Amjid Ali Vs Muhammad Saleem etc

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Criminal Revision No.17-P/2026

Amjid Ali..................................... Petitioner Vs Muhammad Saleem & Others..........Respondents Present: M/S. & Amjid Ali, & Muhammad Talha Advocates for the appellant.

Mr. Taimoor Haider AAG, for the State.

Muhammad Ayaz Khan Advocate for the respondent.

Date of hearing: 10.06.2026

ORDER

MUHAMMAD IJAZ KHAN, J.- Through this criminal revision petition, petitioner has challenged the order & judgement of the learned trial court/Additional Sessions-IX Mardan dated 20.01.2026, whereby an application filed under Section 540 Cr.PC by the present petitioner, for summoning of the inquiry/investigation officer for recording of his statement in support of his inquiry has been dismissed.

Hon’ble Mr.Justice Muhammad Ijaz Khan.

2.Precisely, the facts leading to the filing of the instant petition are that the present petitioner has filed a complaint under section 3/4 of The Illegal Dispossession Act, 2005 (herein after to be referred The Act 2005) against the respondent and after filing the same, the learned trial court directed SP City Mardan/local police to conduct an inquiry and submit its report, which has accordingly been submitted by the investigating officers posted at local police station of P.S City Mardan and thereafter, by holding the instant complaint being maintainable, charge was framed against the accused/respondent and when the evidence of the prosecution/complainant was in progress, the present petitioner being complainant, filed an application under Section 540 Cr.P.C, for summoning of the inquiry officer, as court witness, which application, after a due contest was dismissed by the learned trial court vide impugned order dated 20.01.2026, hence, the instant revision petition.

Hon’ble Mr.Justice Muhammad Ijaz Khan.

3.Arguments heard & record perused.

4.It is an admitted fact that the petitioner being complainant has filed the instant complainant under section 3/4 of The Act Of 2005, which complaint was entrusted to the Worthy Additional Sessions Judge-IX, Mardan and after entrustment, he has required the report of local police, which has accordingly been submitted and as such thereafter, he has taken cognizance of the instant complaint, and when the evidence of the prosecution was in progress, the present petitioner submitted an application under section 540 Cr.P.C for summoning of the inquiry officer, who has conducted the investigation on the directions of the learned trial court, however, the said application has dismissed by the learned trial court through the impugned order. In the given facts & circumstances, it would be relevant to mention here that The Illegal Dispossession Act, 2005, provides a complete and comprehensive procedure that as to how an investigation or inquiry is to be carried/conducted Hon’ble Mr.Justice Muhammad Ijaz Khan.

after filing of a complaint and if the complaint is found maintainable, then charge is to be framed against the nominated accused and then proceedings qua the trial of the accused are to be commenced and conducted as per the procedure provided under the Cr.P.C. In this case too, when the instant complaint was filed, the learned trial court required the SP City, Mardan to submit its report, who has onward marked the said inquiry to Sub-Inspector, namely Ifitikhar Khan of Police Station City, Mardan. It would be relevant to mention here that for such preliminary investigation/inquiry a procedure has been provided under The Illegal Dispossession Act, 2005 and in this regard Section 5 being relevant is reproduced: -

5.Investigation and procedure. ---

(1)Upon a complaint the Court may direct the officer-in-charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the court:

Provided the Court may extend the time within which such report is to be forwarded in case where good reasons are Hon’ble Mr.Justice Muhammad Ijaz Khan.

shown for not doing so within the time specified in this sub-section 1[:]

[ Provided further that whenever a local inquiry is necessary for the purpose of this Act, the Court may direct a Magistrate or a revenue officer in the district to make inquiry and submit report within a period as may be specified by this Court. The report of the Magistrate or revenue officer, as the case may be, shall be constructed as evidence in the case]

(2)On taking cognizance of a case, the Court shall proceed with the trial from day to day and shall decide the case within sixty days and for any delay, sufficient reasons shall be recorded.

(3)The Court shall not adjourn the trial for any purpose unless such adjournment is, in its opinion, necessary in the interest of justice and no adjournment shall in any case be granted for more than seven days.

The plain reading of the aforesaid section of law would manifestly show that when a complaint is filed then the court may direct the officer-in-charge of police station to investigate and complete the investigation and forward the same within fifteen

(15)days, and in case of any delay, the court may extend time for the same. The said provision of law Hon’ble Mr.Justice Muhammad Ijaz Khan.

further authorize the learned trial court that for such preliminary investigation, he may also direct a Magistrate or even a Revenue Officer to make an inquiry and to submit their report and as such after filing of the requisite report the court will take cognizance of the complaint and would proceed with the trial of the accused.

5.Keeping in view the aforesaid mandate of law as well as the mechanism as provided thereunder, for the preliminary investigation, in this case too, when the present petitioner being complainant filed the instant complaint, the learned trial court directed the local police to conduct an investigation and to submit its report, which investigation has conducted by the Sub-Inspector namely Iftikhar Khan, and who has also submitted his report dated 02.09.2025, duly reflected in the order sheet of learned trial court dated 04.09.2025.

The said report has also been appended by the present petitioner with the instant petition, which report contains in itself a considerable detail of the preliminary investigation with respect to the Hon’ble Mr.Justice Muhammad Ijaz Khan.

allegations as levelled by the petitioner in his main complaint.

6.In view of the above, when the said report has been required-cum-obtained by the learned trial court through its order, and when the said report has been submitted by the said Sub- Inspector namely Iftikhar Khan and when the same is part of the record, then in such eventuality, it becomes more a duty of the learned trial court than that of the complainant to ensure that the police official who has carried out preliminary investigations into the alleged dispossession of the complainant and which has duly been received by the learned trial court and when the same is part of the record, to examine the said investigation officer, as non-examination of the said officer would amount to deprive and deny an opportunity of a fair trial to the complainant/ prosecution and thus keeping in view the aforesaid admitted position, the learned trial court should have been Hon’ble Mr.Justice Muhammad Ijaz Khan.

exercised its discretion in a manner, so as to ensure that a party before it be provided an opportunity of a fair and impartial trial.

7.There is no cavil with the proposition that under section 540 Cr.P.C, summoning of a witness is entirely the discretion of the Court and the power to summon of a witness is governed and regulated by Section 540 Cr.PC, whereas, the scope of admissibility of evidence recorded in pursuance of such examination is regulated by Article 133, of The Qanoon-e-Shahadat Order, 1984. The aforesaid provisions of law being relevant are reproduced below:

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.

Hon’ble Mr.Justice Muhammad Ijaz Khan.

“133. Order of examinations. (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re- examined.

(2)The examination and cross-examination must relate to relevant facts but the cross- examination need not be confined to the facts to which the witness testified on his examination-in-chief

(3)The re-examination shall be directed to the explanation of matters referred to in cross-examinations and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross examine that matter.”

The plain reading of Section 540 Cr.PC would show that it entirely speaks about the discretion of the Court to summon any person as a witness or to re-examine or recall a witness, who has already been examined. The word “Any Court” and “if his evidence appears to it” appearing in the said sections are of much significance and it speaks that a witness could only be examined/re-examined and recalled if the Court considers it as essential to the just decision of the case pending before it.

Similarly, Article 133 of The Qanun-e-Shahadat Order, 1984 provides that if a Court considers it Hon’ble Mr.Justice Muhammad Ijaz Khan.

essential to summon or re-summon a witness, then evidence of such witness shall be admissible in evidence, however, such discretion could not be exercised in an unfettered & arbitrary manner, rather the same has to be exercised in a just, fair, honest & judicious manner, so as to advance the cause of justice, rather then to exercise it as a tool to defeat the very cause of justice. The subject that as to how a discretion is to be exercised by a trial court under the mandate of 540 Cr.P.C has been remained a favorite subject of the superior judiciary of this country and in this regard in one of a case1, the Apex Court has held that the Court could not summarily dismiss an application for additional evidence in terms of S.540, Cr.P.C by merely holding that either the said witness was not mentioned in the challan or that it was belated or that it might fill up lacunas in the prosecution case, unless the totality of material placed before the court was considered to find out whether Nawabzada Shah Zain Bugti & Others vs The State reported in

PLD 2013 SC 160.

Hon’ble Mr.Justice Muhammad Ijaz Khan.

examination of the said witness was essential for a just decision of the case. It is further held that the Court has also to keep in mind that in trying a case it has to find out the truth to render a judgment in accord with canons of justice. If it finds that the investigation is defective, it cannot just sit idle as a timorous soul and has to exercise all the enabling provisions under the law including section 540, Cr.P.C. to discern the truth. For the purpose of this provision, the Court even without any formal application from prosecution or accused, can summon any person as witness or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined. In Ansar Mehmood v. Abdul Khaliq (2011 SCMR 713), the judgment of the High Court was reversed and that of the trial Court was restored which had allowed examination of additional evidence in terms of section 540, Cr.P.C. While doing so, the Court commented on the ambit of this provision in terms as follows: --

Hon’ble Mr.Justice Muhammad Ijaz Khan.

"5. Bare reading of section 540, Cr.P.C. transpires that where an evidence is essential for just decision of the case, it is obligatory upon the Court to allow its production and examination. Examining the law on the subject, reference can be had to Muhammad Murad Abro v. The State through A.G. Balochistan (2004 SCMR 966), wherein it was held that provision of section 540, Cr.P.C., is to enable the Court to go at the truth of the matter, so as to come to a proper conclusion. In the case under trial, it is obligatory to summon a person whose evidence is essential for just decision of the case. Similar view was taken in Painda Gul and another v. The State and another (1987 SCMR 886), with addition that the Court has widest powers under section 540, Cr.P. C. and can summon a witness for examination at any stage of the case. However, while exercising discretion it must guard itself against the exploitation of this power by a litigant party and keep in view the guiding principle, what the ends of justice demand. Cases titled as Dildar v. State through Pakistan Narcotics Board, Quetta (PLD 2001 Supreme Court 384) and the State v. Muhammad Yaqoob (2001 SCMR 308), lay down guide. Observations made in 2001 SCMR 308, are quoted: --

"It is thus manifest that calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose but it is the duty of the Court to do complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object. It is salutary principle of judicial proceedings in criminal cases to find out the truth and to arrive at a correct conclusion and to see that an innocent person is not punished merely because of certain technical omission on his part or on the part of the Court. It is correct that every criminal case has its

Hon’ble Mr.Justice Muhammad Ijaz Khan.

own facts and, therefore, no hard and fast rule criteria for general application can be laid down in this respect but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of the section 540, Cr.P.C., it is obligatory on the Court to examine such a witness ignoring technical/formal objection in this respect as to do justice and to avoid miscarriage of justice."

11.In Shahbaz Masih v. The State (2007 SCMR 1631), a similar view was reiterated by the Court and it was held as under:--

7..........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 decision of the case. Also, the Court can examine any person in attendance though not called as a witness. The underlying object, always, is to reach truth ......"

8.It may further be added that after insertion of Article 10-A in The Constitution of Islamic Republic of Pakistan, 1973, an opportunity of a fair trial has been recognized and acknowledged as one of the fundamental rights of every person who is before the court either as an accused or as a complainant or as a prosecutor. In a case2 the President, Zarai Taraqiati Bank Limited‐vs‐Kishwar Khan & others (2022 SCMR Hon’ble Mr.Justice Muhammad Ijaz Khan.

Apex Court has held that the function of the court is to do substantial justice and not to knockout the party on technicalities. Similarly, in an another case3 it is held that this is the requirement of the fundamental right guaranteed by Article 10-A of The Constitution of Pakistan, which mandates that for the determination of his civil rights and obligations, as well as to provide a fair opportunity of trial in a criminal case to the complainant or accused would meet the requirement of due process of law.

9.In view of the above discussion & exposition of law on the subject, this criminal revision petition is allowed, the impugned order of learned trial court/Additional Sessions Judge-IX, Mardan dated 20.01.2026 is set-aside and consequently the application of the present petitioner/complainant filed under section 540 Cr.P.C is allowed, and as a result thereof, the Bashid Ahmed‐Vs‐Additional District Judge, Hafizabad & others (PLD 2024 Supreme Court 67)

Hon’ble Mr.Justice Muhammad Ijaz Khan.

learned trial court is directed to summon the Investigating Officer, namely Iftikhar Khan, as a court witness. Order accordingly.

ANNOUNCED.

(Khalid Usman)

JUDGE

Hon’ble Mr.Justice Muhammad Ijaz Khan.