S. 540---Power to summon material witness or examine person present---Scope---Section 540, Cr.P.C, empowers the Court to summon, examine, recall and.............

 2024 P Cr. L J 1401
Muhammad Ramzan Vs The State
Criminal Revision No. 352 of 2023.

S. 540---Power to summon material witness or examine person present---Scope---Section 540, Cr.P.C, empowers the Court to summon, examine, recall and re-examine any person, if his evidence appears to the said Court essential for the just decision of the case---Court can summon any witness at any stage subject to its satisfaction that the evidence would be a stepping stone for just decision---First part of the said section confers discretion, the second makes obligatory that recalling is essential for the just decision of the case, but, at the same time, there are some factors which restrain the Court from summoning, recalling or re-examining the witness as it should not be meant to fill in lacuna left by any party.

Summoning of witnesses for re-examination---Application of the prosecution for summoning the witnesses for re-examination was allowed---Validity---Petitioner had committed rape with his niece/victim resulting into her pregnancy and subsequent delivery of baby girl, who subsequently expired---Record showed that case was registered on 05.07.2021---Post mortem examination of deceased child was conducted on 21.05.2022 by the Woman Medical Officer, who extracted sample for DNA from spleen---Said sample was submitted on 30.05.2022 for Forensic DNA and Serology Analysis Report---Thereafter, the report of Forensic Science Agency in respect of Forensic DNA and Serology Analysis was issued on 30.09.2022---Despite this clear cut mentioning of the Forensic Science Agency, in respect of recovering of material evidence within 15 days of issuance of first report, the subsequent had been issued after more than one year---It was questionable as to why the report was requisitioned and submitted after such a long period---Statement of Woman Medical Officer was recorded on 18.05.2023 whereby said witness endorsed the report and based her final opinion on the said report and conclusion---Thereafter, on 23.08.2023 and on 08.09.2023, applications under Ss. 540, Cr.P.C., were filed on behalf of Public Prosecutor i.e. after about three months of statement of Woman Medical Officer, such delay raised an eye brow on these applications particularly when the copy of Forensic Science Agency Report in respect of Forensic DNA and Serology Analysis Report (Supplementary-I) had been perused, it seemed that the same was prepared on the basis of already submitted samples and at the specific request of submitting agency after a period of more than one year---Subsequent report was prepared and issued in response to fresh analysis request by the submitting agency bearing letter dated 21.06.2023---While analyzing the dates of examination of Woman Medical Officer, earlier issued report of Forensic Science Agency and of subsequent report, it was clear that the prosecution had recourse to the Forensic Science Agency for issuance of report in respect of question asked by the defence during the cross-examination of Woman Medical Officer---By doing so, it was crystal clear that the prosecution had made an attempt to fill in the lacuna pointed out by the defence during the course of cross-examination---Provisions contained in S.540, Cr.P.C, can be used to find out the truth but cannot be exercised for filling the gaps and lacuna left by either party---Court in exercise of its jurisdiction under provisions of S.540, Cr.P.C., would ensure that by summoning or recalling the Woman Medical Officer would meet the ends of justice but not to give illegal advantage to one party over the other and could not be used as a vehicle of exploitation---Duty of the Court is to administer justice in just and fair manner and not to assume the status of a prosecutor, to put an accused in undue advantage---

Judgment

---The revision petitioner Muhammad Ramzan, facing the trial of case FIR No.321 dated 05.07.2021, registered at the Police Station Qadir Pur Raan, District Multan for the offence under section 376 of the Pakistan Penal Code, 1860 (*P.P.C.) has called in question the order dated 09.09.2023 passed by learned Addl: Sessions Judge, Multan (*impugned order) whereby he not only allowed the prosecution to submit interim challan owing to receipt of supplementary PFSA report but also accepted application filed under section 540 of the Code of Criminal Procedure, 1898 for re-examination of lady doctor Zunaira (PW.

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2. The chronicle of this case is that respondent No.2 Ghulam Shabbir got the above noted case FIR registered with the allegation that petitioner has been committing rape with his niece/victim resulting into her pregnancy and subsequent delivery of baby girl. Notably, afterwards, the said child expired.

3. After registration of case, petitioner was arrested, investigation of the case was carried on and thereafter, report under section 173 Cr.P.C was submitted before the learned Trial Court. Whereupon, after fulfilling the legal requirements, learned Trial Court framed charge against the petitioner on 26.10.2022 and thereafter proceeded to record evidence. In this sequel, learned Trial Court recorded statement of Woman Medical Officer, lady doctor Zunaira Malik as PW.8, who got her statement recorded and also exhibited the PFSA report (Exh.PH/4). Upon the said PW/Woman Medical Officer, learned counsel representing the petitioner conducted the cross-examination. But, thereafter, public prosecutor moved an application under section 540 Cr.P.C for summoning of PFSA report bearing serial No.0000874019/0000874020 and report of PFSA bearing Serial No.0000892869/0000892870 as well as summoning of forensic scientist as witness. Another application under section 540 Cr.P.C was also moved on behalf of Public Prosecutor for re-summoning and re-examination of Dr.Zunaira (PW.

regarding medical opinion on the above-said report of PFSA. Learned trial court vide impugned order accepted both applications, being aggrieved of the said order, instant criminal revision has been filed by the petitioner.

4. Learned counsel for the petitioner inter-alia argued that the impugned order passed by learned Trial Court is illegal, against the law, facts, without lawful justification and coram-non-judice; that learned trial court by allowing the applications of the prosecution has erred in law and has granted leave to the prosecution to fill up the lacunas in the prosecution case which were pulled out by the learned counsel for the petitioner during cross-examination over the prosecution witnesses; that after a lapse of a considerable period, report of Punjab Forensic Science Agency in respect of DNA analysis has lost its authenticity and as such, the same cannot be allowed to be made part of the file, especially after cross-examination on the concerned PW. Finally prayed for acceptance of instant revision petition.

5. While, on the other hand, contradicting the contentions of learned counsel for the petitioner, learned Deputy Prosecutor General vehemently resisted this petition on the ground that impugned order is detailed and quite in accordance with law; that trial of the case is ongoing and there is no bar on re-examination of the Women Medical Officer as Section 540 Cr.P.C empowers the Court to summon the witnesses at any stage of trial in order to reach the just decision of the case; that at this particular stage of trial, it cannot be said that re-examination of the PW.8 would amount fulfilling the lacuna in the prosecution case as the said PW would obviously be available to the defence for the purpose of cross-examination; that it is a case of vital importance wherein the petitioner is accused of commission of rape with the victim, who became pregnant; that it is in the fitness of things to allow the prosecution to place on record the supplementary report of PFSA; as such learned Trial Court has not committed any illegality or irregularity while passing the impugned order, therefore instant revision petition merits dismissal.

6. Heard and perused the record.

7. From the matrix of the instant lis, following important situation requires to be addressed:-

"Whether re-summoning and re-examination of PW.8 and allowing the prosecution to place on record the Supplementary report of PFSA does or does not amount to fill up the lacuna of prosecution's case."

Before this Court proceeds to comment on the above said proposition, it would be appropriate to have a precise discussion on Section 540 of Cr.P.C. For convenience, the same is hereby reproduced:-

"540. Power to summon material witness or examine person present.--Any Court may, at any stage of any inquiry, trial or 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."

There is no cavil to the proposition that section 540 Cr.P.C empowers the Court to summon, examine, recall and re-examine any person, if his evidence appear to the said Court essential for the just decision of the case. The Court can summon any witness at any stage subject to its satisfaction that the evidence would be a stepping stone for just decision. The first part of the Section confers discretion, the second makes obligatory that recalling is essential for the just decision of the case. But, at the same time, there are some factors which restrains the Court from summoning, recalling or re-examining the witness as it should not be meant to fill in lacuna left by any party.

8. Now, therefore, this Court has to see as to whether the impugned order opens a gate for the prosecution to fill up any lacuna or not? In this regard, it has been noticed with grave concern that case was registered on 05.07.2021. The post mortem examination of deceased child was conducted on 21.05.2022 by the PW.8 Dr. Zunaira Malik/WMO Children Hospital, Multan, who extracted sample for DNA from spleen. The said sample was submitted on May 30, 2022 for Forensic DNA and Serology Analysis Report. Thereafter, the report of PFSA in respect of Forensic DNA and Serology Analysis was issued on 30.09.2022. The results and conclusion of the said report is reproduced hereunder:-

Results and Conclusion

Based on the DNA analysis, Muhammad Ramzan (item No.S1) cannot be excluded as being the biological father of source of DNA obtained from item No.1 (Guriya Bibi deceased), because they share alleles at all the genetic markers tested. Assuming 50% prior chance, the probability of paternity is 99.9999991% and combined paternity index (CPI) is 120.608.354.

It is quite surprising to note here that in the earlier submitted report, it has been categorically mentioned by the Punjab Forensic Science Agency under the head of Disposition of Evidence that:-

"Portion of the pertinent evidence item(s), if available, will be stored at all appropriate temperature in the laboratory. Please recover evidence material within 15 days of issuance of this report, otherwise evidence may be disposed of and laboratory will not entertain any claim."

Despite this clear cut mentioning of the Punjab Forensic Science Agency, in respect of recovering of evidence material within 15 days of issuance of first report whereas the subsequent has been issued after more than one year. It is questionable as to why the report was requisitioned and submitted after such a long period.

9. It is also worth mentioning here that the statement of PW.8 was recorded on 18.05.2023 whereby PW.8/WMO, endorsed the report and based her final opinion on above noted conclusion of the report. On the same day, learned defence counsel conducted cross-examination over the said PW. During the course of cross-examination, on the question of learned defence counsel, said PW deposed as under:-

"It is correct that PFSA report is not containing DNA matching of deceased child with Mst. Alishba."

Thereafter, on 23.08.2023 and on 08.09.2023, applications under section 540 Cr.P.C. were filed on behalf of Public Prosecutor i.e. after about three months of statement of PW.8, such delay raises an eye brow on these applications particularly when the copy of PFSA report in respect of Forensic DNA and Serology Analysis Report (Supplementary-I) have been perused, it seems that the same was prepared on the basis of already submitted samples and at the specific request of submitting agency after a period of more than one year. For ready reference, the relevant portion of the said report is hereby reproduced hereunder:-

Results and Conclusion.

Forensic DNA analysis report regarding the paternity of Guriya Bibi (deceased) has already been issued on September 30, 2022 bearing serial No.0000874019 and 0000874020 to CPO, Multan in accordance with analysis request letter No.2435/D-Legal (dated 01.06.2022)

This supplementary report is being issued in response to fresh analysis request by the submitting agency letter No.2672/D-Legal (dated 21.06.2023)

Based on the DNA analysis, Alishba (item No.VI) cannot be excluded as being the biological mother of source of DNA obtained from item No.1 (Guriya Bibi deceased), because they share alleles at all the genetic markers tested. Assuming 50 % prior chance, the probability of parentage is 99.996% and combined parentage index (CPI) is 25.974.

NIST Caucasian population database of unrelated individuals was used for the frequency calculations."

The above reproduced portion of the subsequent report makes it crystal clear that the same was prepared and issued in response to fresh analysis request by the submitting agency bearing letter No.2672/D-Legal (dated 21.06.2023). While analyzing the dates of examination of PW.8, earlier issued report of Punjab Forensic Science Agency and of subsequent report, this Court has reached at an unambiguous conclusion that the prosecution has recoursed to the Punjab Forensic Science Agency for issuance of report in respect of question asked by the learned defence counsel during the cross-examination of PW.8. By doing so, it is crystal clear that the prosecution has made an attempt to fill in the lacuna pointed out by the learned defence counsel during the course of cross-examination. It has been held by the august Supreme Court of Pakistan in case law titled "Shah Jahan and another v. Raheem Shah and others" that "No one could be permitted to fill in the lacunas at the belated stage according to his own whims."

10. The powers conferred thereupon by the Court, thereunder the provisions contained in section 540 Cr.P.C could be used to find out the truth but could not be exercised for filling the gaps and lacuna left by either party. Reliance can be placed on the case of "Muhammad Afzal v. The State" and "Muhammad Khan v. The State".

11. This Court in exercise of his jurisdiction under provisions of Section 540 Cr.P.C. shall ensure that by summoning or recalling the PW.8 would meet the ends of justice but not to give illegal advantage to one party over the other and could not be used as a vehicle of exploitation. It is settled principle of law that the duty of the Court is to administer justice in just and fair manner and nevertheless, assume the status of a prosecutor, to put an accused in undue advantage. Reliance in this regard can be placed on the case of "Abdul Khalid v. Ansar Mehmood", "Mian Manzoor Ahmed Watto v. The State", "Liaquat Ali and others v. The State".

12. It is also observed that apparently the discretion vested in a Court appears to be unrestricted one, however, such power being in the nature of the public trust can only be exercised if such evidence appears to be essential for the just decision of the case and not merely to fill in the lacuna in a case owing to gross negligence, inefficiency, carelessness and recklessness of a party. Guidance have been sought from the case law titled "Dildar v. The State through Pakistan Narcotics Control Board, Quetta".

13. This Court is also in agreement with the argument of learned counsel for the petitioner that while exercising powers under section 510 Cr.P.C. the court if considers necessary in the interest of justice, may summon and examine the person by whom report has been made, and in case of any ambiguity in the report seek clarification thereof on the basis of existing report of the Government and to allow the Government analyst to conduct a fresh test or prepare another report, would amount for giving the chance to the prosecution for filling the gaps and lacunas in the report already submitted. In this respect, guidance can also be sought from the case law titled "Qaisar Javed Khan v. The State through Prosecutor General Punjab, Lahore and another".

14. The Court being a neutral arbiter has to dispassionately appreciate, appraise, examine and weigh the evidence placed before it, rather than by ignoring the evidence and embarking on a probing journey. In an adversarial system the role of Judge is that of a neutral empire and Judge has to ensure fair trial between the prosecution and the defense on the basis of evidence before it. The Judge should not enter the arena so as to appear taking sides of either party. The Court cannot allow one of the parties to fill lacunas in their evidence or extend second chance to a party to improve their case for or the quality of evidence tendered by them, any such step would tarnish the objectively and impartiality of the Court, which is hallmark, such favourd intervention, no matter how well-meaning, strikes at the very foundation of a Trial, which cannot be allowed at any cost.

15. For the foregoing reasons, instant petition is accepted and impugned order dated 09.09.2023 passed by learned Addl: Sessions Judge, Multan is hereby set aside and declared to be of no legal effect. Consequently, the applications moved under section 540 Cr.P.C on behalf of prosecution shall stand dismissed.

16. Before parting with the judgment, I feel it necessary to mention here that discussion in this judgment shall not in any way prejudice the merits of the case.