Shafqatullah Khan vs Jehan Zeb Khan

2012 P Cr. LJ734

[Peshawar]

Before Nisar Hussain Khan, J

SHAFQATULLAH KHAN alias SHAUKAT KHAN and 2 others---Petitioners

Versus

JEHAN ZEB KHAN and another---Respondents

Criminal Revision No.32 of 2011, decided on 1st December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 540---Power to summon material witness or examine persons present---Plea raised by accused for the first time during 'cross-examination of prosecution witnesses--- Accused (petitioners), on conclusion of prosecution evidence, filed an application under S.540, Cr. P. C. for summoning of local Grid Station's official along with record, to prove the defence stance that at the relevant time of occurrence, there was load-shedding in the area--- Application of accused was dismissed---Validity---Accused, on completion of investigation, filed application for reinvestigation, before Inspector-General of Police after which the case was reinvestigated--- Application for reinvestigation did not bear a single word qua load- shedding in the area and statements of accused under 5.161, Cr.P.C. also did not raise any such plea---Statements of accused's (defence) witnesses produced by accused during reinvestigation revealed that none of them had stated about any load-shedding at the time of the occurrence---One of accused's (defence) witnesses had clearly stated in his statement before the Investigating Officer that on the night of the occurrence, he was watching a cricket match and came out after said match was over and soon thereafter heard fire shots---Two other accused's (defence) witnesses had also made statements in the same strain and all said witnesses belonged to the same area where the occurrence took place, therefore, presumably electric power was available at the time of the occurrence-Accused did not take plea of load- shedding in their application for reinvestigation, rather their own witnesses had stated that they were watching a cricket match at the time of occurrence and it was only after about one and a half year, that accused's counsel put suggestion of load-shedding to prosecution witnesses during their court statements---No justification was available in peculiar circumstances of the case to summon a witness and record, to substantiate plea bf the defence which had been raised for the first time by accused's counsel during cross-examination of the prosecution witnesses, when there existed no such circumstance on the record inkling in that regard---If accused's plea was allowed, theft flood gates of such like applications would break open and in each and every case, the accused would seek summoning of witnesses and record on every hypothetical question put by defence counsel on any prosecution witnesses, which was never the intention of the legislature , behind the enactment of S.540, . Cr. P. C--- Revision petition was dismissed in circumstances.

Farooq Khan Sakari for Petitioners.

Faridullah Khan, D.A.-G. and Noor. Zada Khan for Respondents

Date of hearing: 1st December, 2011.

JUDGMENT

NISAR HUSSAIN KHAN, J.---The petitioners, through instant criminal revision petition, seek annulment of the order of Additional Sessions Judge-I, Banriu, dated 1-11-2011, vide which their application under section 540, Cr.P.C. has been turned down.

2.The resume of the facts forming the background of instant criminal revision petition is that petitioners are facing trial in case F.I.R. No.187, dated 15-5-2010. registered under section 302/460/324134, P.P.C. at Police Station Cantt. Bannu. The case of prosecution as narrated in the F.I.R. is that the house of Bulbul Nawaz, uncle of complainant consists of two parts one situated at eastern side, while other one on western side. Both these houses are connected by a small gate. Zahir Shah and Nadir Khan, brothers inter se reside in eastern part, while Bulbul Nawaz along 'with his family is dwelling in the western side of the house. On the day of occurrence, complainant along with Zahir Shah and brothers along with other family members were watching cricket match on T.V., in the house of Bulbul Nawaz, which ended at 0.05 a.m. Complainant along with Zahir Shah came out of T.V. Room and were standing in the courtyard, when they heard of rattling in the house situated on eastern .side. On this both of them entered from the small gate in the house, when both the rooms and courtyard were illuminated with bulb. While the main gate of the house was open. In the meanwhile, three persons, namely, Shaukat Khan son of Farid Khan Saleem Khan and Shaista Khan sons of Mir Sahib Khan, armed with Pistols came out of the room of Zahir Shah, who tried to overpower, all of them. All the three accused started firing on the complainant party, with their 'respective weapons to get themselves out of their clutches. As a consequence of this firing, Zahir Shah sustained injury and fell on the ground, while complainant luckily escaped. He could not do anything being empty-handed. The accused fled away after the occurrence.

3.The case was. registered and investigated by the local Police. The accused party filed application before Inspector-General of Police of Khyber Pakhtunkhwa on which statements of defence witnesses were recorded by the police and report was submitted. During the trial, learned defence counsel put suggestion to the eye-witnesses with regard to the load-shedding at the time of occurrence, which were denied. On conclusion of prosecution evidence, learned defence counsel filed an application under section 540, Cr.P.C. for summoning of the official along with record of the Grid Station 132 KV, Bannu as C.W., to prove defence stance that at the relevant time of occurrence, there was load-shedding in the said area. This application was turned down, hence this petition.

4.Learned counsel for the petitioner vehemently argued that there was load-shedding in the area at the time of occurrence, while complainant has falsely alleged in his report that place of occurrence was lit by the bulb. To dislodge the stance of the prosecution, the learned trial

Court was legally obliged to summon record of concerned Grid Station to substantiate that whether there was load-shedding in the area, or not. He contended that section 540, Cr.P.C. vests ample powers in the learned trial Court to summon any material witness to reach on a just conclusion, but learned lower Court has failed to discharge its obligation, causing grave injustice, hence this revision petition be accepted.

5.Learned counsel for the complainant, while controverting arguments of the learned counsel for the petitioner argued that petitioners, during the investigation have filed different applications including bail petition and recorded their statements, but did not raise any such plea at any stage; that they have filed application to the Inspector-General of Police, Khyber Pakhtunkhwa on which .re-investigation was carried out, but no such plea was taken in said application also. So much so, that defence witnesses were examined during the investigation on said application on the direction of Inspector-General of Police, Khyber Pakhtunkhwa, but none of the D.Ws. have uttered a single word in this regard. So, at this belated stage and that too on a suggestion put to the P.Ws. by the defence counsel and denied by them, cannot be a valid legal ground for summoning of any such record. He further argued that even if, it is assumed that there was load-shedding, the use of U.P.S is a common practice, now-a-days, so the application has rightly been spurned by the learned trial Court.

6.Arguments of learned counsel for the parties heard at length and record perused with their assistance.

7.The perusal of the record reveals that on completion of investigation the accused party filed an application before the Inspector-General of Police Khyber Pakhtunkhwa, which was marked to Supdt. ' of Police, Investigation Bannu, on whose direction Naimatullah Khan S.-I. re-investigated the case on the application of accused. The said Investigating Officer namely Naimatullah Khan S.-I., was examined by the prosecution as P.W.10, although he investigated the case on the application of the accused. During his Court statement application of accused was exhibited P.W.10/1, while statements of D.Ws. produced by the accused recorded by him was tendered in evidence as Exh.P.W.10/2 to Exh.P.W.10/11 and his report was produced as Exh.P.W.10/12. Although the report of the said I.O. was objected by the defence counsel, but no such objection was raised on the statements of D.Ws. The application filed by the Shafqatullah alias Shaukat son of Farid Khan, accused does not bear a single word qua load-shedding in the area. Likewise their statements under section 161, Cr.P.C. were recoded by the 1.0., but they did not raise any such plea therein. The perusal of the statements of defence witnesses, produced by the accused during re-investigation, transpire that those were recorded on 23-9-2010, after about more than four months, but none of them have uttered a single word about any load-shedding at the time of occurrence. Rather D.W. Asmatullah No.207, recruit constable posted in line-2, Bannu, son of Mirza Ali Khan resident of Muslim Abad clearly stated in his statement before the 1.0. that on the night of occurrence, he was watching T-20 Cricket Semi Final match between Australia and Pakistan. He came out after the match was over at 12-05 a.m. at night; he soon thereafter heard report of fire shots. Likewise D.W. Irshad Asad Khan and Javedullah Khan sons of Farid Khan resident of Muslim' Abad made statement in the same strain. All these D.Ws. belong to the same area of Muslim Abad, where the occurrence has taken place. So in the light of this material, which was brought on record on the application of the accused, it is crystal clear that they have not taken any such plea during the re-investigation, in their own application. Rather their own witnesses have stated that they were watching cricket match at the time of occurrence. Presumably the electric power was available at that time. It was for the first time on 27-6-2011 after about one year and one month, when defence counsel put some suggestion on these P.Ws., during their Court statements with regard to the load-shedding, which were denied by them.

8.Although section 540, Cr.P.C. vests ample power in the trial Court to summon any person

as witness at any stage of the case, if his evidence appears to it essential for the just decision of the case. The question is, whether it would be justified in peculiar circumstances of the case to summon a witness and record, to substantiate plea of the defence which has been raised for the first time by the defence counsel during the cross-examination of the prosecution witnesses, when there is no such circumstance or even inkling in this regard on the record. The answer in my humble view is emphatic NO. Because if this proposition is allowed, then flood gates of such like applications would break open. In each and every case, the accused would seek summoning of witnesses and record on every hypothetical question put by the defence counsel on any prosecution witness, which has never been the intention of the legislature, behind the enactment of section 540, Cr.P.C. This is not an evidence, which has come into lime-light, during investigation or which has been abandoned by the prosecution. Rather it is a suggestion, totally alien to the prosecution case, being relied upon by the accused. While the accused would get ample opportunities for production of any evidence according to his own whims, in his defence, when he would be examined under section 340(2), Cr.P.C. and 3 4 , Cr.P.C The trial Court would be obliged to accede to such request of the accused, if they so wish. They would be provided a fair chance to substantiate their defence plea through oral as well as documentary evidence and their own examination on oath and thereafter trial Court would decide the matter.

9.For what has been discussed above this petition being meritless is hereby dismissed. Before parting with the judgment, it is clarified that) any observation made herein is tentative in nature, only to the extent of disposal of the instant Criminal Revision Petition. It would not affect the merits of the case or influence the mind of the trial Court, in any way, while deciding the case, after appreciation of the evidence, so produced by the accused, in their defence.

M.W.A./12/P Petition dismissed.