اگر کسی بھی فوجداری مقدمہ میں کسی گواہ کا 161 کا بیان نہ لیا گیا ہو، لیکن ایف آئی آر میں گواہ کا نام ہو ،تب بھی اس گواہ کا بطور گواہ کسی بھی فوجداری مقدمہ میں بیان لیا۔جاسکتا ہے۔۔

 Land Mark Judgment on section 540 crpc...

2022 SCMR 1882

Witness mentioned in FIR but whose statement is not recorded under section 161, Cr.P.C.---Whether such witness could be examined under section 256-F or section 540, Cr.P.C. and his evidence relied upon---Held, that perusal of section 265-F, Cr.P.C. shows that nowhere in the said section it is mentioned that only those witnesses could be examined whose statements under section 161, Cr.P.C. have been recorded---Under section 265-F, Cr.P.C. the Trial Court is not bound to record the statements of only those witnesses who have been listed in the calendar of witnesses---Furthermore there is no bar that a witness, whose statement under section 161, Cr.P.C. had not been recorded at the time of investigation, cannot be allowed to be examined under section 540, Cr.P.C.---When a witness is examined in Court, whose statement has not been recorded at the time of investigation under section 161, Cr.P.C., the evidentiary value to be attached to the evidence of such witness has to be looked into and if it is found that prejudice has been caused to the accused then the evidence of such witness may or may not be acted upon.

To arrive at a just conclusion, the courts can call any person likely to be acquainted with the facts of the case after ascertaining it from the Public Prosecutor or the complainant, subject to general provisions that summoning of any such witness does not cause delay or defeat the ends of justice. Section 265-F(2) of Cr.P.C empowers the Courts to summon a person, after having been ascertained from the Public Prosecutor or the complainant, who is likely to be acquainted with the facts of the case, to be able to give evidence for the prosecution. Section 265-F(7), Cr.P.C grants even to the accused a right to apply for summoning any witness and production of documents. The very purpose of section 265-F, Cr.P.C is to ensure the concept of a fair trial and to achieve this purpose equal opportunity has been given to both the accused and the prosecution for summoning the evidence. It is nowhere mentioned in this section that only those witnesses could be examined whose statements under section 161, Cr.P.C. have been recorded. Under this provision of law i.e. section 265-F, Cr.P.C the Trial Court is not bound to record the statements of only those witnesses who have been listed in the calendar of witnesses. On the other hand, section 540, Cr.P.C. empowers the Trial Court to summon a material witness even if his name did not appear in the column of witnesses, provided his evidence is deemed essential for the just and proper decision of the case. Section 540 is divisible in two parts. In the first part, discretion is given to the Court and enables it at any stage of an inquiry, trial or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person present in the Court, or (c) to recall and re-examine any person whose evidence had already been recorded.

On the other hand, the second part appears to be mandatory and requires the Court to take any of the steps mentioned above if the new evidence appears to be essential to the just decision of the case. The object of the provision, as a whole, is to do justice not only from the point of view of the accused and the prosecution but also justice from the point of view of the society. The Court examines evidence under this section neither to help the prosecution nor to help the accused. It is done neither to fill up any gaps in the prosecution evidence nor to give it any unfair advantage against the accused. Fundamental thing to be seen is whether the Court considers this evidence necessary in the facts and circumstances of the particular case before it. If this results in only "filling of lacuna" that is purely a subsidiary factor and cannot be taken into consideration. There is no bar that a witness, whose statement under section 161, Cr.P.C. had not been recorded at the time of investigation, cannot be allowed to be examined under section 540, Cr.P.C. When a witness is examined in Court, whose statement has not been recorded at the time of investigation under section 161, Cr.P.C., the evidentiary value to be attached to the evidence of such witness has to be looked into and if it is found that prejudice has been caused to the accused then the evidence of su ch witness may or may not be acted upon.