2016 P Cr. L J 599
MUHAMMAD ANWAR Versus
ADDITIONAL SESSIONS JUDGE MIAN CHANNU and 7 others-
W. P. No. 14300 of 2011
Examination of witnesses by police---Cursory or supplementary statements, recording of---Principles as to requirement---Complainant, during trial on private complaint, filed application for summoning of witnesses, which was allowed by Trial Court---Revisional court, however, set aside order of Trial Court for absence of cursory statements of proposed witnesses---Under Ss. 244(2) & 265-F of Cr.P.C., court, having ascertained, either from Public Prosecutor or from complainant, names of any person who was likely to be acquainted with facts of case and was able to give evidence for prosecution, would summon such person to give evidence before it---Vast powers had been given to trial court with regard to summoning of any person as witness---Recording of cursory statement or statement under S. 161, Cr.P.C. was not requirement of law---Names of witnesses, which were sought to be summoned, had been duly incorporated in calendar of witnesses, which was attached with private complaint---Ground that accused would not have opportunity to confront the witnesses with their earlier statements under S. 161, Cr.P.C. or their cursory statements, had not backing of law---When witnesses would appear in witness box, rival party would have ample opportunity to cross-examine them to shatter their testimony---High Court, setting aside order of revisional court, restored that of Trial Court---
ORDER
MUHAMMAD QASIM KHAN, J.---Briefly the facts of the case are that regarding an occurrence earlier the present petitioner got registered an FIR No.193/2001 at police station Chab Kalan, but after cancellation of the said FIR, he filed a private complaint under sections 452/148/149, P.P.C. against the private respondents, wherein, accused were summoned and charge sheeted. During trial the petitioner/complainant filed an application for summoning of the witnesses mentioned in the calendar of witness attached to the private complaint. The said application was allowed by the learned trial court vide order dated 23.12.2009, but on a criminal revision filed by the respondents/accused the said order was upset by the learned Additional Sessions Judge vide order dated 27.03.2010. This order of the revisional court is under challenge through the instant writ petition.
2. The contention of learned counsel for the petitioner is that the witnesses whose statements under section 161, Cr.P.C. or for that matter their cursory statements are not recorded, cannot be subsequently summoned during trial for the purposes of recording their evidence, as it will prejudice the rights of the accused side.
3. The learned Law Officer assisted by learned counsel for the respondent/complainant opposed this petition by arguing that there is no bar in criminal law to summon a witness at any stage, whose statement is considered necessary by the learned trial court to reach at fair determination of trial.
4. Heard. Record perused.
5. A perusal of the impugned order dated 27.03.2010 passed by learned Additional Sessions Judge, reveals that the same is based on the sole ground that cursory statements of the witnesses sought to be summoned by the petitioner were not recorded, therefore, they could not be summoned, as in the absence of their cursory statements the accused would not have opportunity to confront them. I am afraid the approach of the learned Additional Sessions Judge while allowing the criminal revision is totally misconceived. Section 244(2), Cr.P.C. dealing with trial of cases by Magistrates and section 265-F(2), Cr.P.C. relating to trials before High Court and Court of Session, when read together, in clear terms provide that the Court shall ascertain from the public prosecutor, or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it. It therefore, is quite clear that vast powers have been given to the trial court with regard to summoning of any person as witness but very slight condition that such person shall be acquainted with the facts and will also be able to give evidence. As shall be seen from the above referred provisions, recording of cursory statement or statement under section 161, Cr.P.C. is not the requirement of law. The sole purpose of inserting these sections in the Code of Criminal Procedure, 1898 is that fair trial must be ensured.
6. Here in this case, it is not disputed that the names of the witnesses sought to be summoned, were duly incorporated in the calendar of witnesses which had been attached with the private complaint. The ground that accused/respondents would not have opportunity to confront them with their earlier statements under section 161, Cr.P.C. or their cursory statements, has no backing of law, as when those witnesses would appear in the witness box the rival party would have ample opportunity to cross-examine them so as to shatter their testimony. As compared to the order of learned revisional court, the learned trial court/Magistrate Section 30, Mianchannu had passed a well reasons order on correct legal approach. Consequently, this writ petition is allowed, the order dated 27.03.2010 passed by learned Additional Sessions Judge is set-aside and the order dated 23.12.2009 passed by the learned trial court is resurrected.
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