2021 LHC 23
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 evidence by way of cross-examination.
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.
Writ Petition-Criminal Proceedings-Direction to Subordinate Court
337-21
SAJID ALI VS STATE ETC
Mr. Justice Farooq Haider
12-01-2021
2021 LHC 23
IN THE LAHORE HIGH COURT,
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
Writ Petition No.337 of 2021
Sajid Ali vs The State and others
Date of order: 12.01.2021
Mahar Muhammad Akram Bangrath, Advocate for the petitioner.
M/s Muhammad Waseem-ud Din Mumtaz, Assistant Advocate General, Punjab and Ansar Yaseen, Deputy Prosecutor General, on Court’s call.
Order
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., Sajid Ali (petitioner) has challenged the vires of order dated: 16.12.2020 passed by learned Addl. Sessions Judge, Vehari, whereby criminal revision petition filed by the petitioner for recalling of order dated: 26.10.2020 passed by learned SCJ (Criminal Division)/ Magistrate Sec: 30, Vehari, has been dismissed; relevant Paragraph No.5 of said order dated: 26.10.2020 is hereby reproduced: -
“After hearing arguments advanced by learned counsel for parties and perusal of record, it reflects that statement of above said witness has already been recorded as PW-1. The documents which petitioner wanted to produce are available and attached with the file. The version of the petitioner is that documents i.e. complaint, form No.2 were not exhibited during course of evidence recorded earlier, hence witness may be resummoned and permission may be granted to produce the said documents accordingly. I am of the view that documents which petitioner wanted to produce are important, relevant and necessary for just decision of the case. If a document has not been produced in the evidence mistakenly during the course of recording evidence, then court has discretion and authority to get re-summon the witness u/s 540, Cr.P.C. in order to get record his statement and grant him permission to produce said document in the interest of justice. I am of the view that it would not amount to fill the lacuna of the case by the prosecution. The case law produce by the accused is not relevant in circumstances because the facts stated in the case law produced by the accused were different from the instant case. In the light of above said discussion, I am of the view that application of the petitioner is genuine, hence same is accepted in the interest of justice and in consequence witness Mehfoozul-Haq is summoned u/s 540, Cr.P.C. to get record his evidence.”
Similarly, relevant Paragraph No.5 of impugned order dated: 16.12.2020 is also reproduced for ready reference: -
“Perusal of the record indicates that Mehfooz-ul-Haq complainant of the case got recorded his evidence as PW-1 but in his evidence, the complaint as well as documents prepared by the said complainant could not be get exhibited, that application was moved for re-summoning of the said witness in order to get exhibited the said document which was accepted by the learned trial court. Feeling aggrieved, this revision petition was filed. The documents are already available on the record. The complaint which set the law in motion is on the file. The court has to give its finding after perusing all these documents. For the sake of arguments, if the said documents are not exhibited even, then the court take judicial notice of these documents in order to reach at the just decision. Even more, mere exhibition of any document does not mean that it stand proved because the criteria for proving the document is somehow different. Hence, I hold that no illegality or irregularity was committed by the learned trial court warranting interference through this revision petition. As such, this revision petition is dismissed. File be consigned to record room after its due completion.”
2. Learned counsel for the petitioner submits that Sajid Ali (petitioner) is facing trial as accused in case arising out of F.I.R. No.488/18 dated: 01.09.2018, registered under Sections: 21-A, 26-A, 23-A of the Agricultural Pesticides Ordinance, 1971 at Police Station: Saddar, District: Vehari and evidence of Mehfooz-ul-Haq, Agricultural Officer/Inspector Pesticides, Vehari (complainant of the case) was recorded by the learned trial court as PW-1 on 17.02.2020 (copy of the same has been appended with the instant petition as Annexure-D); on 10.03.2020, an application was filed by the prosecution for exhibiting documents i.e. written complaint for registration of case, Form-11 and case property , which were exhibited by the learned trial court vide order dated: 10.03.2020, said order was challenged through revision petition before learned Revisional Court by the petitioner, which revision petition was accepted and resultantly, said order was set-aside vide order dated: 21.09.2020 passed by learned Addl. Sessions Judge, Vehari. Learned counsel further submits that on 26.10.2020, prosecution filed another application for re-summoning of Mehfooz-ul-Haq (PW-1) and exhibiting the relevant documents, which application was allowed vide order dated: 26.10.2020 passed by learned SCJ (Criminal Division)/Magistrate Sec:30, Vehari (copy of the same has been appended with instant petition as Annexure-F/1), petitioner again challenged said order through criminal revision petition but same was dismissed vide impugned order dated: 16.12.2020 passed by learned Addl. Sessions Judge, Vehari; also submits that impugned order is against the facts of the case and relevant law on the subject; also 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 Assistant Advocate General, Punjab and learned Deputy Prosecutor General have 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 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:”
Furthermore, Section: 94 Cr.P.C. is also relevant, therefore, its concerned portion is also being reproduced: -
“94. Summons to produce document or other thing.—(1) Whenever any Court, or any officer in charge of a policestation considers that the production of any document or other thing is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order:”
As far as another contention raised by learned counsel for the petitioner that impugned orders (mentioned above) 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 1984 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 “the documents are already available on the file of the case and similarly case property is also already existing”, has rightly passed the impugned order and same has been rightly upheld by the learned Addl. Sessions Judge, Vehari/ Revisional Court. Needless to observe that petitioner/accused will be afforded sufficient opportunity through cross-examination for challenging the veracity of said evidence. Therefore, impugned order dated: 16.12.2020 passed by learned Addl. Sessions Judge, Vehari and order dated: 26.10.2020 passed by learned SCJ (Criminal Division)/ Magistrate Sec: 30, Vehari, are perfectly valid, well-reasoned 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.
APPROVED FOR REPORTING
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