petitioner had a claim against the
accused for which he had to approach the court of civil jurisdiction--- Constitutional petition
was dismissed.
(b) Criminal Procedure Code (V of 1898) ---
----S. 540--- Power to summon material witness or examine persons present ---Purpose ---
Section 540, Cr.P.C. confers wide discretion upon the court to summon a person to record his statement--- Such discretion has to be exercised judiciousl y and for the ends of justice ---
Purpose of examination of witness must not be to fill the lacunas of the case ---Paramount
consideration is doing justice between the parties.
Syed Abuzar Haider and Riaz Mansoor Shah for Petitioner.
Rashid Zaib Golra, Spe cial Prosecutor, NAB for Respondents.
Date of hearing: 17th December, 2019.
ORDER
ABDUL HAMEED BALOCH, J .---The petitioner filed instant constitutional
petition with the prayer:
"It is accordingly respectfully prayed that keeping in view of the above submission,
fact and circumstances this Hon'ble Court may kindly be pleased an appropriate order and allowed to petitioner with permission to appear ( -) before the respondent No. 2
and record his statement as prosecution witness (PW) or Court witness (CW) and
brought on record material available with him in support of prosecution and also brought the case of corruption and corrupt, practices against the culprits, in the interest of justice."
2. Heard the learned counsel for the petitioner, Special Pro secutor NAB and also
perused the material on record. It appears from the record that the petitioner filed an application within the mandate of Section 265 -F Cr.P.C read with Section 540 Cr.P.C before
Accountability Court -I, Balochistan, Quetta (respondent No. 2), which was returned to the
petitioner without making any order thereon. As such the petitioner filed instant constitutional petition with above prayer. The respondent No.1 contested the petition by filing para -wise comments.
3. The record transpires that Reference bearing No. 4 of 2014 was filed by NAB
Authorities, in which statements of witnesses were recorded as per parawise comments a respondent No. 1. The case is at its final stage and fixed for defence evidence. The petitioner
filed application under Section 265- F Cr.P.C read with Section 540 Cr.P.C. It would be
appropriate to reproduce Section 265- F, Cr.P.C,
"265 -F. Evidence for prosecution. (1) If the accused does not plead guilty or the Court
in its discretion does not convict him on his plea , the Court shall proceed to hear the
complainant (if any) and take all such evidence as may be produced in support of the prosecution:
Provided that the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
(2) The Court shall ascertain from the public prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it.
(3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be re corded by the Court in writing
(4) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.
(5) If the accused puts in any written statement, the Court shall file it with the record.
(6) If the accused, or any one of several accused, says that he means to adduce
evidence, the Court shall call on the accused to enter on his defence and produce his evidence.
(7) If the accused or any one or several accused after entering on his defence, applies
to Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it conside rs that the application is made for the purpose of
vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing."
4. From the plain reading of subsection (2) of Section 265- F Cr.P.C it transpires that the
court s hall ascertain from the Public Prosecutor the name of any person acquainted with the
facts of the case. The petitioner is neither complainant, nor he has any nexus with the case. The Reference was filed in 2014, but the petitioner did not bother to provide any document
or record his statement before the NAB Investigating Officer. He kept silent for five years. Section 265 -F Cr.P.C provides that complainant or accused can approach the court for
summoning/calling the person who was acquainted with the facts of the case. Though the court has ample power to record statement or any person irrespective whether his statement under Section 161 Cr.P.C was recorded or not during investigation, but it is not meant that a person approached the court after such a long pe riod for permission to record his statement
as prosecution witness or court witness. The petitioner has not explained why he kept mum for such long period: who prevented him to co- operate with the Investigating Officer during
investigation.
5. The petitioner has invoked Section 540 Cr.P.C. For ready reference Section 540
Cr.P.C is reproduced hereunder:
"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.
6. Section 540 Cr.P.C conferred wide discretion on the court to summon a person to
record his statement. The discretion was to be exercised judiciously and for the ends of justice, but some restriction imposed. The purpose of examination is not to fill the lacunas of the case. The bare perusal of aforementioned provision of law clearly demonstrates is to do justice. The second part is obligatory. The paramount consideration is doing justice between the pa rties.
7. The legal notice dated 12th May, 2014 issued by learned counsel for the petitioner to
the officials of Education Department and Proprietor of Lashar Traders (accused in NAB Reference) reveals that the petitioner has a claim of Rs.92,27,479/ - on a ccount of supply
furniture in different Districts, payment whereof was to be made to the petitioner from the
CDRs of Lashar Traders.
8. The vengeance of the petitioner is personal.
9. The petitioner has the remedy of approaching the court of civil jurisdic tion for
redressal of his grievance.
For the foregoing reasons, the petitioner has failed to make out a case, thus the
petition is dismissed in limine.
SA/5/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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