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Criminal Petition for Special Leave to Appeal Nt. 235 of 1986, decided on 22nd July, 1986.
(From the judgment/order of the Lahore High Court, Lahore, dated 25‑6‑1986 passed in Criminal. Revision Petition No. 314 of 1986).
‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S. 540‑‑Summoning of witnesses given up by prosecution refused by Trial Court‑‑Petitioner facing trial under S.302, P.P.C. sought to summon given up prosecution witnesses as Court witnesses‑‑Request refused by Trial Court and order upheld in revision‑‑Plea that evidence of concerned witnesses was essential for just decision of case not entertained because it was not raised before High Court nor there was any such finding‑‑High Court had, however, left scope for petitioner to summon given up witnesses in his defence and if a genuine need arose for cross‑examining them, petitioner's request would be decided on its own merits Supreme Court with such observations dismissed petition for leave to appeal.
Muhammad Azam v Muhammad Iqbal and others P L D 1984 S C 95 ref
Syed Ahmad Saeed Kirmani and Rana Maqbool Ahmad Qadri for Petitioner.
Nemo for Respondents.
Date of hearing: 27th July, 1986.
Leave to appeal has been sought from judgment, dated 25‑6‑1986 of the Lahore High Court; whereby a Criminal Revision arising out of the refusal of a learned trial Court to summon some given up prosecution witnesses as Court witnesses, was dismissed.
The petitioner is facing trial in a murder case. It had reached the argument stage when two given up eye‑witnesses out of 5 were sought to be summoned by the petitioner as Court‑witnesses. The request was declined on various grounds including that of late stage and delay. A learned Single Judge in the High Court also dismissed the revision petition filed by the petitioner on similar grounds. He has now sought leave to appeal.
The learned counsel for the petitioner has relying on Muhammad Azam v. Muhammad Iqbal and others P L D 1984 S C 95 contended that the evidence of the two given up witnesses was essential for the just decision of the case, therefore, the question of their summoning as Court‑witnesses fell within Second Part of section 540 of the Criminal Procedure Code, thus the learned trial Court had no discretion but to summon them under the said second part.
The argument is attractive, but, in order to accept the same there should be factual basis for assuming that the evidence of the two witnesses concerned was essential for the just decision of the case. No such plea was raised before the High Court, therefore, there is no such finding in the impugned judgment. That being so, we cannot entertain the plea at this stage. .
After some arguments when pointed out that the High Court has left a scope for the petitioner to summon the two given up witnesses in his defence even now the learned counsel for the petitioner gave only one explanation for not making an' application in pursuance of the observations of the High Court; namely, that in case of need the petitioner shall not be able to cross‑examine the defence witnesses. The apprehension is unfounded. If they are summoned as defence witnesses and a genuine need arises for cross‑examining them there is no reason why a request made to the Court in that behalf would not be decided on its own merits.
With these observations, this petition is dismissed.
M . I . Petition dismissed.
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