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Criminal Revision No. 459 .of 1986, decided on 6th December, 1986.

---S. 540--Penal Code (XLV of 1860), Ss. 120-B, 148, 302 & 307/149- Court-witness, summoning of--Prosecution closing its case--Case fixed for arguments--Accused applying for summoning of three given up prosecution witnesses and two more as Court-witnesses--Cited but given up prosecution witnesses, directed to be summoned as Court-witnesses, other two, held, could be called as defence witnesses.

Taj Muhammad Langah for Petitioners.

Khalil Remday, Addl. A.-G. for the State.

The petitioners are aggrieved by the order, dated 1st of October, 1986 delivered by the Additional Sessions Judge, whereby the learned Judge disallowed the application moved on behalf of the petitioners for the examination of certain witnesses as Court-witnesses under section 540, Cr.P.C.

2. The brief facts given 'rise to the institution of this petition are, that one Israr and 16 others are facing their trial on charges under section 302/307/148/149 read with section 120-B, P.P.C. for having caused the murder of two persons, and for committing murderous assault on the prosecution witnesses. In course of the trial, the prosecution closed its evidence on 2nd of September, 1986 and the case was adjourned for arguments. On 24-9-1986, the petitioner accused moved an application under section 540, Cr.P.C. for summoning five witnesses as Court witnesses namely Hamid Mukhtar Gondal, D.S.P., Haji Bashir Ahmad D.S.P., Pervaiz Akhtar, a dealer in arms and Malik Muhammad Nawaz and one Umar Din, Manager Military Farms. Okara as Court-witnesses.

3. It was contended in the application that Hamid Mukhtar Gondal D.S.P. and Haji Bashir Ahmad D.S.P. had been entrusted with the investigation and they had found the petitioner innocent. Both these Police Officers, were given up by the prosecution. Similarly, another witness namely Parvaiz, the dealer in arms though cited by the prosecution was also given up by the prosecution. It was submitted that such course of action adopted by the prosecution had prejudiced the petitioners in their defence. It was also submitted that the statement of Parvaiz Akhtar was recorded under section 161, Cr.P.C. In respect of Muhammad Nawaz, the owner of wagon and Umar Din, Manager Military Farm, it was contended that they were the best available persons to depose about the possession of the land in dispute.

4. It is admitted that Hamid Mukhtar Gondal and Haji Bashir Ahmad, Police Officers had investigated the case and vide his report dated 24-6-1985, Hamid Mukhtar Gondal had given finding, that only Israr and Ghause proclaimed offenders were the culprits, while the remaining accused were not present on the spot. The learned Additional Sessions Judge in this behalf has strangely observed, that the said Police Officers had nowhere given a definite findings and, therefore, their examination as Court-witnesses was uncalled for. It is also admitted that Haji Bashir Ahmad D.S.P. during the investigation had given finding about the innocence of some of the accused. In the opinion of the learned Additional Sessions Judge, since these two Police Officers had not given finding with regard to all the 17 accused facing their trial, therefore, such application was intended to delay the proceedings and would not help the Court to arrive at the truth. The statement of Muhammad Pervaiz, recorded under section 161, Cr. P. C . reveals that on 19-4-1984 one Muhammad Akram and some other persons came to his shop in a wagon and purchased cartridges. The learned Additional Sessions Judge observed that this statement was not likely to help the petitioner and the other co-accused. The learned Additional Sessions Judge further observed that since the statements of the accused were yet to be' recorded under section 342, Cr.P.C., therefore, the petitioners can summon these witnesses as defence witnesses. It may be mentioned here that except Muhammad Nawaz, the owner of the wagon and Umar Din, Manager Military Farm, Okara the other witnesses sought to be summoned as Court-witnesses had been cited by the prosecution as witnesses in the report under section 173, Cr.P.C.

5. The determination of the controversy rests upon the interpretation of section 540, Cr.P.C. which reads as under:---

"Any Court may, at any stage of any inquiry, trial or other proceedings 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 and such person if his evidence appears to it essential to the just decision of the case."

6. The provisions of law have been interpreted by this Court on number of occasions. It is now well-settled that these provisions cannot be pressed into service, where the defence can produce witnesses. The provision can also be not used by the prosecution to fill in a gap or lacuna. The settled law is that the prosecution witnesses given up by it, can be summoned as Court-witnesses. I am fortified in this view by the judgment reported as Venugopal Mudalior v. The State A I R 1952 Mad. 39. Following the ration cited above, I am of the view, that the learned Additional Sessions Judge has erred, while disallowing the application moved by petitioners under section 540, Cr. P . C . for summoning the two Police Officers and arms dealer Pervaiz Akhtar as Court-witnesses. Since they were cited as prosecution witnesses and were given up, therefore, I would direct that they shall be summoned as Court-witnesses. As far as Umar Din and Muhammad Nawaz, the owner of wagon are concerned, since they were not cited by the prosecution, therefore, the petitioners will be at liberty to summon them as defence witnesses. The summoning of two Police Officers and Pervaiz Akhtar arms dealer would help both the prosecution and the defence for assisting the Court to arrive at the truth.

For the reasons stated above, this petition is allowed.

S . A . Petition accepted.

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