2021 LHC 5
Any piece of evidence, which is essential for just decision of the case, has to be brought on record irrespective of the fact that either it favours one party or goes against other; filling lacuna in the case is also immaterial if said piece of evidence is otherwise necessary for securing ends of justice.
WP No. 246 of 2021Ch Muhammad Anwar Vs Judge accountability Court etc Mr. Justice Farooq Haider 06-01-2021 2021 LHC 5 IN THE LAHORE HIGH COURT, LAHOREJUDICIAL DEPARTMENTWrit Petition No.246 of 2021Ch. Muhammad Anwar vs Judge Accountability Court & othersDate of order: 06.01.2021 Sardar Muhammad Sadiq Tahir, Advocate for the petitioner. Syed Faisal Raza Bukhari, Special Prosecutor for NAB, on Court’s call.
ORDER SHEET
Through instant petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section: 561-A Cr.P.C., Ch. Muhammad Anwar (petitioner) has challenged the vires of order dated: 08.12.2020 passed by learned Judge, Accountability Court No.IV, Lahore, whereby application for recalling of order dated: 26.11.2019 passed by said learned Court, has been dismissed; relevant portion of said order dated: 26.11.2019 is hereby reproduced: -
“An application U/s 540 Cr.P.C. was filed on the last date for recalling of two PWs namely PW-7 Sheikh Muhammad Aslam and PW-9 Muhammad Umar Asif Jah on the ground that two different numbers were assigned to the two references i.e. the original and supplementary reference and that inadvertently the cheque No.2198624 dated 27-06-2006 pertaining to Allied Bank Awan Town, Multan Road Lahore and the minutes of the general body meeting of the society WAPDA Retired officers employees Housing Scheme Mannoabad Muridky have to be placed on record as the same were already available in the reference and due to inadvertence same could not be exhibited and that nothing new for filing up of any lacuna is being sought. The learned Special Prosecutor further want to resummon the PW-23 for complete examination in chief.
I have perused the record. The said cheque No.2198624 is available on page-179 and was produced by PW-9 Muhammad Umar Asif Jah and minutes of meeting are available at page-183 to 223 PW-7 Sheikh Muhammad Aslam had produced the same to the I.O. and available on record. As the compilation of the reference is huge and the confusion in the allotment of two different numbers while registration of the reference gave arise to some confusion therefore, when the documents are available on record it cannot be assumed that it was some lacuna on the part of the prosecution nor a new evidence is being created by the prosecution. Therefore, the said documents are relevant and certainly would be essential for just decision of the case. Therefore, the said PWs be summoned accordingly for 18.12.2019.”
Similarly, relevant portions of impugned order dated: 08.12.2020 are also reproduced for ready reference: -
“Briefly stated the facts giving rise to the disposal of instant application are that reference bearing No.29/2010 against Ch. Muhammad Anwar and Others is pending in this court and examination-in-chief of PW-7 SHEIKH Muhammad Aslam and PW-9 Muhammad Umer Asif Jah were recorded on 05.07.2013 and 11.01.2014 and cross-examination on these PWs were completed by the learned defence counsel on 07.10.2013 and 19.03.2014 respectively. After the completion of evidence of PW-7, learned Special Prosecutor preferred an application on 29.08.2013 under Section 540 Cr.P.C. for recalling and resummoning of the witness PW-7 Sheikh Muhammad Aslam. Thereafter, then learned Special Prosecutor again filed the same application under Section 540 Cr.P.C. on 11.10.2018 for recalling and re-summoning of the said prosecution witnesses. On 19.09.2019 learned Special Prosecutor withdrew the application filed by him on 11.10.2018 with the contention that he wanted to file afresh application with the permission of court which was dismissed as withdrawn accordingly vide order dated 19.09.2019. On 12.11.2019, learned Special Prosecutor filed a third application under Section 540 Cr.P.C. for recalling/re-summoning the aforesaid PWs which was accepted by my learned predecessor namely Ch. Ameer Muhammad Khan vide impugned order.”
“I have heard the arguments of both the parties and gone through the record with the able assistance of learned counsels and also perused the law applicable on the subject. The instant application has been filed after more than one year of the passing of impugned order especially when examination-inchief of both the PWs have been recorded by the court on 05.10.2020 and cross-examination on them on behalf of accused Dilawar Hussain by his counsel Mr. Adnan Shuja Butt Advocate has also been completed.
Perusal of record further reveals that learned Special Prosecutor withdrew the previous application on 19.09.2019 with the statement which is being reproduced alongwith order sheet of even date recorded by my learned predecessor Ch. Ameer Muhammad Khan as follows: -
“An application under Section 540 Cr.P.C. was filed on 11.10.2018. Learned Special Prosecutor covets to withdraw this application, for filling afresh application. Let his statement be recorded. STATEMENT OF HAFIZ ASAD ULLAH AWAN, LEARNED SPECIAL PROSECUTOR FOR THE STATE. I withdraw the application under Section 540 Cr.P.C. dismissed as withdrawn.”
In the light of said statement, my learned predecessor dismissed the application as withdrawn vide order dated 19.09.2019. Thereafter on 12.11.2019, in pursuance of the same learned Special Prosecutor filed an application in hand under Section 540 Cr.P.C. for recalling/re-summoning the PW7 and PW-9 and my learned predecessor Ch. Ameer Muhammad Khan accepted the same in presence of the accused persons and file was adjourned to 26.11.2019 and on the same day accepted the application vide impugned order dated 26.11.2019 in presence of the accused persons and they did not raise any objection which is evident from the order sheet. Consequently, the court re-summoned the PW-7 and PW-9 and recorded their evidence on 05.10.2020 and crossexamination was completed by Mr. Adnan Shuja Butt Advocate learned counsel for accused Dilawar Hussain on both PWs on 13.11.2020. When court asked the petitioner/accused Ch. Muhammad Anwar to produce his counsel for crossexamination on the PWs, he sought some adjournments on one or the other pretext and thereafter opted to file the instant application just to protract the trial which has been filed about one year after the passing of the impugned order.
So far as objection of learned defence counsel that learned Special Prosecutor filed fresh application under discussion without seeking prior permission of the court, in this regard, it is observed that there is no any law provided in NAO, 1999 or in the Code of Criminal Procedure, 1898 which bars, learned Special Prosecutor to file another application under Section 540 Cr.P.C. withdrawn without decision. Even, otherwise, Section 540 Cr.P.C. has fully empowered the court at its own even without any application of either party to resummon or re-call any PW or person already examined at any stage of the case, if evidence of such person or PW appears to it essential to the just decision of the case and the same situation is prevailed in the case in hand. Learned Special Prosecutor submits that application for recalling/resummoning of PWs was not filed for creation or introducing a new evidence rather some of the documents were to be exhibited in evidence which were already part of the file and could not be exhibited in previous examination-in-chief inadvertently. In the light of above discussion, observation an analysis the court does not find anything on file which suggests to recall the impugned order passed my learned predecessor. Hence, the instant application having no force is hereby dismissed.”
2. Learned counsel for the petitioner submits that impugned order is against the facts of the case and relevant law on the subject; further adds that through impugned order “lacuna” left by the prosecution is going to be filled in and “right” accrued in favour of the petitioner is being snatched; finally prays for setting-aside both the orders mentioned above.
3. Learned Special Prosecutor for NAB has supported both the orders mentioned above.
4. Arguments heard. Available record perused.
5. It is well settled principle of law that criminal justice system is not adversarial rather inquisitorial and Court has to reach at just decision of the case; any piece of evidence which is essential for just decision of the case, has to be brought on record irrespective of the fact that either it favours one party or goes against other; any delay for filing any application for calling/recalling of witnesses or bringing any piece of evidence on record, is immaterial; similarly, filling lacuna in the case is also immaterial if said piece of evidence is otherwise necessary for securing ends of justice i.e. essential for just decision of the case. It has been noticed that evidence, which has been allowed to be brought on record of the case through orders (mentioned above), is otherwise essential for just decision of the case and accused party certainly has right to challenge the veracity of said piece of evidence by way of cross-examination.
As far as contention of learned counsel for the petitioner that right/benefit accrued in favour of accused has been taken away through impugned orders, is concerned, same does not hold the water for the prime reason that such approach may be adopted in civil lis but not in criminal case where approach of the Court must be inquisitorial in nature; in this regard, case of “Abdul Latif Aasi versus The State” (2001 P.Cr.R 548) can be advantageously referred and its relevant Paragraph No.7 is hereby reproduced: -
“7. The main plank of the petitioner’s arguments before me has been that in our adversarial system of justice there was no scope for an inquisitorial approach adopted by learned Trial Court through the impugned order passed by it. However, the learned counsel for the petitioner have failed to point out any statutory sanction for observing that our system of justice is adversarial and not inquisitorial. If one looks at the history of our judicial system one may notice that this concept has gradually developed therein as a rule of prudence and practice mainly as regards civil litigation wherein the parties to a lis are required to lay their respective claims before the Trial Court and then substantiate, the same through evidence to be led by them. There are indications available in the Code of Civil Procedure which support the perception that civil litigation in our system is, by and large, adversarial in nature. But even there the inherent and general powers of the court, and even some specific powers, sometimes cut across that concept. A general acceptance of that concept in the civil litigation is, even otherwise, understandable. In a civil lis, more often than not, it is the parties to the lis alone who are interested in its outcome and effect. This cannot be said to be true for a criminal case wherein an offence committed by an individual is considered to be an offence not only against his victim but also against the whole society and the State. Thus, in a criminal case an intentional or an un-intentional lapse on the part of the complainant, the Investigating Officer or the prosecuting counsel is not to be allowed to stand in the way of a Trial Court to rectify that lapse by calling in evidence on its own if such evidence can have a bearing on the determination of guilt or innocence of the accused person. Such a power has to be conceded to a Criminal Court in the larger interest of the community at large. Looked at in this context the stage of a trial appears to be irrelevant to an exercise of such a power of the Court and the only factor relevant to the exercise of such a power cannot be other than the relevance of the evidence called.”
It goes without saying that Ch.1-E of the Volume III of Lahore High Court Rules and Orders deals with recording of evidence in criminal cases and relevant portion of its Rule 2 clearly reflects as under: -
“2. Duty of Court to elucidate facts.---.................................. ………………………………………………………………….. .........................a Judge in a Criminal trial is not merely a disinterested auditor of the contest between the prosecution and the defence, but it is his duty to elucidate points left in obscurity by either side, intentionally or unintentionally, to come to a clear understanding of the actual events that occurred and to remove obscurities as far as possible. The wide powers given to the court by [Article 161 of the Qanun-e-Shahadat, 1984] ***[…] should be judiciously utilized for this purpose when necessary”. (emphasis added)
Similarly, Article 161 of the Qanun-e-Shahadat Order, 1984 is also relevant and concerned portion of the same is hereby reproduced: -
“161. Judge’s power to put question or order production.---The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant, and may order the production of any document or thing and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:”
As far as another contention raised by learned counsel for the petitioner that impugned order has filled lacuna left by the prosecution is concerned, same is also of no legal worth because when learned trial court has clearly observed that evidence “summoned through impugned order” is necessary for just decision of the case, then objection regarding curing lapses/omissions left by any party or filling lacuna left by any party becomes irrelevant and it becomes mandatory for the Court to summon and examine such evidence; in this regard, guidance has been sought from the case of “Muhammad Azam versus Muhammad Iqbal and others” (PLD 1985 Supreme Court 95) and relevant portions from its Pages No. 118, 121 and 122 are hereby reproduced: -
(Page 118) “The duty nevertheless lay squarely on the trial Court to summon the entire available evidence on this controversy and record/ admit the same by virtue of power under section 540, Cr.P.C. It reads as follows:
“540. Power to summon material witness or examine person present. Any Court may, at any stage of any inquiry, trial of other proceeding 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 any such person if his evidence appears to it essential to the just decision of the case.”
This provision is divided into two parts: one where it is only discretionary for the Court to summon a Court witness suo motu or on application, and the second part where it is mandatory for the Court to do so. The main condition to be satisfied with regard to the second part is that the evidence to be summoned under this part should appear to the Court to be essential to the just decision of the case.”
(Page 121) “It needs to be observed that for purpose of acting under section 540, Cr.P.C. (whether the first or second part), it is permissible to look into the material not formally admitted in evidence, whether it is available in the records of the judicial file or in the police file or elsewhere. The perusal of both these records would show that if evidence, in connection with the items already noticed, would have been properly entertained the reasoning and decision of the learned two Courts might have been different.
Sometimes apprehension is expressed that any action by the trial Court under section 540, Criminal Procedure Code would amount to filing the gaps and omissions in the version or evidence of one or the other party. It may straightaway be observed that in so far as the second part of section 540 goes, it does not admit any such qualification. Instead, even if the action thereunder is of the type mentioned, the Court shall act in accordance with the dictates of the law. In fact the Court has no discretion in this behalf. It is obligatory on it to admit evidence thereunder if it is essential for the just decision of the case.” (emphasis added)
(Page 122) “In yet another case Rashid Ahmad v. The State (1), this Court made it more clear that “a criminal Court is fully within its rights in receiving fresh evidence even after both the sides have closed their evidence and the case, is adjourned for judgment, for, till then the case is still pending. The only question therefore, is as to whether in the interest of fairness further opportunity should have been given to the accused”; and, it was held that “there is no bar to the taking of additional evidence in the interest of justice, at any stage of inquiry or trial as provided by the provisions of section 540, Cr.P.C.” In these cases if the question regarding so-called filling of the gaps would have been raised more squarely, the answer in view of what has been noticed above would have been the same as already rendered; namely, that if it is essential for the just decision of the case, then the same is the command of the law under the second part of section 540, Cr.P.C. It would not be possible to canvass that when the action under the said provision amounted to so-called filling of a gap, the Court would for this reason, avoid its duty to admit the additional evidence. Two more decisions by this Court as illustrative of the practice, may also be noted. There are: Bashir Ahmad v. The State and another (2), and Yasin alias Cheema and another vs. The State (3).” (emphasis added)
In this regard, further guidance has been sought from the case of “The State Vs. Muhammad Yaqoob and others” (2001 SCMR 308) and relevant portions from its Page No.325 are hereby reproduced: -
“It is thus manifest that calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose but it is the duty of the Court to do complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object.” (emphasis added)
“It is correct that every criminal case has its own facts and, therefore, no hard and fast rule or criteria for general application can be laid down in this respect but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of section 540, Cr.P.C. it is obligatory on the Court to examine such a witness ignoring technical/formal objection in this respect as to do justice and to avoid miscarriage of justice”. (emphasis added)
6. In view of what has been discussed above, it has been found that learned trial court while observing that “evidence” is not newly created rather already available, otherwise relevant and is necessary for just decision of the case, has rightly allowed the same to come on record through impugned orders particularly when accused party has been allowed to cross-examine the same; therefore, both the impugned orders dated: 08.12.2020 and dated: 26.11.2019 passed by learned Judge, Accountability Court No.IV, Lahore, are perfectly valid, wellreasoned and quite in accordance with “law, peculiar facts and circumstances” of the case; hence, need no interference. It goes without saying that august Supreme Court of Pakistan in the case of “Farooq Hussain and others Versus Sheikh Aftab Ahmad and others” (PLD 2020 Supreme Court 617) has clearly observed that if the Court having examined the decision challenged before it, is satisfied with its reasoning & conclusions and is of the view that it does not call for any interference, then Court can simply endorse the impugned decision and adopt the reasoning of the Court below; relevant portion of the said order is hereby reproduced: -
“It is emphasized that if this Court, having examined the judgment challenged before it, is satisfied with its reasoning and conclusions and is of the view that it does not call for any interference, this Court can simply endorse the impugned judgment and adopt the reasoning of the court below. In such a case, re-tracing the same path travelled by the court below appears to be an unnecessary exercise and a waste of public time-time which can be allocated to other cases where the decisions of the courts below have been overturned or modified. Finding no reversible error in the judgment, a concise, simple order can suffice. On the other hand, if the Court is to reverse or modify the judgment of the court below, the reasons for the reversal or modification must be set forth.
3. This approach adopted by the court, is by no means a short-cut which is offensive to fair trial under Article 10-A of the Constitution nor does it in any manner undermine due process and fair-play. It is simply a creative way forward that spares the Court from writing opinions where a mere adoption of a well-reasoned judgement of the court below through a short order serves the purpose adequately.”
7. For the foregoing reasons, instant petition is without merits and is hereby dismissed in limine.
(FAROOQ HAIDER) JUDGE
(CH. MUSHTAQ AHMAD) JUDGE
APPROVED FOR REPORTING
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