PLJ 2025 Cr.C. 422
[Lahore High Court, Lahore]
Present: Farooq Haider, J.
GHULAM MURTAZA--Appellant
versus
ADDITIONAL SESSIONS JUDGE, etc.--Respondents
Crl. Rev. No. 74970 of 2024, decided on 17.3.2025.
Criminal Procedure Code, 1898 (V of 1898)--
--ایس ۔ 265-ایف ۔-- استغاثہ کے لیے ثبوت-- اب تک یہ اچھی طرح طے ہو چکا ہے کہ استغاثہ کا یہ اختیار ہے کہ وہ اپنے مقدمے کو ثابت کرنے کے لیے اپنی پسند کا ثبوت/گواہ پیش کرے ۔
----S. 265-F--Evidence for prosecution--By now it is well settled that it is prerogative of prosecution to produce evidence/witness of its own choice to prove its case. [P. 426] A
2008 SCMR 849.
Prosecution Witness--
- ملزم نہ تو عدالت کے ذریعے کسی گواہ کو "پراسیکیوشن گواہ" کے طور پر پیش کرنے کے لیے پوچھ سکتا ہے اور نہ ہی پراسیکیوشن پر مجبور کر سکتا ہے ، تاہم پراسیکیوشن کے ثبوت ریکارڈ کرنے اور ملزم کی جانچ پڑتال کے بعد ، وہ (ملزم) اپنا کوئی تحریری بیان عدالت کے سامنے رکھ سکتا ہے اور اپنا دفاع کرنے کے بعد ، وہ کسی گواہ کی جانچ پڑتال یا کسی دستاویز یا دوسری چیز کی پیش کش کے لیے مجبور حاضری کے لیے عمل جاری کرنے کے لیے عدالت میں درخواست دے سکتا ہے ۔
----Accused can neither ask nor compel prosecution through Court to produce any witness as “prosecution witness”, however after recording of evidence of prosecution and examination of accused, he (accused) can put his any written statement before Court and after entering on his defence, he can apply to Court for issuance of process for compelling attendance of any witness for examination or production of any document or other thing. [P. 426] B
Prosecution Witness--
اگر ملزم یہ سمجھتا ہے کہ استغاثہ کا کوئی گواہ ، جسے استغاثہ نے پیش نہیں کیا ہے ، اس کی عرضی میں مددگار ہے ، تو وہ اسے دفاعی گواہ کے طور پر پیش کر سکتا ہے اور یہاں تک کہ اس طرح کے گواہ کو دفاعی گواہ کے طور پر طلب کرنے اور جانچ کرنے کے لیے عدالت میں درخواست بھی کر سکتا ہے ۔
----If accused considers that any prosecution witness, not produced by prosecution, is helpful to his plea, then he can produce him as defence witness and even can apply to Court for summoning and examining such witness as defence witness. [Pp. 426 & 427] C
2005 SCMR 523.
Criminal Procedure Code, 1898 (V of 1898)--
540-عدالت کا اطلاق پاور یوایس ۔ 540 ، Cr.P.C. کسی شخص کو طلب کرنا اگر اس کا ثبوت مقدمے کے منصفانہ فیصلے کے لیے ضروری معلوم ہوتا ہے - یہ کہنے کی ضرورت نہیں ہے کہ چشم دید گواہی کو ثابت کرنے کے لیے چشم دید گواہوں کی تعداد اہم نہیں ہے بلکہ چشم دید گواہ کی گواہی کا معیار متعلقہ ہے اور یہاں تک کہ واحد چشم دید گواہ ، جس کا ثبوت اعتماد پیدا کرنے والا اور قابل اعتماد معلوم ہوتا ہے ، پر ملزم کو سزا دینے کے لیے بھروسہ کیا جا سکتا ہے ۔ تاہم ، اگر استغاثہ کے چشم دید گواہوں کی تعداد موجود ہے اور ان میں سے ایک زخمی بھی ہے ، تو اگرچہ وہ چشم دید گواہوں کے زمرے میں ہے پھر بھی واقعہ میں زخمی ہونے کی وجہ سے ، اس کی گواہی کی افادیت اور کشش غیر زخمی چشم دید گواہ کے مقابلے میں بہت زیادہ ہے ۔ - اگر اسے (زخمی گواہ) استغاثہ کے ذریعے پیش نہیں کیا گیا ہے ، تو عدالت کیس کے منصفانہ فیصلے کے لیے اسے طلب کر سکتی ہے ؛ اسی طرح ، تفتیشی افسر ، جس نے کیس کی تحقیقات کے دوران متعلقہ شواہد اکٹھے کیے ہیں ، ڈاکٹر ، جس نے کیس میں پوسٹ مارٹم معائنہ/طبی معائنہ کیا ہے یا کوئی اور ماہر گواہ ، جس نے کسی متعلقہ حقیقت کی رائے دی ہے اور اس کے ثبوت کا کیس کی قسمت سے براہ راست تعلق ہے ، کو "کورٹ وٹنس" یو/ایس کے طور پر طلب کیا جا سکتا ہے ۔ 540 Cr.P.C-- ہر مجرمانہ کیس کے اپنے مخصوص حقائق اور حالات ہوتے ہیں اور اسی کو سیکشن 540 ، Cr.P.C کے تحت عدالت کی طرف سے طاقت کا استعمال کرتے وقت ذہن میں رکھنا پڑتا ہے.
----S. 540--Ample power of Court u/S. 540, Cr.P.C. to summon examine any person if his evidence appears to be essential for just decision of case-- It goes without saying that number of eye-witnesses does not matter for proving ocular account rather quality of testimony of eye-witness is relevant and even single eye-witness, whose evidence appears to be confidence inspiring and trustworthy, can be relied for convicting accused--However, if there are number of prosecution eye-witnesses and one of them is injured also, then though he is in category of eye-witnesses yet being injured in occurrence, efficacy and gravity of his testimony is much more as compared to unhurt eye-witness--If he (injured witness) has not been produced by prosecution, then Court can summon him for just decision of case; similarly, Investigating Officer, who has collected relevant pieces of evidence during investigation of case, doctor, who has conducted postmortem examination/medical examination in case or any other expert witness, who has given opinion of some relevant fact and his evidence has direct nexus with fate of case, can be summoned as “Court Witness” u/S. 540 Cr.P.C--Each criminal case has its own peculiar facts & circumstances and same have to be kept in mind at time of exercising power by Court under Section 540, Cr.P.C.
[P. 428] D
Ch. Babar Waheed, Advocate for Petitioner.
Mr. Haroon Rasheed, Deputy Prosecutor General for State.
Nemo (Name of learned counsel for Respondent No. 2 reflects in the Daily Cause List issued for today as apprised by Additional Registrar (Court)) for Respondent No. 2.
Date of hearing: 17.3.2025.
Judgment
Through instant revision petition, Ghulam Murtaza (petitioner) has challenged the vires of order dated 18.11.2024 passed by learned Addl. Sessions Judge, Samundari/trial Court whereby application filed by the petitioner for summoning of Abdul Hayee (mentioned as one of the cited eye-witnesses in the F.I.R.) as Court Witness under Section 540, Cr.P.C. in the case arising out of F.I.R. No. 253/2023 dated: 13.05.2023 registered under Section: 302, PPC at Police Station: Saddar Samundri, District: Faisalabad, has been dismissed; for ready reference, prayer made in this revision petition is reproduced as under:--
“It is, therefore, most respectfully prayed that this revision petition may kindly be allowed and the impugned order dated 18.11.2024 passed by the learned Addl. Sessions Judge, Samundari District Faisalabad may kindly be set aside for the sake of justice and fair play.
It is further prayed that the proceedings of the learned trial Court may kindly be suspended/stayed till the final disposal of the main criminal revision.
Any other relief which this Hon’ble Court deems fit may also be awarded.”
2. Brief however necessary facts for decision of instant petition are that Ghulam Abbas (now arrayed as respondent No. 2 in this petition) got registered case arising out of F.I.R. No. 253/2023 (mentioned above, copy whereof is available at Page No. 6 of this petition as “Annexure-A”) against Ghulam Murtaza (present petitioner) regarding murder of Hassan Raza (brother of complainant); challan report prepared under Section: 173 Cr.P.C. in the case was submitted in the Court against the petitioner; during trial of said case, Abdul Hayee, who was one of the cited eye-witnesses in the F.I.R., was given up by the prosecution being unnecessary vide statement
dated: 04.11.2024 got recorded by learned Assistant District Public Prosecutor (copy of said statement is available at Page No. 15 of this petition); petitioner filed application under Section: 540, Cr.P.C. for summoning Abdul Hayee (mentioned above) as Court Witness (copy of said application is available at Page No. 11-12 of this petition as “Annexure-B1”), which was dismissed vide order dated: 18.11.2024 passed by learned Additional Sessions Judge, Samundri/trial Court (copy of the order is available at Page No. 13-14 of this petition as “Annexure-C”) which order has been challenged by present petitioner through instant revision petition (hereinafter to be referred as “impugned order”) and relevant portion of the same is hereby reproduced as under:
“Learned defence counsel has submitted an application on behalf of accused Ghulam Murtaza alias Toti for summoning given up prosecution witness Abdul as Court witness U/S 540 of Cr.PC for just decision of the case as he is natural and material witness of the occurrence. Learned ADPP for the state assisted by learned counsel for complainant vehemently controverted contentions of the petitioner/accused and submitted that oral as well as documentary evidence has been recorded in the case and prosecution witness Abdul Hayee was given up by complainant on having suspicion of his mixing up with petitioner/accused being his close relative. He further submitted that prosecution has produced complainant and other PW as eye-witnesses of the occurrence in order to establish prospection case and given up PW Abdul Hayee being unnecessary. Learned ADPP for the state submitted that case is fixed for recording of statement of petitioner/accused U/S 342 of Cr.PC and at this stage petitioner/accused submitted this application as a device just to linger on the proceedings. Keeping in view the above mentioned facts and circumstances, application of petitioner/accused stands dismissed being devoid of any legal force and merits.”
3. Learned counsel for the petitioner submits that evidence of witness namely Abdul Hayee (mentioned above) is necessary for just decision of the case therefore impugned order is against the law as well as facts of the case. He finally prays for setting-aside the impugned order.
4. Learned Deputy Prosecutor General has supported the impugned order while submitting that petitioner is at liberty to summon Abdul Hayee (mentioned above) as witness in his defence.
5. Arguments heard. Record perused.
6. Though approach of the Court while conducting trial of criminal case should be inquisitorial and not adversarial yet it is worth mentioning here that trial Court has to reach at just decision of the case on the basis of evidence produced before it and decide that either guilt of the accused has been proved or not, and trial Court cannot act as agency making inquest for preparing the inquest report and there is difference among investigation, inquiry and trial.
Scheme of relevant law regarding recording of evidence in case before the Court of Sessions is available under Chapter XXII-A of the Code of Criminal Procedure, 1898 and Section 265-F, Cr.P.C. is reproduced below in this regard for ready reference:
“265-F. Evidence for prosecution.--(1) If the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution:
Provided that the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
(2) 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.
(3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing.
(4) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.
(5) If the accused puts in any written statement, the Court shall file it with the record.
(6) If the accused, or any one of the several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence.
(7) If the accused, or any one of several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing.”
By now it is well settled that it is prerogative of prosecution to produce evidence/witness of its own choice to prove its case and in this regard, guidance has been sought from the case of “Saeed Khan and 5 others versus The State and another” (2008 SCMR 849) and relevant portion from the same is hereby reproduced as under:
“It is prerogative of prosecution to produce evidence as may be necessary, to prove the charge and may give up the witnesses after sufficient evidence is brought on record. No inference can be drawn about the testimony of the remaining witnesses. In case the defence relies on the fact that they do not support the case of prosecution they can always be examined in defence. No adverse presumption is to be drawn in the absence of any positive evidence as held by this Court in the case of Mazhar Ali v. The State 2005 SCMR 523.”
Accused can neither ask nor compel the prosecution through Court to produce any witness as “prosecution witness”, however after recording of evidence of prosecution and examination of the accused, he (accused) can put his any written statement before the Court and after entering on his defence, he can apply to the Court for issuance of process for compelling the attendance of any witness for examination or production of any document or other thing.
It is relevant to mention here that if accused considers that any prosecution witness, not produced by the prosecution, is helpful to his plea, then he can produce him as defence witness and even can apply to the Court for summoning and examining such witness as defence witness; in this regard, case of “Mazhar Ali versus The State” (2005 SCMR 523) can be advantageously referred and relevant portion from the same is hereby reproduced as under:--
“The next plea of the learned counsel for the petitioner that other Advocates whose offices chambers were adjacent to the office of Mr. Zamurad Khan, Advocate, were not examined as prosecution witness and if they, would have been examined they would have not supported, the prosecution case. We do not find merit in the said plea as well considering it is the prerogative of the prosecution to examine their witnesses who are considered necessary for its case considering also that onlookers are not prepared to depose in Court about what they saw so as not to risk the animosity of assassins or his partisans and in case the petitioner wanted to examine the Advocates whose offices are said to be adjacent to the place of occurrence, he could have examined them in defence but having failed to avail that option/right he cannot be permitted to raise the said plea.”
However, Court has ample power under Section: 540, Cr.P.C. to summon or examine any person if his evidence appears to be essential for just decision of the case; for ready reference, Section: 540, Cr.P.C. is hereby reproduced as under:--
“540. Power to summon material witness or examine persons 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.”
Now crucial point involved in this petition/case is that whether evidence of Abdul Hayee (mentioned as one of the eye-witnesses in the F.I.R.) was necessary for just decision of the case or not? As per Crime Report (F.I.R.), Ghulam Abbas (complainant), Muhammad Shahid Javed and Abdul Hayee were cited as eye-witnesses of the occurrence, so their evidence was of one and the same account regarding one and the same fact i.e. ocular account. Ghulam Abbas (complainant) and Muhammad Shahid Javed (both aforementioned eye-witnesses) appeared before the Court during trial of the case and examined as PW-6 and PW-7, respectively; thereafter, prosecution gave up Abdul Hayee (another cited eye-witness of the occurrence) while considering him as unnecessary.
It goes without saying that number of eye-witnesses does not matter for proving the ocular account rather quality of testimony of the eye-witness is relevant and even single eye-witness, whose evidence appears to be confidence inspiring and trustworthy, can be relied for convicting the accused. However, if there are number of prosecution eye-witnesses and one of them is injured also, then though he is in category of eye-witnesses yet being injured in the occurrence, efficacy and gravity of his testimony is much more as compared to unhurt eye-witness. Therefore, if he (injured witness) has not been produced by the prosecution, then Court can summon him for just decision of the case; similarly, Investigating Officer, who has collected relevant pieces of evidence during investigation of the case, the doctor, who has conducted postmortem examination/medical examination in the case or any other expert witness, who has given opinion of some relevant fact and his evidence has direct nexus with fate of the case, can be summoned as “Court Witness” under Section 540 Cr.P.C. Needless to add that each criminal case has its own peculiar facts & circumstances and same have to be kept in mind at the time of exercising power by the Court under Section 540, Cr.P.C.
In this case, two eye-witnesses i.e. Ghulam Abbas (complainant/PW-6) and Muhammad Shahid Javed (PW-7) were considered as sufficient for proving ocular account by the prosecution, therefore, Abdul Hayee (who was witness of the same set i.e. ocular account), was given up being unnecessary and since he was not injured witness of the occurrence and even not having more gravity/ significance in the testimony from any point of view as compared to Ghulam Abbas (complainant/PW-6) and Muhammad Shahid Javed (PW-7), hence in such circumstances, now evidence of Abdul Hayee was not necessary for just decision of the case and thus he does not fall in the category of the witnesses, who can be summoned as Court Witnesses under Section 540, Cr.P.C.
Nutshell is that there is no illegality in the impugned order rather same has been passed while keeping in view the settled principles of law on the subject as well as peculiar facts of the case, hence, same needs no interference by this Court. Resultantly, instant revision petition is without any substance and is hereby dismissed. Interim injunctive order dated 06.02.2025 passed by this Court in Crl. Misc. No. 01/2024 is hereby recalled.
(A.A.K.) Revision dismissed
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