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Criminal Revision No. 629 of 1985, heard on 27th May, 1986.

‑‑‑S. 540‑‑Penal Code (XLV of 1860), S. 307‑‑Court witness‑‑Witness given up by prosecution on ground that he had colluded with accused‑ Trial Court rejecting application of accused to summon witness‑‑Prayer of accused to summon such witness, held, could not be disallowed‑‑Trial Court was duty bound to have allowed‑such prayer to arrive at truth which was sacred function of a Court while dispensing justice on criminal side.

‑‑‑S. 540‑‑Penal Code (XLV of 1860), S. 307‑‑Court witness‑‑Accused, prejudiced by Trial Court's refusal to summon given up prosecution witness, preferring appeal to Sessions Court‑‑Sessions Court setting aside conviction and sentence of accused and remanding case to Trial Court for examining given up prosecution witness as Court witness‑ Order of Sessions Court, held, unexceptionable‑‑A witness who was given up by prosecution had to be examined as a Court witness to arrive at truth.

Venugopal Mudaliar v. The State A I R (39) 1952 Mad. 509 ref.

Talib Hussain Rizvi for Petitioner.

Nemo for Respondents No.1.

Akhtar Shabbir A.A.‑G. for the State.

Date of hearing: 27th May, 1986.

This revision petition has been filed to assail the order dated 15th September, 1985, delivered by the learned Sessions Judge, Bhakkar, whereby the conviction and the sentence awarded to the respondent on the charge under section 307 of the Pakistan Penal Code was set aside and the case was remanded to the learned trial Court for recording the statement of one Abdul Rehman, a prosecution witness, who had been given up by the prosecution.

2. The brief facts of the case are, that the respondent during his trial on the charge under section 307 of the Pakistan Penal Code moved an application for summoning one Abdul Rehman a witness cited by the prosecution and who was given up by the Deputy District Attorney on the ground of having been won over by the accused side. The said application was considered by the learned trial Magistrate and vide his order dated 25th of March, 1985, it was rejected. Subsequent thereto the learned trial Magistrate vide his order dated 21st April, 1985, convicted the petitioner.

3. Aggrieved by his conviction, the petitioner filed an appeal and in course of the hearing of appeal the conviction was challenged on the ground, that the petitioner has been prejudiced because of the refusal of the learned trial Magistrate to summon Abdul Rehman, given up prosecution witness. This ground found favour with the learned Sessions Judge seized of the appeal and, thus, the conviction and the sentence was set aside and the case was remanded to the learned trial Magistrate with the direction to examine Abdul Rehman, given up witness, as a Court witness.

4. Before me the learned counsel for the petitioner contended, that the order passed by the learned trial Magistrate, dated 25th of March, 1985, refusing to summon and record the statement of Abdul Rehman had attained finality, because the same was not challenged. It was further urged, that Abdul Rehman could not have been summoned as a Court witness.

5. I have carefully considered the arguments raised at the Bar, but after anxious consideration, I am of the view, that none of these grounds would help the petitioner for the reversal of the order impugned. Abdul Rehman was an injured witness and after having been cited by the prosecution was given up because it was stated, that he had colluded with the petitioner /accused. In such circumstances a request by the accused to summon such witness could not be disallowed. It was the bounden duty of the learned Magistrate to have allowed such prayer to arrive at truth which is noble and sacred function of a Court while dispensing justice on the criminal side. There is no doubt, that by refusing to summon such witness the respondent had in fact been prejudiced. In this view of the matter, the learned Sessions Judge was justified in setting aside the conviction and sentence and in remanding the case to the trial Magistrate. The direction of the learned Sessions Judge to examine such witness as a Court witness is also not open to exception, a witness who is given up by the prosecution has to be examined as a Court witness to arrive at the truth. I am fortified in this view by the judgment reported as In re: Venugopal Mudaliar v. The State A I R (39) 1952 Mad. 509. Consequently, this revision petition fails and is hereby dismissed.

M.Y.H. Petition dismissed.

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