2013 P Cr. L J 147
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
The STATE through Additional Prosecutor -General ---Petitioner
Versus
NAWABZADA SHAH ZAIN BUGTI and 4 others ---Respondents
Criminal Revision No.92 of 2012, decided on 6th Septe mber, 2012.
Criminal Procedure Code (V of 1898) ---
----S. 540 ---Application for summoning and producing witnesses as additional evidence ---
Prosecution in its application filed under S.540, Cr.P.C. requested that prosecution witness,
who was Police Offi cer, having since died, other two eye -witnesses, who were Army
Officers, could be allowed to be produced as additional evidence ---Trial Court vide
impugned order declined that request, holding, firstly, that summoning of intended witnesses,
did not seem es sential as such kind of evidence was already available on the record and;
secondly that if statements of said intended witnesses were so necessary, why prosecution
failed to associate them as witnesses in calendar of witnesses ---Validity ---Section 540,
Cr.P.C., empowered a court to call for any person as witness, who appeared to be essential to
just decision of the case ---Said power/descretion was to be exercised by the court judiciously,
keeping in view the facts and circumstances of the case ---Solitary ey e-witness of the
prosecution, having died, it would be just and appropriate to allow the prosecution to produce
remaining eye -witnesses ---Prosecution though was negligent but for the purpose to arrive at
just decision of the case some evidence must come on record, which would be helpful for
both the parties ---Impugned order was set aside and prosecution was allowed to produce
intended witnesses, with direction to produce said witnesses before the Trial Court without
any delay.
Mst. Munawar Sultana v. Mu hammad Shafique alias Mithu 2008 PCr.LJ 1749; 2006
YLR 3107; 1998 SCMR 325; Dildar v. The State PLD 2001 SC 384 and Painda Gul v. State
1987 SCMR 886 ref.
Muhammad Wassay Tareen, Prosecutor -General and Ms. Sarwat Hina Additional
Prosecutor -General for P etitioner.
W.N. Kohli, Sohail Rajput and Jameel Ramzan for Respondents.
Date of hearing: 3rd August, 2012.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Through instant petition order dated 15th
June, 2012 of Additional Sessions Judge -V, Quetta, was q uestioned on grounds that the two
persons namely Colonel Faisal, and Major Tariq Mahmood, who were intended to be
produced as witnesses in additional evidence, were eye -witnesses of the occasion. Further,
both of them participated in the process of effecti ng recoveries of the alleged arms, and
ammunition from possession of the accused persons. Despite the fact that their names were
not listed in challan, but their (witnesses) presence at the place of incident was evident from
the papers on record. It was co ntended that keeping in view the facts, and material on record
both the persons may have been allowed to appear as witnesses. But, the trial Court failed to
consider this material aspect of the case and arrived to a contrary decision. Further, the trial
court was wrong while holding that the application under section 540, Criminal Procedure
Code (Cr.P.C.) was moved with delay, therefore, out of consideration. It was further
contended that section 265 -C, Cr.P.C. had no nexus with the provisions of section 54 0,
Cr.P.C. as both the sections were to be dealt independently, but a contrary view was taken,
which was an error on part of the court below. It was prayed that the impugned order
be set aside, and the prosecution be allowed to produce the additional evidence.
2. The learned counsel for the parties argued the matter at length. It was argument of the
learned Prosecutor -General (PG) that under section 540, Cr.P.C. the court has ample power to
call any person as witness during course of trial. But as far as sections 265 -C and 265 -F,
Cr.P.C. were concerned, both were not attracted in case in hand. It was further his argument
that both the persons, who were intended to be produced, were eye -witnesses of the occasion,
whereby the arms, and a mmunition were recovered from possession of the accused persons.
Therefore, in view of the stated facts their evidence was of much importance, and for just
decision of the case. The learned PG placed reliance on: --
Mst. Munawar Sultana v. Muhammad Shafi que alias Mithu
2008 PCr.LJ 1749
(No such reference found)
2006 YLR 3107
(No such reference found)
1998 SCMR 325
3. In reply the learned counsel for the respondents strongly controverted the arguments
of the learned PG. It was his argument that the fact was very much evident from the contents
of the F.I.R., that no inventory memo was prepared about effecting of recovery at the relevant
time, nor the alleged recovered articles were taken into custody being case property by the
Police. It was further his argument that the search, of any, was conducted, failed to fulfil the
legal requirement as provided under section 103(2), Cr.P.C. The learned counsel also referred
to section 173(5), Cr.P.C., with assertion that there was non -compliance of the same, wh ich
was fatal for the case of the prosecution. The learned counsel further argued that both these
persons were not mentioned as witnesses even in the supplementary Police
Report/Supplementary Challan, therefore, they cannot be allowed to be produced as
witnesses, being an afterthought and to fill up the lacuna. While making reference to sections
265-C and 265 -F, Cr.P.C. it was argument of the learned counsel that if at this stage the
prosecution be allowed to produce these witnesses it would amount to depriving the
respondents from their right of defence. In addition the record failed to disclose preparation
of separate seizure memo to establish that the recovered articles were taken into custody by
the police. The learned counsel placed reliance on: --
(No such reference found)
2006 YLR 3107
Dildar v. The State
2001 PLD SC 384
Painda Gul v. State
SCMR 1987 page 886
4. In reply thereto it was contention of the learned PG that inventory made in respect of
the recovered articles wa s already on record, but failed to get attention of the trial Court.
Further, the provisions of section 103, Cr.P.C. were not applicable in cases where
recoveries were effected from running vehicles. Further, trial Court declined the
production of recovered articles without considering the relevant facts and also
overlooked the relevant law. The learned Prosecutor -General concluded that the persons
intended to be produced as witnesses, were surely not cited in the chall an, that's why the
application was moved for their production as additional evidence.
5. The facts as appeared from the papers annexed with the instant petition that F.I.R.
No.139 of 2010. Police Station Airport, District Quetta, dated 22nd December, 201 0, was
registered in respect of an occurrence whereby recovery of illegal arms, and ammunition in
huge quantity were alleged against the respondents, who were nominated as the accused
persons, and were taken into custody at the site. It further appeared th at the recovered arms,
and ammunition were taken into custody by Frontier Corps at the site, and a list of the
recovered articles, and vehicles was prepared at the relevant time. It is further apparent from
the record that in pursuance of this F.I.R. sixte en (16) separate Police Reports/Challans were
submitted against all the accused persons, which are pending before the trial Court. On
receiving of the challans, and framing of the charge, the trial commenced, and prosecution
witnesses were called, and stat ements were recorded. But during course an application under
the provisions of section 540, Cr.P.C. was moved by the prosecution with a request that the
prosecution witness namely Fareedullah DSP had since been died, therefore, the other eye -
witnesses of t he occurrence namely Colonel Faisal, and Major Tariq Mahmood, employees of
Frontier Corps, were allowed to be produced. This application was strongly contested by the
respondents. The trial Court through order dated 15th June, 2012 declined the request. Th e
trial Court write an elaborate order with reference to the verdict of the superior courts,
thereby arrived to the conclusion that the summoning of additional witnesses not seemed
essential as same kind of evidence already available on record. Further, he ld that if statements
were so necessary why the prosecution failed to associate them as witnesses, nor justification
was shown for the purpose. Feeling aggrieved instant petition had been filed.
6. Section 540, Cr.P.C. empowered a court to call for any p erson as witness, who
appears to he essential to just decision of the case. Re -production of the section will be
helpful: --
"540 Cr.P.C. Power to summon material witness or examine persons present. Any
Court may at any stage of any inquiry, trial or oth er 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."
7. It is evident from the plain reading of the section that it empowered a court to
summon any person as a witness, or may examine any person in attendance. Further, p rovide
power of recalling, and re -examining any person already examined. Both these powers are
available to the court during pendency of trial, inquiry or other proceedings. Therefore, a
discretion vests with the court, which is to be exercised judiciously . But it is to be observed
that the last portion of this section provides an obligation to the court, which is mandatory in
nature, as it is with a "Shall". Therefore, a court has to summon and examine, re -call and re -
examine any person. But subject to the fact that evidence of such person appears to be
essential to the just decision of the case. Now it is the party, who wants to produce a person,
not cited in calendar of witnesses annexed with the Police Report/challan, has to show the
nature of the eviden ce, and the purpose behind it, whereby the court would exercise its
discretion either accepting or refusing the request, but within the ambit as provided in the
section.
8. In present case the contents of F.I.R. and the attached documents showed presence of
both Police, and Frontier Corps personnel at the site. The names of several persons noted
down in contents of the F.I.R., while the Police Reports/Citations, thereafter submitted, also
described names of several persons as witnesses. The perusal reveal s that only one
Fareedullah DSP was cited as eye -witness, while the remaining were described as witnesses
of recovery, and preparation of seizure memos. There was no explanation that why the
remaining persons describing as eye -witnesses were not included i n the calendar of
witnesses. The carelessness, and negligence on the part of the prosecution is very much
evident, which is highly objectionable.
9. Though trial Court has rightly held that no unfettered powers are available to the trial
Court for callin g a person, and examining him as a witness. But a discretion lies with the
court, which is to be exercised keeping in view the facts, and circumstances of each case,
within the ambit of section 540, Cr.P.C. Further, it will not be out of place to note down that
subsection (5) of section 173, Cr.P.C. as referred by the learned counsel for the respondents is
not attracted in present case. Because, the subsection exempted "Public servants" from such
appearance as required therein. The intended witnesses in fac t belonged to Frontier Corps,
thus covered by term "public servant". As far as violation of provisions of section 265 -C and
265-F, Cr.P.C., as agitated by the learned counsel for the respondents, is concerned both the
sections pertain to supply of statemen ts, and documents to the accused person, and
production of evidence of prosecution. It was contention of the learned counsel for the
respondents that if at this stage additional evidence would be allowed it would effect their
right of defence. Though the p urpose of supply of statements, and documents to an accused
person, in compliance of section 265 -C, Cr.P.C. is to get acquainted him with the nature of
the case against him, and enable him to establish his defence. While section 265 -F, Cr.P.C.
described th e procedure required to be adopted by the court for calling for evidence of
prosecution and also of defence. But presence of these sections in no way place any embargo
on power of the court available to it under provisions of section 540, Cr.P.C. Therefore , the
request for production of additional evidence is to be dealt under section 540, Cr.P.C., and
while dealing the same, section 265 -C, or section 265 -F, Cr.P.C. will be of no effect, neither
the right of defence would be effected. The argument of the le arned counsel to said extent
does not have the force.
10. In present case the prosecution wanted to produce additional evidence in shape of two
witnesses namely Colonel Faisal and Major Tariq Mahmood, with contention that the only
eye-witness cited in li st had since been died. This fact of death is not controverted from the
other side. Further, it is observed that the name of one of the intended witnesses namely
Major or Tariq Mahmood appeared from the contents of the F.I.R. The name of other person
Colon el Faisal nowhere appeared. But apart from these facts this fact is very much apparent
from the papers available on record that both the forces i.e. Police and Frontier Corps acted
jointly, and personnel belonging to both the forces were present at the sit e, and witnessed the
occasion. As the solitary eye -witness had been died, therefore, it would be just and
appropriate to allow the prosecution to produce remaining eye -witnesses. Though there was
negligence on part of the prosecution, but for the purpose t o arrive at just decision of the case
some evidence must come on record, it will be helpful for both the parties. But as far as
evidentiary value is concerned, no findings are required to be given at this stage. Because it is
the trial Court, who has to as sess the evidentiary value of the statements recorded, and the
material produced during course of trial, while making decision on completion of the trial.
11. In view of the above discussion the impugned order dated 15th June, 2012 is hereby
set aside. T he prosecution is allowed to produced Colonel Faisal, and Major Tariq Mahmood
as witnesses. The prosecution is directed to produce both the persons before the trial Court
without any delay.
The petition stand disposed of in above terms.
HBT/98/Q Order accordingly.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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