2018 Y L R 2490
[Balochistan]
Before Nazeer Ahmed Langove, J
MUKHTIAR and another ---Petitioners
Versus
The STATE and another ---Respondents
Criminal Revision No.6 of 2017, decided on 25th April, 2017. Criminal Procedure Code (V of 1898) ---
----S. 540---Summoning of witnesses ---Trial Court allowed application filed under S. 540,
Cr.P.C. for summoning of additional witnesses ---Accused -petitioner contended that names of
additional witnesses had not been mentioned either in the challan or in the statements of
witnesses under S. 161, Cr.P.C. summoning of said witnesses, therefore, would be an attempt to
fill up the lacunae ---Validity ---Record showed that names of said witnesses did not appear in the
calendar of witnesses ---Neither the statements o f said witnesses, in circumstances were recorded
under S. 161, Cr.P.C. nor under S. 164 Cr.P.C.--- Such witnesses, in circumstances could not be
summoned---Order of Trial Court for allowing the application filed under S. 540, Cr.P.C. was set aside.
Shahba z Masih v. State 2007 SCMR 1631 rel.
Mrs. Shakar Baloch for Petitioner.
Yahya Baloch, D.P.G. for the Complainant.
Date of hearing: 24th March, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---The instant petition is directed against the Order
dated 15th Decem ber, 2016 passed by Additional Sessions Judge, Khuzdar whereby the
application filed by the respondent No. 2 under section 540, Cr.P.C, was allowed.
2. Brief facts of the case are that on 09.10.2015 complainant Ahmed Bakhsh lodged a report
with levies auth orities of Thana Ornach alleging therein that on the fateful day he received
information that his brother has died on account of a road accident. It was further alleged that on
receiving such information he rushed to DHQ Hospital Khuzdar and found the dead body of his
brother. After having buried the dead body and completion of formal affairs, he started inquiring about the death of his brother whereupon it transpired that in fact his brother had been murdered
after strangulating him by the accused persons Mukhtiar and Ghulam Mohammad on the seat of
vehicle instead of his death in a road accident as narrated by his companions, hence the registration of instant case, arrest of the accused. On completion of investigation, 'challan' of the case was submitted an d trial commenced. The prosecution, in order to prove its case produced
witnesses namely Ahmad Bakhsh, complainant, Dr. Javed, however important eye -witnesses of
this incident could not be produced by the prosecution with the excuse of their non- coming
forward on account of fear and threats advanced by the accused, hence the filing of application under section 540, Cr.P.C, with a list of witnesses for permission to produce them instead of those who are not appearing before the court for one reason or the ot her. The application so filed
by the complainant was contested by the learned counsel for the accused persons but the learned trial court eventually allowed the same, hence instant criminal revision petition.
3. The learned counsel for the petitioner argue d that the order impugned passed by the
learned trial court is contrary to law, facts and principles of natural Justice, as such is not sustainable under the law and is liable to be dismissed. He next argued that names of additional witnesses have not been mentioned either in the 'challan' or in the statements of witnesses under
Section 161, Cr.P.C., as such at this belated stage introducing them as witnesses would only be an attempt to fill up the lacunas. The trial court should not have been allowed the a pplication but
this important aspect of the case and legal proposition escaped notice of the learned trial court while passing the order impugned which caused miscarriage of justice to the petitioner.
On the other hand the learned State counsel opposed the petition by submitting that the
learned trial court was under legal obligation to allow witnesses whose evidence is/was necessary for a just and fair decision of the matter which is manifest from the second part of Section 540, Cr.P.C. He added that the accused persons/petitioners are involved in a case of
murder. Initially they concealed the facts by giving it the colour of road accident and then forced the eye -witnesses not to appear before the court, as such there was no other option with the
complaina nt except to file application for additional evidence which was rightly allowed by the
learned trial court.
4. I have heard the learned counsel for the parties and gone through the record with their
assistance which reflects that instant fateful incident t ook place on 9th October, 2015 with the
firsthand information of road accident and then murder by means of strangulation. Important witnesses of this case who had disclosed the actual episode of murder of complainant's brother to him have been extended thr eats by the accused, as such they are reluctant to appear before the
court and record statements.
5. Unfortunate and painful episode of this incident is that young man had been deprived of
the remaining years of his life by strangulating him. As per medica l report cause of death was
suffocation, but no one is ready to come forward and bring the truth before the court. As per
contention of the learned State counsel amongst other one of the reason for non- appearance of
the witnesses before the court for recor ding their statements is that the complainant is a poor and
helpless person and even still he is under threat, if so, while dealing with such kind of matters courts should remain more vigilant and careful to safe guard the rights of common people.
6. Adver ting to the merits of the case and revision petition in hand, it may be observed that
in similar circumstances the Hon'ble Supreme Court in case titled as Shahbaz Masih v. State
reported in 2007 SCMR 1631 held as under: --
"The contention of learned Deputy Prosecutor -General that court of criminal jurisdiction
enjoys plenary power to summon a person to give evidence as witness is undeniable. Court enjoys full powers to summon and examine any person as a witness at any stage of trial; rather it is imperative for the Court within terms of section 540, Cr.P.C. to summon and examine a person when evidence of such person appears to the Court essential to do the just attendance though not called as a witness. The underlying object, always, is to reach truth. Howeve r, the question in this case which requires our attention is whether a
Court can, in pursuance of section 265- F, Cr.P.C, summon and examine any person as a
witness when his statement under section 161, Cr.P.C. or under section 164, Cr.P.C. has not been rec orded and his name does not appear in the calendar of witnesses. Contention
of learned Deputy Prosecutor -General is that the Court can trials before the High Court
and the Court of Session, (Chapter XXII -A) introduced by Law Reforms Ordinance, 1972
(XII of 1972). Therefore, to ascertain true import and purpose of this provision of law, it
will be advantageous to read the same conjointly with other relevant provision namely sections 265- C, 265- D and section 265- E provided in the Chapter.
Subsection (1) of se ction 265- C envisages that in all cases instituted upon police report,
copies of documents, 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 occurrence and
the note recorded by him on recoveries made, if any, shall be supplied free of cost to the accused not later than seven days before the commencement of the trial; provi ded that, if
any part of a statement recorded under section 161 or 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. Subsection (2) of the said section, which, relates to cases instituted upon complaint in writing, inter alia, provides that the complainant shall state in the petition or complaint the substance of accusation, the names of his witnesses and the gist o f evidence which he is likely to
adduce at the trial, etc. and that the copies of complaint with documents and statements under section 200 or 202 shall be supplied free of cost to accused not later than seven days before the commencement of the trial. The next immediate provisions appearing in
this Chapter are sections 265- D and 265- E. Cr.P.C. which, respectively relate to framing
of charge and recording of plea. After that comes section 265- F, Cr.P.C., subsection (1)
whereof envisages that if the accused does not plead guilty or the court 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 Court shall not be bound to hear any pe rson as complainant in any case in which the complaint made by
a Court. Subsection (2) of the said Section provides that the Court shall ascertain from the public prosecutor or, as the case may, 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. Subsection (3) of said Section, envisages that the Court may refuse to summon witness, if it is of the opinion that such witness is being called for the purpose of vexation or delay or defeating
the ends of justice. Then subsection (4) provides that 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. Thus, reading of above
provision of law, as a whole, reflects that the object of section 265- F appears to be that
where accused does not plead guilty or he is not convicted on his plea the Court shall issue summons to those persons whom the Public Prosecutor or complainant consider to
be acquainted with the facts of the case and be able to give evidence for prosecution so
that their evidence is taken by the Court. Nothing is provided in the sa id Section that it
shall be at the discretion of the Public Prosecutor or the complainant, as the case may be,
to name any such person whose statement under section 161, Cr.P.C. or 164, Cr.P.C. has not been recorded and whose name does not appear in the ca lendar of witnesses. Had it
been so, the very purpose of section 265- C, Cr.P.C. requiring obligatory supply of
documents mentioned therein, well in advance, apparently with no purpose other than to enable the accused to know the prosecution case and meet t he charges, if framed, would
lapse into unconscionable consequences".
In view of above re -produced observations of the Hon'ble Supreme Court, I am of the
considered opinion that the trial Court had no jurisdiction to allow the application filed by the complainant under section 540, Cr.P.C. for producing the P.Ws. whose statement under section
161, Cr.P.C. or 164, Cr.P.C. have not been recorded and whose name does not appear in the calendar of witnesses.
For the fore -going reasons, Revision Petition No.6 of 2017 is allowed and the order dated
15th December, 2016 passed by Additional Sessions Judge, Khuzdar whereby the application filed by the respondent No.2 under section 540, Cr.P.C., was allowed is set a side.
JK/71/Bal. Revision allowed.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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