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Criminal Revision No. 290 of 1965, decided on 30th May 1975.

a) Criminal Procedure Code (V of 1898)‑

‑ Ss. 253 & 540‑Provisions of S. 540‑Available to trial Courts at any stage‑Section 253 does not restrict power under S. 540 in any manner.

Muhammad Ashraf v. Zafar Mahmood etc. P L D 1967 Lah. 1045 and Khushi Muhammad v. Muhammad Yousaf etc. P L D 1971 Lah. 169 held not applicable.

b) Criminal Procedure Code (V of 1898)‑

‑‑‑ S. 540‑Court witness, summoning of‑Person summoned as Court witness‑One in whose house theft in question took place‑No objection taken to his appearance as Court witness despite know ledge‑Exercise of power under S. 540 by Magistrate, held, neither incompetent nor prejudicial to interests of objecting petitioner.

Zia Mahmood Mirza for Petitioner.

Kh. Shaukat Ali for A: G. for the State.

Nemo for Respondent..

Date of hearing : 27th May 1975.

Muhammad Hussain, petitioner bad brought a complaint before Magis trate, Sargodha on 2‑1‑1963, under section 384/347, P. P. C. alleging that Abdul Rashid Head Constable, respondent, had come to his shop on 20‑12‑1962 and taken away the khata in which the purchase of 15 tolas of gold by the petitioner's father from one Ghulam Murtaza had been entered, that the petitioner had been made to visit the Police Station in that connection, that on 26‑12‑1962 the respondent had asked him to pay the value of that gold because it had been stolen property, and that the petitioner under his pressure had purchased 12 tolas of gold for Rs. 1,512 and had given the same along with Rs. 400 in cash to him. In the trial, the petitioner closed his side after examining 6 witnesses, including himself, who supported his case. Before charge could be framed, the respondent applied to the Court to examine Muhammad Shafi, then Assistant Director, Animal Hus bandry, Lyallpur, from whose house the theft in question had been committed, as a Court witness. Muhammad Shafi was accordingly examined and he deposed that he was present with the respondent when he visited the shop of the petitioner and that it was the petitioner himself who, in order to avoid legal action against him, had sought to patch up the matter and had volunteered to compensate him for the loss of the stolen ornaments. The witness admitted that he had received 12 tolas of gold from the petitioner. He denied that any pressure had been brought to bear upon the petitioner. Relying upon the evidence of this Court witness, the trial Court discharged the respondent under section 253, Cr. P. C. The learned Sessions Judge, before whom the petitioner took up the matter in revision, observed that the Magistrate should not have examined the Court witness and that the evidence produced by the prosecution had been sufficient for the framing of charge. He, nevertheless, felt that in view of the statement of the Court witness, the case against the respondent had become extremely doubtful and a conviction would not be warranted. He, therefore, rejected the revision petition. Hence this Revision.

2. Learned counsel for the petitioner urged that the language of section 253, Cr. P. C. did not admit of the examination of Court witness at the instance of the accused person before the charge had been framed. The relevant words of this section are "If upon taking all the evidence referred to in sec tion 252". Under section 252, the Magistrate, after appearance of the accused before him, "shall proceed to hear the complaint (if any) and take all such evidence as may be produced in support of the prosecution." The A contention, I am afraid, is misconceived because section 540, Cr. P. C. which is available to the trial Court "at any stage" of the trial, is not restricted in any manner by section 253, Cr. P. C.

3. Learned counsel, however, relying on the authorities in Muhammad Ashraf v. Zafar Mahmood etc. (P L D 1967 Lah. 1045) and Khushi Muhammad v. Muhammad Yousaf etc. (P L D 1971 Lah. 169) urged that the summoning of a Court witness at the instance of the accused was not warranted. In the first cited case, where persons who had been named by the accused and who had been shown in column No. 2 of the challan had been summoned by the Magistrate under section 540, Cr. P. C. it had been observed :‑‑

"It is, therefore, clear that it is only for the purpose of the just decision of case that a Court can have resort to section 540 of the Criminal Procedure Code for summoning Court witnesses. He cannot use these powers to advance the cause of the prosecution, or that of the defence, and whoever he passes such an order, putting one of the parties in a position of advantage, vis‑a‑vis, the other, the High Court will be justified in interfering in the exercise of its revisional jurisdiction to correct the error."

In the second cited case where witnesses had been summoned at the accused's instance as Court witnesses without assigning any reason when the prosecution evidence was not yet concluded and two out of summoned witnesses were still to appear as prosecution witnesses and the prosecution had not been given notice nor heard before summoning the witnesses, the High Court had interfered in revision. These rulings are of little help. In the first instance, Muhammad Shafi, the Court witness, was an important witness inasmuch the relevant theft of the ornaments bad taken place in his house. In th 3 second instance, no objection had been taken by the petitioner to his appearance as a Court witness in spite of knowledge. The exercise of the' power under 'section 540, Cr. P. C. by the Magistrate was, therefore, neither incompetent nor in the peculiar circumstances of the case, to the prejudice of the petitioner. In Inasimuthan v. Manikka Mudali etc. (2 Weir 714) it had been held :‑

"It appears that the Temporary Deputy Magistrate examined certain persons as Court witnesses after examining the witnesses produced by the complainant, and relying on their evidence, discredited the com plainant's witnesses and discharged the accused under section 215 (253), Criminal Procedure Code. In view of section 351 (540), Criminal Procedure Code, we are not prepared to say that this procedure was illegal and that the Deputy Magistrate was not at liberty to summon any witnesses who might have appeared material to him before framing a charge against the accused."

This decision although an old one dating back to 1882, is not at vatiance with the decisions in the aforesaid cited cases and as such can be applied to the present case. In view of the material on record, no interference is called for with the order of discharge.

4. The revision thus fails and is dismissed.

s. A. H. Revision dismissed.

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