Khalid Hussain vs The State etc.

Stereo H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

Criminal Revision No. 828 of 2012

Khalid Hussain. The State etc.

JUDGMENT

Date of hearing _______31.5.2013__________________________ Appellant by: Ch. Zulfiqar Ahmad Rawan, Advocate for the petitioner.

Respondent by: Mr. Ahmad Raza Raja, Advocate for respondent No.2.

Mr. Nasir Mahmood Sial, Deputy District Public Prosecutor with Khawar Abbas, ASI with record.

Aalia Neelum, J:- Through this revision petition, the petitioner has challenged the legality of order dated 22.5.2012 passed by the learned Special Judge Anti Corruption Punjab, Lahore, whereby the application filed by the complainant/respondent No.2 for summoning of Saif Ullah, Bashir Ahmed and Nazir Ahmed as prosecution witness, was allowed.

2.The revision petition filed by the petitioner was admitted to regular hearing by this court vide order dated 24.01.2013, whereby, the operation of the impugned order dated 22.5.2012 was suspended.

3.In support of this petition, the learned counsel for the petitioner has contended that the impugned order is totally illegal and unlawful, inasmuch as, PW-1/complainant during her examination-in-chief had not mentioned names of said witnesses

nor she stated that she produced them before the investigating officer and they recorded their statements under section 161 Cr.P.C nor their names are mentioned in the report under section 173 Cr.P.C, nor any gist of their statements were provided to the petitioner/accused as per section 265-F Cr.P.C. He further adds that if this practice is allowed it will amount to opening floodgates where parties might start summoning the witnesses to fill in lacunas in their cases who had not joined investigation in any manner i.e. as witnesses or appeared to support the version of the complainant and the learned trial court failed to take notice of all these aspects and prayed that impugned order be set aside being illegal.

4.The learned counsel for respondent No.2 submits that the application of respondent No.1 under section 540 Cr.P.C has rightly been accepted by the learned trial court, for summoning of Saif Ullah, Bashir Ahmed and Nazir Ahmed as prosecution witnesses. Further adds that said witnesses got recorded their statements under section 161 Cr.P.C before the investigating officer and investigating officer deliberately withheld statements of the said witnesses nor said statements are available in police file. Further contends that this petition is not maintainable and the same is liable to be dismissed.

5.Learned Law Officer after going through the record of investigation submits that application for summoning of above named witnesses cannot be allowed as neither name of these witnesses were mentioned in F.I.R. nor they ever joined investigation, even their names are not mentioned in case dairies as persons appearing from prosecution side nor their names are mentioned in the calendar of witnesses.

6.I have carefully considered the submissions of the learned counsels for the parties and have minutely perused the whole record.

7.At the commencement of trial, charge was framed by the learned Special Judge Anti Corruption Punjab, Lahore, against the accused persons to which they pleaded not guilty and claimed trial, thereafter, then section 265-F (2) and (3), Cr.P.C come into existence, which is reproduced as under:-

265-F. Evidence for prosecution.

(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 recorded by the Court in writing.

8.After that the prosecution produced as many as three witnesses including complainant to prove its case along with other incriminating material. The complainant appeared as PW-1 and in her examination-in-chief she had not mentioned the names of said witnesses nor did she state that she produce them before the investigating officer and they recorded their statements under section 161 Cr.P.C. It would not be out of place to mention here that neither names of these witnesses were mentioned in the F.I.R. nor they joined investigation at any

level nor complainant while appearing as PW-1 has mentioned their names as her witnesses nor she had stated in her examination-in-chief that she produced above named witnesses before investigating officer and they had recorded their statements under section 161 Cr.P.C and nor their names are mentioned in the report under section 173 Cr.P.C, nor any gist of their statements were provided to the petitioner/accused as per section 265-F (2) and (3) Cr.P.C.

9.The complainant/respondent No.2 has failed to substantiate that the witnesses namely Saif Ullah, Bashir Ahmed and Nazir Ahmed appeared before the investigating officer and they had recorded their statements or aforesaid witnesses appeared at any stage of investigation and they are witnesses of specific fact or act and recording of statements of said witnesses was essential for just decision of the case. Besides, said witnesses could not be summoned just to fulfill the desire of complainant/respondent No.2. The proceedings of the trial, which had almost been completed, had already consumed more than three years. There is no cavil with the proposition that the discretion under first part of Section 540 Cr.P.C has to be exercised judicially and on sound material keeping in view all aspects of the case. The said discretion is not to be exercised to favour one or the other party. The power cannot be exercised as a matter of rule. If such power is used in a routine manner it would tantamount to opening floodgates where parties may start call any witness to fill in lacunas in their evidence. I am of the opinion that there is no justification under the law or any compulsion on the part of learned trial court to summon the above said witnesses during the trial.

10.In so far as the case law citied by the learned Counsel for complainant/respondent No. 2 is concerned, suffice it to observe that the same is distinguishable from the facts of case in hand, therefore, the same is not helpful for him.

11.For what has been stated above, I have come to the inescapable conclusion that while accepting the application filed by complainant-respondent No.2, the learned Special Judge Anti Corruption Punjab, Lahore, indeed committed an illegality, therefore, this petition in hand is accepted and the impugned order dated 22.5.2012 is set aside.

JUDGE

Approved for reporting.

JUDGE

Hamid/*