PLD 2022 Lahore 319
In a journey to prosecute an offender, process experiences shortcomings in the system due to many reasons including incompetence, different ideologies and silo mentalities. Looking to each other, a PingPong exercise between the stake holders will not help to improve the system, blame game is not the solution; everybody has to put his due to develop a Modus Vivendi to give a push or big bang to set the system on track. Court should not look up and down or askance, it has to be done by us, the people of Pakistan. Presently what the paradoxical moaning the criminal justice system has faced during a trial is calculated through excuses often made;
“Sufficient evidence has not been made available; police have not collected the relevant material; prosecution has withheld the material witnesses; complainant is prosecuting wishy subjects; official and bureaucratic discourse, an obstacle to get the relevant material; experts have least concern to express opinion; deprived protection, a truthful witness was available; social media dropped a hint but lead was missed; modern devices can help procured the evidence through Skype, live link or other modes, prosecution is not interested; witness has died yet evidence is not being procured in the form of Shahada ala alshahada; some of the witnesses were intentionally skipped in the challan; witness already recorded has given a fishy statement; person present in the court though knew the material facts yet was refused opportunity; summoning of Radiologist, forensic experts, specialists, interpreter was inevitable; child witness was required to be summoned though grown up now; new fact was born out during the evidence which has lost sight of; evidence later discovered did not find space during the trial”.
For all above situations and others, the panacea, legislature has introduced is the form of powers under section 540 of Cr.P.C. This section among some others is an exception to adversarial system and an attempt to make inroads through an inquisitorial say amidst such system. The object and purpose of this section is very clear, it gets a status of overarching component of criminal justice system being a brainchild of inherent right of fair trial and due process, which now is part of constitutional regime for fundamental rights. This section as couched and in the womb of constitutional framework would be regarded as supreme law with limitations imbedded therein and the judicial restraint interpreted through legal precedents of Superior Courts on the subject section. This is the only section which is so responsive to all lame excuses in the system for noncollection of evidence and missed prosecution of the offenders. Apart from this, some more sections of law also carry an inquisitorial say which includes section 94, 337/338 & 539B of Cr. P.C and Article 158 & 161 of Qanun-e-Shahadat Order, 1984. Some special provisions of Punjab Forensic Science Agency Act, 2007.
The section authorizes the court to use discretion for summoning of any person as witness at any stage of an inquiry, trial or other proceedings. For stages, the legislature has used the word “may” which means that an essential witness whose summoning the court considers is not appropriate at any preliminary or intermediate stage, court can decline to issue process for his appearance and such order can be reviewed at a later stage if the evidence of such witness becomes essential for just decision of the case because in that case it is imperative on the court, for which the word “shall” has been used in later part of this section. The expression “just decision of the case” is also meaningful, which connotes the taking of decision to step ladder onto a next stage in the process. This section authorizes to call the witness during inquiry, trial and other proceedings; therefore, if during hearing of bail petition, court considers summoning of any person for just decision of bail petition it can do so. Some other proceedings of like nature i.e., inquiry into age of the accused, competency of person as witness, request for witness protection, legal assistance to the accused or victim, ascertaining mental health of an accused, exhumation process, reexamination of injured, consideration for granting pardon to approvers, request for withdrawal from prosecution, are the areas could be subject to summoning of any person as witness to understand the nitty-gritties, because prosecuting an accused is a serious business which should not be let loose on technical excuses. Though there are different types of inquiries in the Cr P.C, yet when the challan is put to the court, all the proceedings before framing of charge are also the stages of inquiry. Court while making mind to summon or not to summon the accused person can call any witness to understand hyper technicalities involved in a case. Further stage when accused did not appear despite service, the court for stepping forward has to call the relevant person to inform about the execution of process or otherwise against the accused. Process further continues when the accused put appearance and raises any question with respect to legal or other substantial lacuna in processing the case further; court should see who would be best person to address this lacuna. Any question for supply of statements and documents under sections 241A & 265C of Cr. P.C. is to be addressed by the court in this room of inquiry. Challan by police forwarded with a report u/s 9(7) of Punjab Criminal Prosecution service (Constitution, Function and Powers) Act, 2006 is read as “information” for accusation against the proposed suspect/offender while this information is when agreed by the court, it transformed in to a “Charge” and status of suspect/offender becomes an accused. This stage if requires any understanding with respect to availability of all relevant material or requisite sanction, court can summon any person as witness for taking just decision. Even court while framing charge has to attend the legal requirement mentioned in section 265-D Cr. P.C to understand the material placed before it so as to formulate a precise allegation to charge or proceed to discharge the suspect/offender as the case may be, or decide to stay the proceedings u/s 249 of Cr. P.C. The approach of courts should be dynamic in tracking the proceedings and stages thereof to exercise powers under this section in order to make a just decision in the circumstances.
There are certain limitations for exercising discretion under this section which the superior courts have time to time warned must be attended with application of judicious mind; some of the limitations outlined are that; if the attempt is to fill the lacuna, to linger on the process unnecessarily, evidence is not essential for the just decision of the case, evidence is not supportable to fact in issue, summoning would create inordinate delay in the process and many other as the circumstances demand.
The phrase “at any stage” is obliviously encompasses the stage of final arguments or later if the case is pending for decision; therefore, when a judge is about to lay hands on writing a judgment came across that certain witnesses though were necessary but have not been examined, he can exercise powers under this section.
Finally, it was ruled that court should not sit as silent spectator to draw adverse inferences against the parties for withholding of a necessary witness; the expression of court was in following terms;
“No doubt, illustration (g) to Section 114 of the, Evidence Act entitles the Court to presume that evidence which could be and is not produced would, if produced, be unfavourable to the person withholding it. Nevertheless, Section 114 notwithstanding, for the benefit of subordinate Courts I should like to stress that in the trial of criminal cases it should not be necessary for them to rely on mere presumptions when the second part of Section 540 of the Code obliges them to summon the witness in question, and at least criminal Courts (unlike civil Courts, for the analogous provision of Order XVI, Rule 14 of the Code of Civil Procedure gives the civil Court merely discretionary authority) are not entitled to level the type of criticism just referred to”.
Courts when hold inquiry in a complaint for private prosecution u/s 202 Cr. P.C, ample powers are available to call any witness or material at preliminary or later stage. For this purpose, courts can call for police record as well.
It is trite that complainant can obtain the copies of statement of witnesses recorded u/s 161 of Cr. P.C, and court cannot refuse supply of such statement.
Summoning of any witness some time involves complex legal question; therefore, it should be ordered after hearing both the parties and particularly the prosecutor who is the Incharge of the case, his role is not diminished even if the case is prosecuted in private complainant; he obviously is at guard to see if any material prejudicial to state case should not be brought on the record. He otherwise being State representative is under constitutional duty to ensure fair trial and observance of due process. Police file is the source of evidence for the courts and in every trial, court should call for police file for its thorough reading and examination, so as to understand the nature and volume of incriminating material available therein. Court while summoning a witness should also take benefit from the Case Review report filed by the Prosecutors u/s 9 (7) of The Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 on the basis of evidential and public interest tests or through threshold test some time applied by them during seeking remand of accused to police custody or on any interim report observing therein the nature and extent of evidence available so far and what further evidence they expect during the investigation. 11. Court while summoning any witness must bear in the mind that a witness called and examined or recalled or reexamined u/s section 540 Cr.P.C. retains his character as a prosecution or defence witness and he would be a court witness simpliciter if he was cited neither a prosecution witness nor a defence witness. If any given up prosecution witness or defence witness is recalled, court can allow the respective party to put question to their own witnesses under Article 150 of Qanun-e-Shahadat Order, 1984 which is not meant for asking questions only to hostile or resiled witnesses.
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